Disclaimer: The views and opinions expressed by this author are their own and do not represent the official position of the Barbados Today.
by Caswell Franklyn
For months, I have contemplated but resisted writing about the rule of law, or lack thereof, in Barbados under two consecutive states of emergency. All that changed after I read a WhatsApp message sent to me from an unknown person. I simply said: “If you allow the government to break the law in an emergency, they will create emergencies to break the law.
In order to deal with the COVID-19 pandemic, the Government of Barbados decided that it would institute a state of emergency. Rather than use the existing provisions, Government sidestepped the Constitution and the 1939 Emergency Powers Act and amended the Emergency Management Act to provide for a public health emergency. They claimed that the existing Laws of Barbados did not provide for such. Notwithstanding Government’s claim, I contend that there are ample laws to institute any such emergency.
Section 25.(1) of the Constitution permits the Governor-General to declare that a state of emergency exists. Section 25.(2) goes on to state, in part:
A proclamation made by the Governor-General shall not be effective for the purposes of subsection (1) unless it is declared therein that the Governor-General is satisfied – (a) that a public emergency has arisen as a result of the imminence of a state of war between Barbados and another State or as a result of the occurrence of any earthquake, hurricane, flood, fire, outbreak of pestilence, outbreak of infectious disease or other calamity, whether similar to the foregoing or not…
The power in the Constitution to declare a state of emergency as a result of the “outbreak of infectious disease” immediately gives the lie to Government’s claim that there were no provisions to cater to a public health emergency.
Under a state of public emergency government can, and in this case, restrict citizens from enjoying their constitutional right. The mechanism for doing so in the current emergency is a series of directives issued by the Prime Minister.
I make bold to say that the Prime Minister cannot use this mechanism to curtail constitutional rights and freedoms since the enabling legislation did not amend or alter the Constitution of Barbados in anyway.
To my mind, since the Emergency Management (Amendment) Act, 2020 did not amend or alter the Constitution; any directives issued by the Prime Ministerthat curtailed our constitutional rights would be illegal and of no effect.
The obvious question would therefore be: How can government declare a state of emergency to protect the country from the ravages of this COVID-19 pandemic? The simple answer would be that government should have invoked the provisions of the Emergency Powers Act, 1939-3.
I readily admit that many of the provisions of the Emergency Powers Act would offend the Constitution, if they were passed today. Be that as it may, the Constitution itself at section 26 saved laws that would be unconstitutional if there were passed prior to November 30, 1966.
Section 26 of the Constitution also allows the government to re-enact an existing law without alteration or if altered those alterations would not render the law inconsistent with the human rights provisions of the Constitution, that is sections 12 to 23. The amendments made to the Emergency Management Act in 2020 have not faithfully re-enacted the relevant provisions of the Emergency Powers Act.
For example, all those orders/directives made under the Emergency Powers Act must, in accordance with section 3.(4) shall be laid before Parliament. It states:
Any orders so made shall be laid before Parliament as soon as may be after they are made and shall not continue in force after the expiration of 7 days from the time when there are so laid unless a resolution is passed by both Houses providing for the continuation.
Section 33.(5) of the Emergency Management Act, which required the Government to lay emergency orders before Parliament, was repealed by the 2020 amendments.
It is therefore obvious to me that this Government wanted no oversight when it implemented the public health emergency.
Section 48.(1) of the Constitution provides that Parliament may make laws for the peace, order and good government of Barbados. It is therefore my view that even if enabling legislation allows the Prime Minister or anyone else to make rules, they must be approved by Parliament. In this present state of emergency the Prime Minister is making laws for the peace, order and good government of Barbados without any reference to Parliament.
I am now wondering if persons, who were penalised by the courts for infringing these directives, have any remedy against the state. It would appear that our Prime Minister has now become the absolute dictator of Barbados, which is not too far removed from being a despot. Could the late Prime Minister Arthur have been predicting the future.
Caswell Franklyn is an Opposition senator, trade unionist and social commentator
13 Replies to “#BTColumn – Unconstitutional lockdown”
All the law rules and regulations real time situation’s changes how you implement them.
Great you know the Constitution.. But you said any changes need to be brought before two (2) houses..
Question! Do you have that in Barbados at this point in time?
Answer: NO..with no opposition, the ruling party can do just about anything, who in the party is willing to go up against the Leader?
So those people who broke the Protocol rules, they should and will pay for putting others in harm’s way.
Finally someone is challenging the constitutionality of these utterances by the PM and now Mininster (Health)…that arbitarily infringes in a most severe way on my constitutional ,civil and human rights ..to move around
to assemble, to work to indulge in commerce ( purchase food) to worship…
Once again I state this is the man that will receive my vote come next election. He is showing clearly that he is for the people, and i agree with him that Miss Mottley’s sidestepping of the constitution is rather dictatorial and i also hope that the persons UNLAWFULLY arrested arm themselves with this knowledge and fight back in the courts.
Not sure why we are wondering when all the acts are before us. What is needed is to have our citizenry made sufficiently aware that they too, can bring the pressure necessary to move for a resignation from the PM.
So then take the Government to court to prove your point.
I totally agree with what was said here. NO DICTATORSHIP!! EVEN CONGRESS IN THE U.S MUST APPROVE WHAT THE PRESIDENT MAY SEEK TO IMPLEMENT.. VERY GOOD POINT!!
