Marshall: Sub-committee gave nod for list of approved minimarts

The Government’s chief legal advisor told a high court Tuesday, it was not his responsibility to confirm or deny the list of minimarts permitted to open during the COVID-19 pandemic.

But earlier during cross examination by Queen’s Counsel Hal Gollop, the Attorney General and Minister of Legal Affairs Dale Marshall testified that “I consider I had, and have, the authority to grant exemptions” as he responded to a suggestion from Gollop that the decision to exempt fell “squarely” in his lap.

Marshall was the first witness on day two of testimony in four consolidated lawsuits against Government in relation to its COVID-19 directives which continued before Madam Justice Jacqueline Cornelius in the No. 12 Supreme Court.

The cases have been brought by Opposition Senator Caswell Franklyn, shopkeeper Adrian Kellman of Kermit’s Bar and Benson Straker of Benson’s Minimart.

Franklyn is challenging the manner in which the Emergency Management Act, crafted by the Government to manage the spread of the virus here, was imposed. He claims the Government has been enforcing directives which have not been approved by Parliament.

Kellman’s legal action relates to the COVID-19 Monitoring Unit’s closure of his shop at Thornbury Hill, Christ Church while Straker is suing the Attorney General and Commissioner of Police (COP) 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 COP.

During nearly one and a half hours of cross examination by Gollop today, the AG Marshall sought to explain why he told the court he was not responsible for confirming or denying the list of exempted minimarts.

“A list of minimarts, based on recommendations of the rural MPs (Members of Parliament) was made…I presented that list to the Cabinet Sub-Committee and the Cabinet Sub-Committee from my recollection confirmed it,” he declared.

Marshall informed the High Court that he was the collator and conveyor of the information regarding the list of exemptions and not the decision-maker.

He also disagreed with an assertion by the senior counsel that he acted capriciously and discriminatory against the national good when minimarts were permitted to open in his constituency of St Joseph.

The Legal Affairs minister also rejected Gollop’s view that his [Marshall’s] request for consideration to be given to exempting minimarts in his constituency was more political than anything else.

Marshall pointed out that considerations for exemptions placed a lot of weight on rural areas to save residents from having to travel long distances to find major supermarkets especially at a time when the buses were not permitted to carry a full load of passengers. He contended that if the people in the rural districts were not given the opportunity to shop nearby, the situation could force a greater convergence of shoppers at the supermarkets in the urban corridors.

The AG told the court that exemptions were granted to minimarts all across rural Barbados and not only in St Joseph.

He also disagreed with Gollop that the Emergency Powers Act and the Emergency Management Act provided enough scope for dealing with any eventuality that would give rise to such events as war, pestilence and communicable diseases.

Marshall contended that there was need for an amendment to the Emergency Management Act in order to facilitate even greater coverage and deal in a more in depth manner with emergency issues which were likely to crop up.

Gollop also drew the senior Cabinet member’s attention to the issue of Benson’s Minimart not being granted an exemption to open between February 3 and February 17, 2021.

“I have had to make no decision about Benson’s Minimart. At no time have I ever had to make any assessment or decision in relation to Benson’s Minimart during this COVID,” Marshall stated when Gollop drew his attention to his affidavit in which he said “The claimant was not a supermarket and therefore was not permitted to open since it was not an exempted minimart.”

Marshall agreed with Gollop that the latter was a definitive statement by him, but not an assessment as to the eligibility of Benson’s Minimart to qualify for exemption to open. He told the court he was expressing a view, but when Gollop asked if a view was that much different from an assessment, there was no reply from the witness.

Minister of Health and Wellness Lieutenant Colonel Jeffrey Bostic was the second witness to take the stand today. His appearance was a brief 15 minutes during which he agreed with Gollop that everything the ministry does should be within the law.

Bostic also rubbished Gollop’s assertion that he was bias against Caswell Franklyn.

This matter emerged when the Queen’s Counsel referred him to a portion of his affidavit which mentioned Franklyn although his issue was Benson’s Minimart.

The third and final witness of the day was Station Sergeant Roger Babb who is attached to Holetown Police Station.

Babb testified that he had given instructions to a Constable Kevin Jordan to order the closure of Benson’s Minimart.

Gollop asked the police officer to point him to the legal and statutory authority that permits him to order the closure or opening of any minimart to which the officer identified the section which spoke to minimarts and small shops which are exempted and not exempted.

However, Gollop further questioned the officer as to whether he had in his possession any evidence that Benson did not have an exemption.

“At the time yes,” the witness answered.

“What did you have in your possession?” the Queen’s Counsel queried.

“A schedule that was attached to the said directives,” he replied.

“And what did the schedule say?” Gollop pressed further.

“It spoke to two businesses in the parish of St James that were allowed to operate,” Babb declared, adding that Benson’s Minimart was not listed as one of them.

“Did you or your officer in charge of the group produce that information to Benson?” Gollop followed up.

“I didn’t go to the scene so I cannot speak to….[that],” Station Sergeant Babb stated.

“Where in the statute does it show that the police have been given the jurisdiction to give that kind of order?” the senior attorney queried.

The police officer cited sections 21 and 22 of the directive which state that any person who contravenes this directive or fails to comply with any conditions specified by the Chief Medical Officer or COVID Unit is guilty of an offence and is liable on summary conviction of a fine of $50,000 or imprisonment for a term of one year.

“Are you suggesting that gives you the power of executive?” Gollop asked.

“As a police department, we enforce the law,” the witnessed declared.

“Who among those two names…functionaries [named in the directive] do you take your instructions from…the Prime Minister or the Attorney General?” the Queen’s Counsel asked.

“The Attorney General,” the station sergeant replied in the presence of the Attorney General who had remained in court following completion of his testimony.

The case is expected to conclude next week. Closing arguments are to be heard from both sides on Monday and Tuesday starting at 9.30 am.

Neil Marshall and Gollop are representing the claimants, while Leslie Haynes, Q.C. in association with Gregory Nicholls and Rashawn Wood are appearing for the respondents.

(emmanueljoseph@barbadostoday.bb)