by Charlesworth C. M. Tabor, Attorney-at-Law
The fallout from the Covid-19 crisis has exposed the weaknesses in the health, social, economic and political infrastructure in countries around the world. Our little island of Antigua and Barbuda is no exception.
However, my focus in this article with respect to Antigua and Barbuda will not be on the health, social, economic or political weaknesses engendered by the covid 19 pandemic, but rather on the many legal blunders committed by the government in their response to the crisis.
To take steps to combat the crisis, the government’s first course of action was the imposition of a public state of emergency. This was correctly done when the Governor-General acting pursuant to section 20 (1) of the Constitution of Antigua and Barbuda issued a Proclamation on the 25th March, 2020 declaring a state of public emergency. Prior to this though, the Minister of Health pursuant to section 100 of the Public Health Act, Cap. 353 of the Laws of Antigua and Barbuda, declared covid 19 to be a dangerous and infectious disease.
This act by the Minister of Health was absolutely necessary to ground the subsequent Proclamation of a state of public emergency by the Governor-General as a result of the covid 19 pandemic. So far so good in terms of the legality of the government’s actions.
Now to the Regulations made under the Public Health Act. However, before dealing with that it is important to first set the foundation for the enacting of Regulations and their operation.
Regulations are laws just like an Act of Parliament, however they are made differently.
Regulations are sometimes described as Secondary, Surbordinate or Delegated legislation.
The reason for this description is because Regulations are made pursuant to a Principal Act of Parliament. In the instant case I am looking at, the Principal Act would be the Public Health Act, Cap. 353 and the Regulations made under it would be the Secondary, Subordinate or Delegated law (Statutory Instrument).
The Principal Act would set out the procedure for the making of Regulations. In the case of the Public Health Act section 102 states that “The Board shall have the direction of all measures dealing with dangerous infectious diseases, and may make regulations with regard to the control of any dangerous infectious disease …..”. Now the next step in the process after the Board (i.e., the Board of the Central Board of Health) would have made their regulations is stipulated in section 176 of the Public Health Act which states that “Regulations made by the Board under this Act shall not take effect until and unless they have been approved by the Cabinet and such regulations shall be laid before Parliament for confirmation”.
In dealing with the crisis presented by the covid 19 disease, we all would expect the government to take action to address the crisis. However, in taking any action the government must act squarely within the confines of its legal authority. This notion is simply the principle of the Rule of Law which requires that the government just like any ordinary citizen must obey the law. It is a fundamental principle in the functioning of a democratic society and should always be observed.
Now, the comedy of legal errors of the government started when the Minister of Health, the
Honourable Molwyn Joseph made Regulations on the 20 th March, 2020 as contained in Statutory Instrument No. 16 of 2020. These Regulations as you are well aware were to regulate our behavior and conduct under the state of emergency such as the wearing of masks and social distancing etc.
You should also now be aware as well that the Minister of Health under the Public Health Act had no authority whatsoever to make Regulations under the Act. The power to
make Regulations under the Act is vested in the Central Board of Health. It means, therefore, that the Regulations made by the Minister of Health was unlawful and null and void.
I must pause here to give some credit to the government because they subsequently discovered that the Regulations made by the Minister of Health was unlawful and those Regulations were subsequently replaced by Regulations made by the Board of the Central Board of Health and signed by its Chairman Eustace “Tiko” Lake on the 4 th April, 2020.
On the 7 th April, 2020 the new Regulations signed by Eustace Lake was published in the Gazette as Statutory Instrument No. 27 of 2020. However, my dear readers, while these Regulations were now correctly made they were nonetheless still unlawful because they failed to follow the proper procedure to become law. Remember as I indicated earlier, pursuant to section 176 of the Public Health Act, Reegulations before they become law must be approved by Cabinet and then confirmed by Parliament. After confirmation by Parliament the Regulations would then be Gazetted and immediately become law just like the Principal Act under which they were made.
You must be wondering at this moment how could the Regulations made by Eustace “Tiko”
Lake, Chairman of the Central Board of Health, be just as unlawful as those previously made by Minister of Health, the Honourable Molwyn Joseph, who had no locus standi to make such Regulations. Well my dear readers, the Regulations made by Eustace Lake on the 7 th April, 2020 were unlawful for the simple reason that they were not confirmed by Parliament as required by section 176 of the Principal Act.
Now the question that you should be rightly asking at this juncture, is what does confirmation by Parliament means? The procedure for the confirmation of these Regulations by Parliament simply required that the Regulations should be placed on the Order Paper for a session of Parliament. No debate or anything would be required by Parliament as in the case of the passage of the Principal Act. This was never done hence the Regulations could not have become law.
To those naysayers who would wish to challenge my assertion that no confirmation was ever obtained from Parliament, let me suggest to you that the last time that Parliament ever met in this country was on the 31 st March, 2020 when the so-called Virtual Meeting of Parliament was convened. As I have indicated elsewhere, even the meeting of this so-called Virtual Parliament was unlawful. All of the Regulations made by Eustace “Tiko” Lake were done in the month of April and Parliament never met in that month. Moreover, even the previous Regulations made by the Minister of Health were never confirmed by Parliament, so those Regulations were doubly unlawful i.e., the Minister had no authority to make them and they were not confirmed by Parliament.
