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by Dr. Ronnie Yearwood (left) and Rico J. Yearwood (right)
In this column, we want to unpack a few of the issues surrounding the Government’s Covid laws and the Constitution and welcome the fact that the Constitution seems to be working its way into living room discussion.
A soup of Emergency laws
There are three key laws to consider when discussing the Emergency laws that the Government has used to frame its Covid Directives and Orders. These are the Emergency Powers Act (1939), the Emergency Management Act (2007), which was amended in March 2020 as the Emergency Management (Amendment) Act (2020), and the Constitution of Barbados.
The Constitution of Barbados (section 25(1)) provides for a “proclamation” of a Public Emergency because of “hurricane, flood, fire, an outbreak of pestilence, an outbreak of infectious disease.” The Constitution does not provide details of how that is to be administered. That is left to legislation such as the Emergency Management (Amendment) Act (2020).
The Emergency Management (Amendment) Act (2020) provides for the same form of “proclamation” by the Governor-General as noted in the Constitution. Therefore, under the Emergency (Amendment) Act (2020) the Governor-General will issue a proclamation setting out that the Prime Minister has advised, in consultation with the Chief Medical Officer, that a Covid Emergency exists.
This has been happening under section 28A (1) of the Emergency Management (Amendment) Act (2020), not under the Constitution (section 25(2)). The language in the Emergency Management (Amendment) Act (2020) (section 28A (2)) and the Constitution (section 25(3)) states that the proclamation can remain in force for one month and not exceed six months and can be extended for not more than six months, in both instances as determined by a resolution in the House of Assembly.
Therefore, the House of Assembly does not appear involved in making the initial proclamation but in giving it continued existence. A quick look at the Parliament’s website reveals that three resolutions for this purpose were passed, the most recent dated 23 October 2020 to extend the proclamation issued on 28 September 2020, which was due to expire on 27 October 2020, to 27 March 2021. The power to make the proclamation is that of the Prime Minister in reality because it is not a discretionary power of the Governor-General.
Parliament’s role in the process appears to be more of a rubber stamp, especially if there is a supermajority, to extend the Emergency period beyond the 1-month period after the initial proclamation to create the Emergency.
Orders and Directives, more power to a Prime Minister
As in the previous Emergency Management Act (2007), now in the Emergency Management (Amendment) Act (2020), with a reference to a public health emergency, section 28 (A) 4 states that “When a proclamation of a public health emergency… is in force, it shall be lawful for Cabinet to make any Orders whatsoever it considers desirable in the public interest.” Section 28 (A) 5 of the Emergency Management (Amendment) Act (2020) importantly incorporates by reference, other laws, such as the Emergency Powers Act (1939).
The Cabinet therefore can issue Covid Orders, which a look at the Orders shows. The Cabinet in the Covid Orders is making use of the law in the Emergency Powers Act, for example, to requisition property, through the reference of the Emergency Powers Act in the Emergency Management (Amendment) Act 2020.
Additionally, the Emergency Management (Amendment) Act (2020), section 28 A (1)(6), provides that when Orders are made pursuant to subsections (4) and (5) as noted above, the Cabinet may delegate to the Prime Minister the power to make such Directives as may be required in the public interest. This is where the power for the Prime Minister to issue Covid Directives regarding curfew, that is, curtailing personal freedom and movement, appears to come from.
A look at the Covid Directives would show that they are issued by a Prime Minister and pursuant to the Covid Order.
It means that Cabinet can hand over its power to a Prime Minister to act singularly under the Emergency Management (Amendment) Act (2020). It does not seem as if this power was in the previous version of the Emergency Management Act (2007).
However, when the Cabinet issues an Order, let us ask a question, who chairs the Cabinet? Under section 70 of the Constitution, a Prime Minister is chair of the Cabinet. In effect, whether the power of the Cabinet is “delegated” to a Prime Minister as in the Emergency Management (Amendment) Act (2020) or remains exclusively with the Cabinet as in the previous Emergency Management Act, a Prime Minister is still in charge. It also means that a Prime Minister has to take all responsibility for the outcomes of the Public Emergency as a Prime Minister has singular power in managing the Public Emergency.
