QC: COVID-19 protocols enacted ‘outside Parliamentary scrutiny’

Some of the COVID-19 measures implemented under the amended Emergency Management Act departed from “ordinarily known principles of parliamentary scrutiny,” Queen’s Counsel Hal Gollop has told the High Court in closing arguments on four lawsuits against the directives.

Opposition Senator Caswell Franklyn, shopkeeper Adrian Kellman of Kermit’s Bar and Benson Straker of Benson’s Minimart are bringing the legal action.

Kellman is challenging the COVID-19 Monitoring Unit’s closure of his Thornbury Hill, Christ Church bar while Straker is suing the Attorney General and Commissioner of Police Tyrone Griffith, alleging they acted unlawfully and beyond their legal power of authority in enforcing the Emergency Management (Amendment) Act, which governs the directives.

Straker’s case has two applicants – Benson’s Minimart against the AG and the Commissioner and Ricky Straker against the Commissioner.

Senator Franklyn is challenging the manner in which the Emergency Management Act was imposed by Government to control the spread of COVID-19. He claims the Government has been enforcing directives that have not been approved by Parliament.

Addressing Justice Jacqueline Cornelius in the No. 12 Supreme Court,Gollop also claimed that as Government sought to put measures in place to control the spread of the deadly virus “in its zeal to deal with this pandemic we had many instances of what I should like to refer to as Government by decree”.

had an impact on freedom and personal liberty which, particularly even if not intentionally, saw the population being placed under a virtual house arrest,” said the Queen’s Counsel, who also argued that such action could not be done “without the sanction of the legislature”.

“There is a need to balance the power between the Executive and the Parliament – and that goes to the heart of the separation of powers doctrine. What we saw was legislation put in place to control the movement and action of people,” said Gollop who is representing the claimants along with attorney-at-law Neil Marshall.

The QC told the court that Barbados already had in place the 1939 Emergency Powers Act as well as the 2007 Emergency Management Act but Government “found it necessary” to make amendments to the Emergency Management Act – which were the measures implemented in 2020.

He claimed that when questioned about this need to put these measures in place “the Attorney General said it was because of the sparsity of the Emergency Powers Act”.

Gollop added: “But we invite the Court to find that the Emergency Powers Act provides a wide and generous ambit within which all the eventualities brought about by COVID-19 may be addressed.

“We submit to the court that in examining the whole process that has given rise to these orders; decrees… it was necessary for the scrutiny of Parliament.”

He pointed to Section 33 (5) of the Emergency Management Act which according to him specifically said “statutory instruments made under this Act shall be subject to negative resolution. There is the mandatory provision, (that be) subject to negative resolutions”.

Gollop again claimed that when questioned about the removal of that requirement by the amended 2020 statute the Attorney General gave the reason as a need for expediency and other factors.

“We ask the court to find that this law which was sought to be justified on the grounds of expediency was nothing more than an attempt [to avoid] the scrutiny of Parliament,” said Gollop.

“It was a flagrant attempt to avoid parliamentary scrutiny. It was a flagrant attempt to avoid any debate… that would interfere with the agenda they had been set… for the passage of the resolution. They wanted that to be done at all cost… That is a danger to democracy.

“Never must the executive be afforded the kind of sovereignty that would allow [it] to threaten, impinge upon, jettison that principle of parliamentary sovereignty”.

He further charged that when the Attorney General spoke about “sparsity of statute” as a reason for the modification “we are submitting that was one arbitrary attempt by an overburden or powerful executive to subvert the sovereignty of the legislature”.

Gollop will continue his closing arguments before Justice Cornelius on Tuesday. The respondent, represented by Queen’s Counsel Leslie Haynes, and attorneys Gregory Nicholls and Rashawn Wood, are expected to present their submissions thereafter and on Wednesday.
(fernellawedderburn@barbadostoday.bb)