Experiences from the Caribbean Emergency Legislation Project

Editor's Notes

1. Component 1 – The activities of this component will support the development of recommendations to improve the legal and institutional frameworks related to state of emergency, and budget appropriation and execution in emergency situations by: (a) analyzing the existing legal and institutional frameworks in the countries; (b) conducting a comparative analysis of these frameworks in other regions; and (c) identifying best practices and formulating recommendations to revise state of emergency legislation and administrative procedures. The expected outcome from the execution of these activities is that needs will be identified and recommendations made to improve legal and institutional frameworks during a state of emergency Component 2 - This component involves initiating dialogue at both the national and regional levels on how to improve state of emergency legislation. The dialogue will be guided by the analytical findings and recommendations arising out of Component 1, and will manifest through: (a) conducting national workshops in select countries, with experts engaged in natural disaster emergency management, budget appropriation, and legislative reform; and (b) conducting a regional workshop to discuss: the findings and recommendations of the legal and institutional framework analysis, and the steps that may be taken to implement reforms. It is expected that activities under this component will yield a participatory assessment of the state of the legal and institutional frameworks in the Caribbean, with recommendations for improvement offered.
2. Regarding the constitutional framework: In most of the project countries (except Trinidad and Tobago, the Dominican Republic and Haiti, where it is the President), the constitution provides that it is the Governor General (who acts on the advise of the Prime Minister) who may declare, by Proclamation, a state of emergency. The constitutions also indicate the circumstance which may give rise to the declaration, and they include: earthquake, hurricane, flood, fire, outbreak of pestilence, or outbreak of infectious disease . It also establishes the circumstances under which a declaration of public emergency may lapse, be extended, endure, cease to have effect or be revoked by the Governor-General or the House of Parliament. The duration of a state of public emergency can range from a few days to well over a year (as indicated in Haiti where a state of emergency was declared for 18months as a result of the recent catastrophic earthquake). Regarding the Emergency Powers Acts – most of the project countries have enacted this or similar legislation. The Act, in essence, gives further life to the provisions of the constitution empowering the Governor General to declare a state of emergency and in some countries such as Saint Vincent and the Grenadines, speaks to additional powers which are granted to the Prime Minister. The Act specifies more clearly the circumstances under which the Governor General may declare a SOE, for example, in The Emergency Powers Act of Antigua and Barbuda Section 3 provides , the Governor General to, by proclamation, to declare a state of emergency if it appears to him that conditions in the state are as such that is “… likely to endanger the maintenance of public order or the defence of Antigua and Barbuda or the maintenance of the public safety or the defence of the community or any substantial portion of the community or any supplies or services essential to the life of the community...” The exercise of the power by the Governor General must be on the advice of the Cabinet. Some jurisdictions, such as A&B, also enact supplementary legislation such as the Emergency Powers (Hurricane, Earthquake, Fire or Flood) Act (1992) supplements the aforementioned Emergency Powers Act and specifically allows the Cabinet to declare a State of Emergency where any hurricane, earthquake, fire or flood occurs. Regarding the Disaster Management Acts: Many of the project countries have enacted Disaster Management Acts. The Acts often confirm the authority of the Governor General/President to Declare a state of emergency or disaster. However, the Acts tend to go further by establishing a national disaster management body or agency and identifying its roles and responsibilities. Thus for example, in Jamaica, the Disaster Preparedness and Emergency Management Act (1993) established the Office of Disaster Preparedness and Emergency Management (ODPEM). The Act, also, among other things outlines the role of the ODPEM to include: advance disaster preparedness and emergency management measures in Jamaica by facilitating and co-coordinating the development and implementation of integrated disaster management. Regarding financial provisions: Most of the