For months I have contemplated but resisted writing about the rule of law, or lack thereof, in Barbados under two consecutive states of emergency. All that changed after I read a WhatsApp message sent to me from an unknown person. It simply said:
“If you allow the government to break the law in an emergency, they will create emergencies to break the law.”
In order to deal with the Covid-19 pandemic, the Government of Barbados decided that it would institute a state of emergency. Rather than use the existing provisions, Government sidestepped the Constitution and the 1939 Emergency Powers Act and amended the Emergency Management Act to provide for a public health emergency. They claimed that the existing Laws of Barbados did not provide for such. Notwithstanding Government’s claim, I contend that there are ample laws to institute any such emergency.
Section 25.(1) of the Constitution permits the Governor-General to declare that a state of emergency exists. Section 25.(2) goes on to state, in part:
A proclamation made by the Governor-General shall not be effective for the purposes of subsection (1) unless it is declared therein that the Governor-General is satisfied-
(a) that a public emergency has arisen as a result of the imminence of a state of war between Barbados and another State or as a result of the occurrence of any earthquake, hurricane, flood, fire, outbreak of pestilence, outbreak of infectious disease or other calamity, whether similar to the foregoing or not…
The power in the Constitution to declare a state of emergency as a result of the “outbreak of infectious disease” immediately gives the lie to Government’s claim that there were no provisions to cater to a public health emergency.
Under a state of public emergency government can, and in this case, restrict citizens from enjoying their constitutional right. The mechanism for doing so in the current emergency is a series of directives issued by the Prime Minister. I make bold to say that the Prime Minister cannot use this mechanism to curtail constitutional rights and freedoms since the enabling legislation did not amend or alter the Constitution of Barbados in anyway. To my mind, since the Emergency Management (Amendment) Act, 2020 did not amend or alter the Constitution; any directives issued by the Prime Minister that curtailed our constitutional rights would be illegal and of no effect.
The obvious question would therefore be: How can government declare a state of emergency to protect the country from the ravages of this Corvid-19 pandemic? The simple answer would be that government should have invoked the provisions of the Emergency Powers Act, 1939-3. I readily admit that many of the provisions of the Emergency Powers Act would offend the Constitution, if they were passed today. Be that as it may, the Constitution itself at section 26 saved laws that would be unconstitutional if there were passed prior to November 30, 1966.
Section 26 of the Constitution also allows the government to re-enact an existing law without alteration or if altered those alterations would not render the law inconsistent with the human rights provisions of the Constitution, that is sections 12 to 23. The amendments made to the Emergency Management Act in 2020 have not faithfully re-enacted the relevant provisions of the Emergency Powers Act. For example, all those orders/directives made under the Emergency Powers Act must, in accordance with section 3.(4) shall be laid before Parliament. It states:
Any orders so made shall be laid before Parliament as soon as may be after they are made and shall not continue in force after the expiration of 7 days from the time when there are so laid unless a resolution is passed by both Houses providing for the continuation.
Section 33.(5) of the Emergency Management Act, which required the Government to lay emergency orders before Parliament, was repealed by the 2020 amendments. It is therefore obvious to me that this Government wanted no oversight when it implemented the public health emergency.
Section 48.(1) of the Constitution provides that Parliament may make laws for the peace, order and good government of Barbados. It is therefore my view that even if enabling legislation allows the Prime Minister or anyone else to make rules, they must be approved by Parliament. In this present state of emergency the Prime Minister is making laws for the peace, order and good government of Barbados without any reference to Parliament.
I am now wondering if persons, who were penalised by the courts for infringing these directives, have any remedy against the state. It would appear that our Prime Minister has now become the absolute dictator of Barbados, which is not too far removed from being a despot. Could the late Prime Minister Arthur have been predicting the future? Just wondering!