Two recent legal challenges brought by attorneys-at-law Neil Marshall and Michael Lashley Q.C with respect to the Emergency Management (Covid-19)(No.3) Order and the issuing of the Emergency Management (Covid-19) (Curfew)(No.3) Directive 2021, have once again brought Barbados’ legislature under close scrutiny. More importantly, though, over the next few weeks, perhaps months, but hopefully not years, Barbados’ judiciary will also be closely monitored by discerning observers at home and certainly across the region as deliberations into these matters progress.
Interestingly, the lawsuit brought by Mr. Marshall on behalf of a St James shopkeeper who is seeking redress and questioning the authority and constitutionality of the emergency legislation introduced by Government to stymie the spread of COVID-19, reached the High Court last Friday. Since the introduction of the emergency laws, several Barbadian citizens and visitors have found themselves hauled before the courts for breaches of the law. Some have been heavily fined, imprisoned or remanded by the Magistrates’ Court for breaking curfew, gathering unlawfully, non-wearing of masks and other related offences. However, last Friday’s legal challenge was set aside and deemed “not urgent” by the sitting duty judge. We understand that the practice is for the Chief Justice to review Certificates of Urgency, make that relevant determination and pass the particular matter on to a sitting judge to be heard. Last Friday’s decision by the duty judge has bewildered many in the legal fraternity and might puzzle the average Joe.
Those so far who have raised objections to the emergency laws, inclusive of Opposition Senator Caswell Franklyn, have made it abundantly clear that they are fully supportive of efforts by Government to introduce measures designed to control the spread of the pandemic in Barbados. But they have stressed that Government’s measures must be clothed in legitimacy. They have emphasized the fact that despite the pandemic there ought to be no breaches of Barbados’ Constitution and that no authority should ride roughshod over the rights of individuals. Barbados would have to be inhabited by mental eunuchs if persons did not appreciate the prudence of a national effort to mitigate the dangers posed by COVID-19.
But the likes of Mr. Marshall, Mr. Lashley, and others, have insisted that responses must be done the legitimate way. It is not enough to say that a piece of legislation is law and thus it must be obeyed. Apartheid in South Africa and segregation in the United States had the force of law in those respective countries but there were not just laws. What several legal brains are saying today is that Barbados’ emergency laws are unconstitutional, devoid of clarity in a number of instances and possessed of discriminatory directives. We will not dwell on the abilities of those in Government responsible for the draft of these emergency laws nor will we judge the efficacy of specific arguments brought by lawyers. But what we will state is that if there are a set of circumstances where Barbadian citizens are being arrested, jailed, fined or having their freedoms restricted, and constitutional questions being raised about the legitimacy of the actions taken against them, how can this be deemed “not urgent”? We suggest that there is presently nothing more “urgent” in Barbados than bringing resolution to this matter.
It would not be enough to suggest that specific time periods have expired relative to an action brought in response to a particular restrictive protocol. The laws are still present even if a one-month restriction has expired or a particular protocol has been eased. They can be reintroduced at any given moment and there should therefore be no doubts about the legitimacy of their application. Is not such a situation “urgent”? This is not a case that should be allowed to loiter on the doorsteps of the High Court for too long. Indeed, there is the possibility that litigation related to the emergency laws could reach as far as the Caribbean Court of Justice (CCJ). Does it have to come to that, especially when it relates to citizens’ constitutional rights? The CCJ has previously given Barbados’ judiciary a serious tongue-lashing dating back to Winton Campbell versus the Attorney General (2009), and subsequently, for its lack of ‘urgency’ in dealing with matters.
Perhaps persons who believe their constitutional rights have been violated by these emergency laws, should all seek redress before the law courts. Undoubtedly, this situation has the potential to ‘blow up in the face’ of the Barbados Government and expose it to a mountain of civil suits. The fact of the matter is that any citizen can demonstrate before a civil court that it is likely he or she will violate the emergency laws and also that it is likely that they will be prosecuted for it. There is no timeline on when this pandemic will end and therefore no timeline on when freedom of movement, association, and other constitutional rights will be returned unfettered to the Barbadian populace. Therefore, this matter has to be dealt with a great degree of dispatch. If protecting the constitutional rights of citizens is not viewed as urgent, or conversely, ensuring that when certain rights are needed to be temporarily compromised that restrictions have the weight of just law, then we suggest that there is much credence in Dickens’ Mr. Bumble’s assessment of the law.