project countries did not have financial provisions established in statute specifically addressing disasters. Except for example, the Dominican Republic where State Law for Budget No 423/06, establishes that 1% of Natl. Budget should go to the National Disaster Fund. In other project countries, the approach is somewhat different. While the Finance Acts in many of the countries do not specifically speak to funds directly for natural disasters they provide for a Contingency Fund which may be accessed in times of emergency. For example, in Antigua and Barbuda, while the Finance Administration Act does not make any clear provision for emergency and disasters, Section 30 provides for emergency expenditure, special warrants and the Contingency Fund which may be deemed to apply to emergencies. Another example: In Grenada the national annual estimates of revenue and expenditure allocates resources to NADMA for disaster and emergency situations. However, monies are allocated for recurrent expenditure only. The Ministry of Finance, Planning & Development provides budgetary support for emergency expenditure to design, update, test and evaluate the continuity of operations and emergency response plans and procedures. The Ministry provides estimates for the amounts of financial and other relief and rehabilitation requirements; collects, collates and maintains damage statistics and assists with co-ordination of supplies and other assistance received by government and non-governmental organizations. the Parliament appropriates monies toward disaster management within the annual budgetary allocations to governmental entities. Funds are appropriated to the Ministry with responsibility for disaster under which ODM falls and then the necessary payments are made to ODM or purchases made to meet the needs of ODM . A contingency budget is also made available to ODM. Should a disaster actually occur, the Ministry of Finance issues funds to agencies based on the responsibilities they discharge. The amount of the actual disbursement takes into account the results of an assessment of the disaster. The Minister of Finance must authorize the disbursement. All of the project countries have a national disaster management office. For example, in Dominica the National Emergency Planning Organization (NEPO) is ‘the government organization that has responsibility for the planning and organization of counter-disaster measures at central level’. The Prime Minister is the chairman of the NEPO while the National Disaster Coordinator is the secretary to the NEPO. NEPO established a National Advisory Committee which develops and recommends policies, plans and guidelines for the prevention, mitigation, preparedness, response, and recovery measures for Dominica. According to the National Disaster Plan in the absence of the President, the line of succession for declaring a national disaster and authority is the Prime Minister, the Minister for Communications, Works and Housing, Cabinet Secretary and the Permanent Secretary of the Ministry of Communications, Works and Housing. The Office of Disaster Management (ODM) is another key institution although it does not have a separate status and personality in law. It was established in response to recent increases in the incidence of natural disasters particularly hurricanes. ODM is responsible for the management, coordination and response to disasters in response to which the Office is in the process of adopting a comprehensive Disaster Management framework that will include mitigation, response and recovery. ODM is required to monitor and supervise any activity which may have bearing on the level of preparedness, prevention and safety in the society . Regarding the other institutions, for example, in Grenada all government agencies and ministries are responsible for designing their own continuity of operations and emergency response plans . Further, As a general rule, Government agencies and officers will continue to exercise their normal functions during a disaster, but in some cases, special additional responsibilities will be assigned. Several government bodies are vested with powers and responsibilities during disaster and emergency situations. They include the Office of the Prime Minister as Chair of the National Disaster Management Council with responsibility to: Co-ordinate all response. Relief and rehabilitation activities from the Emergency Operation Centre during emergencies and disasters. Declare a National Disaster when necessary. Co-ordinate all the reconstruction activities. Also for example, in Jamaica : virtually all Ministries of Government have some place in disaster and emergency response. The police, fire services, and coast guard secure essential services and vulnerable points, provide crowd and traffic control, evacuation and fire and rescue.
