Another step

Laws are repealed by the Parliament of Barbados, not by the law courts.

So says law lecturer at the University of the West Indies, Cave Hill Campus, Nicole Foster, who said while the court had the authority to strike down legislation, it had none to repeal it.

Her comments have come following the recent, historic decision handed down by Justice Michelle Weekes in which she declared void Sections 9 and 12, Chapter 154, of the Sexual Offences Act.

The ruling, if left unchallenged, means that the offence of buggery would no longer be illegal.

Speaking to Barbados TODAY, Foster said while her area of expertise was international law and not local law, the Supreme Court of Barbados did not have the power to repeal any legislation.

“A court cannot repeal legislation, it can strike it down. It can say that it is incompatible with the Constitution and therefore it can’t be enforced, but the repealing, the actual changing of the law will have to be done by Parliament,” Foster said.

“I think too that is why the Attorney General has said he wanted to see the written judgment because based on that they would decide whether to appeal or not, because all of this is subject to whether there is an appeal. The decision would stand until that decision is struck down if it is that an appeal is made and if the Court of Appeal disagrees with the judge.”

In response to the decision that was handed down on Monday by Justice Weekes, Attorney General Dale Marshall expressed concern regarding the striking down of Section 12, noting that section “concerns indecent sexual conduct with minors”.

He said Government would first have to see the written judgment before any decision was made on whether there would be an appeal of the ruling.

Foster said it would be difficult to comment on the issue more broadly without the written judgment.

In an earlier interview with Barbados TODAY, human rights and child activist Felicia Dujon called for clarification on the issue.

She said while she had no issues with Section 9, which deals with buggery being declared void, she did not understand why the judge also declared Section 12 void as it deals with serious indecency against minors.

Dujon said even if there was other legislation which protected minors from such offences, it needed to be made public.

“Right now we are only talking about and discussing the buggery law and some people are overly upset about it, but people have to know the implications of the removal of that section of the law that provides that protection for children under the Sexual Offences Act. I think that’s what’s important, that we highlight it and that we ensure that the average person knows that it was not just one law that was removed. It’s two of them,” Dujon said.

“You can look at other laws that provide the protection for children but the law that deals specifically with sexual offences, which deals with rape, which deals with buggery, that is where the law comes in and how do we deal and the penalties that come with it as well. So yes, we may have other laws that provide the protection of children but when we think about sexual offences that is the specific section that deals with it.

“What is the implication of removing the serious indecency act for the rights of children when it comes to sexual violence? It’s the same question the AG is asking but he is waiting to see the written judgment but we want to know now. The public needs to know,” she added.

randybennett@barbadostoday.bb