Caswell Franklyn should sue the government.
“Unconstitutional or Politically Expedient?
Considering Mr Caswell’s article – probably both!
Quite frankly… for very many years there have been and still are, in my opinion, significant problems in the political landscape of Barbados. I would go a little further, and add to Mr Caswell’s observations. Without the Separation of Powers the protections that Citizens are supposed to enjoy may well be eroded away – there will be no protections for the Citizens of Barbados.
It is supposed to be inherent in common law jurisdictions of the UK, Canada, USA, and elsewhere that if you have a Parliamentary democracy there should exist separate branches of Government; The Executive (Cabinet), Parliament (Legislature) and the Judiciary. Given that, in Barbados, the Executive and Parliament are made up of almost ALL politicians there appears to be no obvious checks & balances.
Look at the facts:
30 Parliamentary Constituencies… 29 MP’s from one party… No ELECTED opposition, a Cabinet made up of 24 MP’s, a Senate that is composed of, for the most part, choices of the Prime Minister (notwithstanding the GG can suggest her own without the PM’s advice). Even if the GG chooses her own 7 candidates and the Opposition their 2; the balance of power is still in favour towards the ruling party. Therefore, doesn’t it follow that the ability for the PM to pass through her Legislative Agenda and “control” the nations affairs becomes, probably to a greater degree, unfettered (to use the legal vernacular)?
Can you see where this is going?
The Sovereignty of Parliament is sacrosanct. That’s for the protection of the people – but without a line between Parliament and the Executive the question has to be asked, “Who is sovereign?” Since Parliament (the Legislature) is the sole authority for enacting the laws of the land, the consequential question then becomes, has the Executive become the solitary law maker?
The brand of politics in this “One Party State” will leave many onlookers wondering, like me, who controls the Island. To be quite honest… Barbados has been a one-party state for 50 years… I say that simply because there is not a lot to choose between the brand of politics between the 2 main parties. The choice for the people has become malignant – because the purpose of the separation of powers is to limit power in each branch of government.
For my part, there needs to be a party brave enough to insist the Constitution be amended to prevent the current state of affairs. There needs to be a robust 3rd party that is prepared to dig in and offer the People another choice because, since I’ve been back to visit again this year, I’ve heard people use the word Dictator way too many times.
Owen Arthur, Mr Caswell and other citizens may well have a legitimate point… without effective checks and balances aren’t you heading for a Dictatorship?
Correct me if I’m wrong.
Mr Caswell Franklyn . I have read with concerned the paragraphs written by you and in reflection of what the Constitution of Barbados states .
I could not agreed with you more , than to believed each word and letter that you’ve script .
It is really funny that the learned PM . Mottley and the AG . Marshall would allowed you to crushed what they have selected to govern this country , one have to wonder with so many attorneys of great experience would sit back and allow such Laws to be implemented without suggesting or discussing before bringing it upon society to bare .
I hope that you have not missed any of the debates on this very important matter when , and if it was held in determining the pressure this would bring to all of us .
However neither do I want to say that the Prime Minister is absolute dictator or despot but I am also interested in the persons that are vulnerable who were arrested and charged , some convicted that didn’t cried out for an appealed against their sentences or fines .
Doesn’t Lawyers play the roll of friends of the court when they see the helpless in dire need of representation anymore even them are quiet and only you talking out loud , I wonder if anybody is hearing your pleas for the poor in this country .
No one knew the PM better than the late Owen Arthur so it is safe to say yes he was predicting the future.
While I support sanctions for lawbreakers, the government must be sympathetic towards those who in the current environment find themselves caught up in doing things that they haven’t done previously. The current situation is tough on everyone and in all reality is not the fault of the average citizen but in some ways has been exasperated as the result of poor policy on the pat of government, in not implementing stricter quarantine methods regarding persons who came in. Though no methods are fool proof, such a step might have reduced the current number of cases and avoided the current miserable situation. The current quarantine methods in the UK highlights the fact that in whatever ways the Government of Barbados has been successful in the fight against Covid-19, (and it has many successes) the fatal flaw was its prior refusal or reluctance to implement tough, realistic, credible, and sustainable quarantine measures regarding those who came in. This single blunder, is possibly the catalyst for the current spike in cases, deaths, curtailing of freedoms and loss of livelihoods currently impacting the country. Therefore, Bus crawls, Parties, or other indiscretions cannot be ‘scapegoated’ for this error. Can the B’dos Government, with its battery of lawyers, credibly argue that it was not reasonably foreseeable that without the ‘strictest’ of quarantine methods, (such as in the UK where you are totally locked down for about two weeks at your own expense) that betting with ‘short stay-tourism’ which is purely ‘discretionary travel’ while ‘rehearsing and waltzing’ over quarantine protocols wasn’t more of a foolish gamble than a factual attempt at managing risk.
My question is what has happened to the vast numbers of lawyers in this country?
It is frightening, much more so than any virus, that someone who is not a trained lawyer is taking the fight to the present administration, on legal matters, and is winning so far, while “real real” lawyers, particularly the “big guns”, are lying low and playing dead.
I want a legal luminary to step forward and contradict Mr. Franlyn; tell us that he is wrong. Or forever remain the cowards and sycophants that you have shown yourselves to be.
If you can’t trust your leaders to do right in a time of crisis, your leaders cannot be trusted.