3. Many of the project countries do not have the necessary implementing regulations to accompany the disaster law. So often times the law is implemented in an ad-hoc way. Thus it is recommended, as in for example Barbados, that there be established strong implementation strategies which should involve the provision of adequate resources (human, information, technological) to fully operationalize them. Further, in T&T while the Disaster Measures Act deals with the declaration by the President that a “disaster area” exists, no specific regulations or subsidiary legislation have been prepared under the Act. Regarding this lack of legislative authority, Grenada (National Disaster Management Agency – NaDMA) and Trinidad and Tobago are key examples. Legislative authority is critical to giving not only credibility to the agency, but also providing clear and specific guidance as to roles and responsibilities. Regarding T&T specifically, the lack of legislative authority of the ODPM with clear specifications of its identified role as the coordinating agency of disaster management efforts. While there are many pieces of legislation that are germane to the management of disasters, including those that govern the responding agencies such as the TTPS, TTFS and TTDF, there is no cohesive spearheading legislation that purports to coordinate and direct the activities of these individual agencies, as is necessary for the ‘all-hazard approach’ of ODPM Thus, Programmes directed towards local communities to increase their awareness and understanding, build capacity and knowledge to mitigate and prepare for emergencies, and implement action plans to reduce hazards and risks must be undertaken as important capacity building initiatives For example in T&T many supporting agencies do not possess any plan or manual for disaster preparedness, response, recovery or mitigation.
4. For the purposes of the project, best practices was defined as A technique or methodology that, through experience and research, has reliably led to a desired or optimum result; A practice which is most appropriate under the circumstances given external and systematic forces. These are not merely practices which are being used by the benchmarked territories but are practices which have been tried, tested and modified based on any weaknesses. In attempting to identify the best practices with respect to disaster management legislation and institutional framework, we analyzed and isolated countries that met basic similar criteria: disaster hazard risk exposure; small island states; similar governmental structures; recent disaster development and economic similarities. The benchmarked territories met at least 3 of the desired criteria. In terms of disaster declarations: DEFINITION The definition used in legislation should not be too restrictive so as to limit the applicability of the disaster declaration and its attendant benefits (funding, power to regulate and suspend rights etc). e.g. Jamaica has had difficulty in using the declaration for disaster purposes as it relates to limited disaster areas - Attempted to utilize in the past for hurricanes; challenges in gazetting and defining the area; there were no boundaries to specifically define the area – the boundaries to be used was not sufficient and difficulty in defining the population. PROCEDURE The authority to make the declaration and upon whose advise should be clearly demonstrated in the legislation; further the legislation should have a hierarchy of individuals with such authority in case of unavailability The provisions must discourage arbitrary exercise of powers and prohibit abuse The declaration should be disseminated via medium that allows for the declaration to be communicated to the widest possible audience within the shortest period of time Duration Flexibility should be provided regarding the duration of the declaration having regard to the actual circumstances which originally caused the declaration to be made The declaration should not expire while the disaster conditions continue The legislation should clearly address declaration duration and the mechanism to end the declaration conditions Powers The declaration and accompanying instruments should be specific as regards the powers to be exercised and the person or agency exercising those powers; Powers which have been suspended or varied should be clearly identified in the declaration documentation; and Powers of coordination should also be clearly expressed in the instrument used to initiate the declaration There should be the ability to create emergency regulations and legislation quickly to adequately address the disaster conditions and attendant circumstances Regarding funding mechanisms: The funding mechanism provides a dedicated annual and recurring funds supported with a line item on the national budget. Established as a supplementary or contingency source of funding that can be accessed when primary funds for disaster recovery and rehabilitation are exhausted or disaster exceeds a certain magnitude. The allocation of funds based on a realistic risk assessment of future disaster costs. This is directly related to ensuring The desired characteristics and underlying principles for disaster funding methods include the following key elements: Adequacy – disaster budgets throughout the region are grossly inadequate and tend to be supplemented by international funding arrangements, including aid and loans. Notwithstanding, target countries must adopt a dedicated disaster funding source, such as a disaster relief fund, which is a recurrent line item on the national budget. Likewise, appropriate legislation and regulation should also be adopted to secure the integrity