A St James shopkeeper is suing Attorney General Dale Marshall and Commissioner of Police Tyrone Griffith, charging that Government has acted unlawfully and beyond its legal power of authority with respect to measures implemented following amendment of the Emergency Management (Amendment) Act 2020. Government has introduced a number of restrictive protocols in the fight to bring the spiking COVID-19 pandemic in Barbados under control.
Benson Straker, an accountant and managing director of Benson Minimart Ltd., of No. 44 Thorpes Terrace, St James, has accused Government of acting ultra vires in the introduction of the Emergency Management (Covid-19)(No.3) Order and the issuing of the Emergency Management (Covid-19) (Curfew)(No.3) Directive 2021. The measures, have among other things, limited free movement and activities, occasioned the shutdown of some businesses and in several instances led to citizens being arrested, incarcerated or fined for breaches of the emergency legislation.
Straker, who is represented by attorney-at-law Neil Marshall, said in his action that Prime Minister Mia Mottley on January 30, 2021, in applying the emergency laws, gave a directive that from February 3 to 17, every non-essential service should remain closed, except supermarkets and exempted minimarts between the hours of 8 a.m. and 4 p.m., Monday to Friday. A list of the exempted minimarts was subsequently published.
Straker in his affidavit stated that on February 3 he opened for business at 8 a.m. He added that about 9 a.m. his establishment was visited by police officers and he was ordered to close and remain closed until February 17. The claimant said his attorney wrote a letter to the Commissioner of Police, the first defendant, seeking an explanation for the action of the police officers. He also sent a copy of the letter to the station sergeant at Holetown Police Station, the jurisdiction in which his minimart is located. He revealed that he got no response from anyone.
The claimant said after further consultation with his legal representative it was determined that the police had no authority under Government’s directives to order his minimart to be closed, nor was there any statutory authority to do so. Straker’s legal counsel advised him that not only were the directives in the emergency legislation discriminatory but they were in direct breach of Barbados’ Constitution. Section 23(1)(a)(b) of the Constitution provides that “no law shall make any provision that is discriminatory either of itself or in its effect or treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of any functions of any public office or any public authority….”
Marshall pointed out that during the lockdown certain shops in the absence of any legal definition were arbitrarily styled as supermarkets and allowed to remain open under Government’s emergency directives, while other shops were arbitrarily styled as minimarts, corner shops, rum shops and village shops and were directed to close without explanation. Barbados’ Shops Act refers only to “shops” and the attorney-at-law in his action, contended that Government’s directives gave no interpretation of what constituted or differentiated the various types of shops.
The lawsuit brought against Government’s principal legal officer and the Commissioner of Police also claimed that the sections of the emergency directives which created offences for breaches of the order and stipulated fines and imprisonment were also ultra vires. The affidavit indicated that as statutory instruments the order and directive of the emergency legislation were secondary instruments and could not override any law that already prescribed a rule of general law.
Marshall charged that the actions of the authorities had placed Straker “in a state of uncertainty and constantly under the threat of punitive action by the authorities and has generally imposed hardship on him. He argued that the Emergency Management (COVID-19)(No.3) Order, 2020, made by the Cabinet of Barbados was unlawful insofar as it has not been given legal sanction by being subjected to an affirmative or negative resolution by the Parliament of Barbados. He said Cabinet had acted beyond its legal scope by giving the Attorney General, like the Prime Minister, the powers conferred to them in the emergency directives.
Two weeks ago, Opposition Senator and trade unionist Caswell Franklyn warned Government that it was acting illegally with the measures imposed in the emergency legislation.
“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 Minister that curtailed our constitutional rights would be illegal and of no effect,” he said then, adding Government should have invoked the provisions of the Emergency Powers Act, 1939-3.
Franklyn explained that the amendments made to the Emergency Management Act in 2020 had not faithfully re-enacted the relevant provisions of the Emergency Powers Act. He suggested that persons who had been arrested, charged and penalized by the law courts under the directives might have grounds for legal recourse against the Government. ([email protected])