Barbados is in the grip of the worst pandemic, in my lifetime, Covid-19 that has taken the lives of over 200,000 people worldwide to date. And it does not seem that the Government is up to the task of managing this crisis. To my mind, it is certainly not setting the example by complying with the conditions that it has imposed on the population.
Government has imposed a 24-hour curfew that requires persons to stay indoor, and if you must leave home, you should practice social distancing. It therefore completely baffles me that Government would summon the Senate to meet on Monday, April 27, 2020 to debate: the Exchange Control (Amendment) Bill, 2000; the Control of Disposable Plastics Bill, 2000; and the Income Tax (Amendment) Bill, 2020.
The Exchange Control (Amendment) Bill relates to the validation of a budgetary measure to impose a foreign exchange fee by the last administration that was effective from July 17, 2017; and also to validate the collection of this administration’s fee on foreign transactions. The time to collect these taxes, without legislation being in place, has expired according to section 3 of the Provisional Collection of Taxes Act.
The Control of Disposable Plastics Bill, 2020 repeals and replaces a similar act that was passed and also subsequently amended in 2019.
Why is Government unnecessarily risking the lives of senators.
The foregoing is bad enough but it pales into insignificance when compared to Government’s handling of the rules to deal with the current state of emergency. When Government decided to impose a state of emergency, it had two sensible options open to it.
A state of emergency could have been declared under section 25 of the Constitution or under section 2 of the 1939 Emergency Powers Act. Instead, the Government chose to amend the Emergency Management Act by re-enacting certain provisions of the Emergency Powers Act. Those provisions would have been unconstitutional but for section 26 of the Constitution, which saved laws that were inconsistent with sections 12 to 26 of the Constitution that were passed before 30th November 1966 from being unconstitutional.
Section 26 also allows Parliament to re-enact those pre-independence provisions without significant alterations. However, Government went a step further and included a provision in the amendments to the Emergency Management Act, at section 28A.(6) that allows Cabinet to delegate, to the Prime Minister, its powers to make such directives as may be required in the public interest.
The power given to the Prime Minister did not previously exists and therefore could not have been saved by section 26 of the Constitution. To my mind, in order to bestow this power on the Prime Minister, Parliament would first have to amend the Constitution, and it did not. It would therefore appear that the Prime Minister or, in this case, the acting Prime Minister had no power to make directives under a state of emergency.
But it gets worse. When the substantive Prime Minister went on sick leave, the Hon. Santia Bradshaw was sworn in to act. Subsequent to Ms Bradshaw assuming the role of acting Prime Minister, the substantive holder, Ms Mottley, resumed her role and addressed the country on April 11th. We are also told that she participated in Cabinet meetings by Zoom.
When Ms Mottley resumed her role as Prime Minister, Ms Bradshaw would have immediately ceased to be acting Prime Minister, or Barbados would have had two prime ministers at the same time. Summa cedes non capit duos – The highest seat does not hold two. She would have to be sworn in again when Ms Mottley went back into her sick leave.
Even if the change in the law, to allow Cabinet the authority to delegate its power to the Prime Minister, were constitutional; we are still left with the fact that there was no one sworn in to act as Prime Minister who could have properly made the Emergency Management (Covid-19) Curfew (No. 3) Directive on April 14, 2020.
For the avoidance of doubt, I am in favour of measures, including the curfew, to deal with the Covid-19 pandemic. However, I am not in favour of the Government breaching the constitutional rights of citizens to achieve that end. As far as I’m concerned, the directives issued on April 14th are not properly in place and therefore ineffective.
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