of that primary funding source by preventing funds from being re-allocated to other purposes and to prevent misappropriation and mismanagement of disaster funds. Risk Exposure - Risk analysis both pre and post disaster will be critical in the target countries as developing accurate or near accurate forecasts of funding requirements is essential to determining the adequacy of funding Risk Pooling - Given the scarcity of resources, all target countries should seek to defray the risks and costs associated with disaster risk reduction, response and recovery by pooling risks between the public and private sectors, as well as regional and international counterparts, where feasible. E.g. India: In India, once a disaster occurs that results in disbursements from the Calamity Relief Fund a corresponding levy of a special surcharge/cess is imposed to recoup the funds disbursed from the fund. This mechanism offsets the cost of disaster risk to the private sector, thereby acting as a risk sharing mechanism. Moral Hazard - The funding mechanism should encourage, by inclusion of incentives, the adoption of mitigation programs and initiatives, by key government and private sector stakeholders, which will lessen the risks and costs of disaster events, thereby reducing the funding burden on the national government. E.g. South Africa: In South Africa municipal and provincial governments are required to incorporate adequate funding into their respective budgets and implement prevention and mitigation measures that will reduce their exposure to the liability associated with natural disasters, as a condition precedent to obtaining national assistance. Legislation - Disaster funding mechanisms should be supported by sound legislative enactments that clearly define the parameters of any disaster management funding scheme, secures the integrity of the funding mechanism by protecting the funding source from budgetary re-allocation and by legislatively penalising misappropriation. Governance & Accountability - Disaster funds should be supported by procedures and guidelines that ensure impartiality, accountability, efficiency and discourage waste. Strict enforcement measures to ensure that disaster funds are not misappropriated or distributed prejudicially Telecommunications The Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations is a global treaty which outlines a comprehensive regulatory framework for international cooperation in disasters with respect to the use of life-saving telecommunications equipment. The Tampere Convention which went into force in 2005: Countries which have ratified: Barbados, Dominica, Haiti, St. Lucia Signed but not localized: St. Vincent & Grenadines International Aid Clear provisions for the initiation and termination of international aid relief. Privileges and immunities with respect to immigration & customs. Privileges and immunities with respect to goods & equipment (including medical supplies). Privileges and immunities with respect to taxes, tariffs and duty Privileges and immunities with respect to transportation (freedom of movement, waiver of restrictions, tolls, etc. Legal status to international organization in domestic jurisdiction (operate, contract, sue) and immunity from prosecution for relief activities . Security & Health Inclusion in the definitions of disasters and emergencies The importance of coordination among representative and stakeholder agencies is once again highlighted as an important element of best practices in response to disasters and emergencies Duration – Depending on the nature of the threat, there would be a need to implement a longer period for the duration of emergency related to national security. Periods of 90 days appear to be too short to address national security emergencies. The procedure of extending emergency declarations should not be cumbersome. Lapses in renewal may permit breaches of the measures put in place; Protect constitutional rights - There is an important interaction among national security interests, established rights and human rights. The response to national security concerns should not be to the limitation of enshrined human and other rights. Health the World Health Organization is the leading authority on international health pandemics or epidemics and provides specific guidance The definition and scope of public health concerns, (diseases and pandemics) to enable the widest possible basis for action a wide definition of specific health consequences would be useful; Pre-emptive action in response to a public emergency threat in another jurisdiction is a useful practice to adopt. This can reduce the impact of the disaster on the national population; The importance of the adequacy of legislation in the absence of enabling legislation there will be delays in implementing the appropriate measures; The impact of public health measures on existing laws must be considered. Enabling laws should be strengthened while potentially restrictive laws and requirements should be suspended;
