Since the government implemented various measures to combat the spread of the novel coronavirus, COVID-19, in Jamaica, there have been a number of news reports of persons being arrested for breaches of the curfew orders promulgated under the Disaster Risk Management Act (“DRMA”). In one such report, two men in St Mary were arrested and charged for allegedly hosting a gathering of more than ten (10) persons in the parish. It was also reported that a pastor of a church in St. Catherine was arrested and charged  for hosting a church service at what appeared to be a private residence. These recent reports call into question whether the prohibition on public gatherings of ten persons or more is indeed limited to public places or if it is also being construed as including gatherings at private properties.

The latest order issued under the DRMA, that is the Disaster Risk Management (Enforcement Measures) (No. 6) Order, 2020, clearly states at Order No. 8 that during the period from May 7, 2020, to May 31, 2020, subject to the exceptions listed in the Third Schedule, gatherings in any public place shall not exceed ten (10) persons at a time. The term “public place” is not defined in the order nor is it defined in the DRMA or in any previous order issued under the legislation. Interestingly, “public place” is defined under the Intepretation Act which states that it “includes every public highway, street, road, square, court, alley, lane, bridleway, footway, parade, wharf, jetty, quay, bridge, public garden or open space, and every theatre, place of public entertainment of any kind, or other place of general resort, admission to which is obtained by payment, or to which the public have access”. While that definition is by no means exhaustive, one wonders whether, having regard to the examples given under the Interpretation Act, “public place” ought to be construed as including churches, apartment complexes and other properties which are privately owned by natural or juristic persons.

It is curious that the government did not define “public place” in the DRMA orders given that the prohibition on public gatherings of more than ten (10) persons is one of the most critical enforcement measures they have implemented in response to the COVID-19 pandemic. It is also appears that the drafters of DRMA orders did not intend for the definition of public place under the Interpretation Act to apply to the orders since some of the places which are exempt from the restriction under the orders, such as banks and other financial institutions, credit unions and factories, are not included in the definition under the Interpretation Act nor does it appear that the framers of that Act intended for the definition to include such places.  What then is a public place? Is it a breach of the orders for a citizen to host an event with more than ten (10) persons on privately owned property? These are matters which need to be clarified going forward as it has created some confusion as to what constitutes a breach of the order and such a gap in the law could ultimately undermine the effectiveness of the government’s response to COVID-19.