Rule of law
The question raised is whether the ability to affect the constitutional right of personal liberty (even though the Constitution provides that in times of Public Emergency, there can be “reasonably justifiable” measures to curtail liberty) should be a power located exclusively in a Prime Minister, or does this require broader Parliamentary involvement? And is it constitutional for a Directive via an Order, or for an Order to be the instrument given the seriousness of the issues at hand and that curfews and requisition of property affect rights guaranteed by the Constitution?
As shown above, Parliament’s role seems dwarfed by the role a Prime Minister plays, which means that a Prime Minister is operating with few checks. The law is not only for when things appear “good”, but it is also for the anomalous situation because too often we parrot the phrase of how Barbados has been blessed by good leaders and therefore everything is fine.
In fact, it is interesting that the Prime Minister supported this somewhat empty claim in a recent press conference regarding the ability of the Government to requisition property under the Emergency laws, stating that, “Everything that we have done has been fully transparent and therefore the public does not need to worry about not knowing…”
However, Barbados has to be a country ruled by law, not by the personal benevolence of its leadership or people trusting everything is fine.
The law has to provide for when leaders are “good” and “bad” and every shade in between. As observed by the Caribbean Court of Justice (CCJ) in the case of BCB Holdings Ltd v AG of Belize  CCJ 5 (AJ), the idea that a single Minister is acting in good faith or with noble motive cannot excuse or remedy an obvious overstep of jurisdiction or serious violation of fundamental constitutional principles, such as the separation of powers or rule of law.
Constitutional Implications for Democratic State
Incontrovertibly, the Prime Minister is permitted to create subsidiary legislation; but does the gravity of the circumstances warrant that without parliamentary scrutiny? Was it ever contemplated that one individual should wield the power of such magnitude to unilaterally circumscribe constitutional rights and liberties without legislative oversight? How can we purport to be a liberal constitutional democracy founded on the separation of powers and rule of law when such tremendous law-making power is concentrated in one individual and left unchecked? Is this not what the separation of powers and rule of law is to guard against? Perhaps those of us trying to dissect these issues are mere sciolists, but certainly, the CCJ is not in acknowledging in BCB Holdings Ltd v AG of Belize  CCJ 5 (AJ) that though the separation between the legislative and executive branches often appears blurred, it is erroneous to assume that there is not an important division between the functions performed by each branch.
The CCJ further added that “[t]he rights and freedoms of the citizenry and democracy itself would be imperiled if Courts permitted the executive to assume unto itself essential law-making functions in the absence of constitutional or legislative authority…keen observance by the Courts of the separation of powers principle remains vital to maintaining the checks and balances that guarantee the rule of law and democratic governance.”
Similar sentiments were articulated by the UK Supreme Court in the case of R v Prime Minister  AC 373, stating that “The conduct of a government by a Prime Minister and Cabinet collectively responsible to Parliament lies at the heart of democracy…through Parliamentary scrutiny of the delegated legislation which ministers make. . . the executive is required to report, explain and defend its actions, and citizens are protected from the arbitrary exercise of executive power.”
When a single individual has unfettered latitude to singlehandedly create and promulgate the law without checks and balances, this can potentially give the citizenry the impression, even if not the government’s intention, that the scale is tipping against democracy.
There are broad and important Constitutional issues here about the role and power of a Prime Minister, which is in effect a monarch elected every election cycle.
Maybe, we will finally have reform, such as term limits for a Prime Minister, fixed election dates and less discretionary power by a Prime Minister, a limit to the number of Ministers a Prime Minister can appoint so to ensure that there is a functioning legislature, especially when a government has a supermajority.
Eternal vigilance is the price of liberty!
Dr. Ronnie Yearwood ([email protected]) is a lawyer and lecturer in law at the University of the West Indies, Cave Hill and Rico J. Yearwood ([email protected] caricomattorneys.com) is the Head of the Public Law Department at CARICOM Attorneys-at-Law and co-host of the award-winning podcast, CARICOM Public Law Podcast (https://caricompubliclawpodcast. buzzsprout.com)