5. This is a critical component of the project as it involves peer review of the project’s findings by key national and regional stakeholders. Thus two national workshops were conducted: Grenada and Jamaica; and one regional workshop in Saint Lucia. While the First component of the project requires conducting country studies, conducting international comparative analysis and analyzing best practices; the second component involves outreach, i.e. not only raising awareness on a national level of the issues being addressed by the project and the national implications, but also validating the project findings with the project countries. Given budgetary constraints we were only able to conduct two workshops – one in Grenada, and another in Jamaica, in March of this year. These venues were selected after careful consultation with our consultant responsible for conducting the country assessments These venues were selected after careful consultation with our consultant responsible for conducting the country assessments. Some of the reasons for selecting the countries include: Grenada : experience with Hurricane Ivan is a recent example of the implementation of all aspects of disaster response in the Caribbean, from which there are many lessons that are to be learned. For example, Hurricane Ivan highlighted certain challenges in the operation of the Disaster Plan itself. Following Hurricane Ivan both telecommunications and electricity systems failed for most of the island . Further, after Hurricane Ivan the relief supply distribution system proved faulty and required the intervention of the regional disaster management institution CDEMA to draft a plan for the distribution to avoid chao s. Jamaica – Regarding JA it has been the epicenter of many catastrophic natural disasters from earthquakes to hurricanes, and given the impact of such disasters, disaster management is high on the national agenda. Further, Jamaica’s Disaster Management Act has undergone review , and thus the project could certainly not only benefit from the findings from the review process, but also but also share its own findings with Jamaica to enhance the process and potentially the results. The main objective of the national workshops was to provide an overview of key issues in disaster legislation and the CELP, and serve as forum to share project findings and national experiences regarding disaster and emergency management, budget appropriation and execution, transparency and accountability, and disaster risk reductions tools such as insurance. In furthering these objectives the OAS invited various stakeholders to present and attend the meeting. Presentations were made by national stakeholders including : for Jamaica- ODPEM, JRC, Ministry of Finance, and a representative from the insurance sector; and for Grenada: NADMA, GRC, Ministry of Finance, rep from insurance sector. The rationale behind conducting working groups was to focus the discussion on specific themes to support the identification of specific recommendations. The groups were divided into thematic areas: legal and institutional framework, financial mechanisms, and transparency and accountability. Best practices were considered in each of these areas. While there was an effort to ensure that participants with certain specific knowledge and experience were matched ideally, we also wanted the group to have an integrated perspective, thus the mixed group approach. Each group was given a set of pre-composed questions that were compiled with the input of the project’s consultants. These questions served to merely guide/focus the discussion with a view to encouraging specific recommendations. Some of the questions considered included: What are the factors contributing to delay in adopting legislative amendments? What are the critical legislative deficiencies in the Caribbean? How can the institutional structure be reformed to better accommodate the current circumstances with respect to disaster management? What are the best mechanisms for sustainable disaster funding? How can donor funding be converted into sustainable disaster funding? How can the private sector in the Caribbean contribute/share the costs of disaster funding? What is an appropriate structure for disaster management activities? What should be the role of the central and local governments in transparency and accountability? How should the role of the central and local government in transparency and accountability be limited? What are the key factors that lead to deficiency in accountability and transparency? Recommendations Establish a legislative framework for NaDMA Clarify and define functions of the GRCS and ad-hoc organizations Provide continuous training for community volunteers and conduct simulation exercises in schools and communities. Share the cost of disaster funding Build sensible partnerships with the private sector and introduce disaster management incentives to encourage investment and participation in community projects. JA: Establish guidelines/regulations to complement existing legislation Update or amend relevant legislation where necessary ODPEM should complete the checklist for declaring a disaster and a comprehensive disaster management policy Encourage movement towards individual responsibility, and create awareness among families, and communities on how to react when an emergency has been declared. Encourage the private sector to make more donations. Create incentives for the private sector to give money Establish a national disaster funding scheme similar to those established for education and housing, and insure the fund Establish a Mitigation Fund Disaster reporting at the Parliamentary level.
6. In terms of legislation it may be useful to determine whether it’s a complete overhaul or mere fine tuning that is needed. Addditionally in terms of financing, the risk bearing systems must be broadened. Further on this pointestablish a substantial and separate national fund specifically for disaster management and emergency response. Moreover, the allocation of funds must be based on a realistic risk assessment of future disaster costs. Such funding mechanisms should be properly entrenched in national or local law with the adoption of appropriate regulations ; and (iii) disaster funds should be supported by procedures and guidelines that ensure impartiality, accountability, efficiency and discourage waste.