What is the way forward then, in light of these comedy of legal errors committed by the
government? If the government were a person it would perhaps end up in 1735. However, the government is not a person so jail time would not be an option.
In the circumstances and given the principle of the Rule of Law, I would simply beseech the
government that it should acknowledge the fact that the way it implemented the Regulations under the Public Health Act was unlawful. Moreover, the government should come to the public and make an apology for this egregious faux pas in its failure to act according to the law. Yes, we know that we are experiencing a crisis with the covid 19 pandemic, but nothing (absolutely nothing) justifies the government acting outside of the law. It is unacceptable in any situation.
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This guy nah no work fu do but campaign? Just like the leader of his party will never be the Prime Minister this guy will never be the Attorney General.
PS he can come for me all he want cause it I got time.
@……..question? Would you, the Governor General, Gaston Browne, PM, the Attorney General, any member, of the Judiciary, to include Magistrates, Judges, Prosecutors, Police officers; want to be arrested, charged, prosecuted, found guilty under a Law which was UNCONSTITUTIONAL?
U cyan deliver U ansah, to me Obeah Wukkah fuss! Dem haffu check fu, rassishness before, dem delivah, to me!
Is this “Commentary” an example of “intellectual masturbation”? Hope the exercise was worth it for the commentator!
NOT PSYCHIC – CHANGE MINDSET
Not psychic in any way.
But still can get any commenter to remove his/her thoughts completely from this commentary.
Not sure what the hell this ‘faked-name person’ is driving at, with this apparent ‘plagiarized coined-phrase’.’
If that is the only way a person can ‘use his brain,’ then he might just omit the word ‘intellect’ and use his darn ‘limbs.’
INTELLECTUAL MASTURBATION indeed. Birds of a feather flock together. He is one of Lovell’s boot lickers. Sadly, this “op-ed” will NOT win the UPP the next election.
Paul in his usual bid to being negative said to Saul on Disturber yesterday that Airport road is such a bad construction by BHM because it is not “smooth enough”. If that in itself doesnt show that Paul and Saul like all of the UPP are just grasping at straws what else does?
He is a washed-out pretending yankee. Nah know a fart about Antigua. Neither did Nikki Phoenix, but at least she was a much better host. Paul needs to learn the culture and politics of our country. He comes across as an outsider. OR maybe Pearl and Jacquie a full up he ear wid shit about the government.
Why these some retired and practicing attorneys try and help the country to stamp out corruptions by POLITICIANS in the way they create avenues to enrich themselves without touching the government consolidated funds (TREASURY) so there can be NO CRIMINAL charges brought against them as it was done through the political boards and cronies. Help us navigate their system what can be done to stop these politicians from bleeding this country. Here is an example….Politicians provides a Purchase Order to one of their accomplices who has a business for sometimes three times the amount one can purchase on a regular basis…..so our treasury and ALL tax payers in A&B will be made to pay for the enrichment of whomever 200% mark up which may be shared by the politician and the business cronies (ACCOMPLICE). This is much bigger than what is been outlined above.
no mention of BARBUDA UNLAWFULLY CLOSING “their” BORDER???
P.S. – it’s T-E-C-O not Tiko.
Bet you if one of he or one of his family members were to become a victim of coronavirus he would be singing a diffrent tune. Chups he should find some work fu do and go use his “legal” mind and represent the people for “free” not writing what looks like a campaign essay.
@ MR. POMPEY
Please respect the views of others. Mr. Pompey I find that you can be very tough on others when you DO NOT agree with Them. Please maintain your high standard.
Mr. Tabor you have made some good points in your article. I hope at some point I shall see you point out the ILLS from the UPP . Let Us walk the walk.
Mr. Tabor glad you are back on Antigua News Room.
Mr. Tabor…..Is it LAWFUL for the Barbudans to close the Border ? My Question to Mr. Tabor and Mr . Pompey…Why you Guys never addressed this issue ?
This shows how ONE sided and opportunistic Mr. Tabor and Mr Pompey are !!!!!!. I have lost RESPECT for You Guys. Very ONE SIDED. UPP is always right and ABLP wrong . That is NOT a real world. Be True to Yourself.
Mr. Jones I do not know about Mr. Pompey but with respect to the Barbuda Council declaration that they were closing the borders of Barbuda, I have said both in this medium and also on Observer Radio that the Barbuda Council had no such power. Antigua and Barbuda is a unitary state and only the central government has the power to close the borders of Antigua and Barbuda. To make it clearer to you, Barbuda is like a village in Antigua. Could one of the villages in Antigua say that it is preventing residents from oeutside the village from entering it. The answer is NO, and similarly Barbuda could not do that. In fact, I have even agreed with Ivor Ford on that issue even though he believes that I am not a lawyer as he is 😂. One thing I try my best to be always is objective.
Gosh, weeks persons pressed you on this before you were able to finally articulate something logical. Had, to at the end double check to ensure the name was really Charles Tabor.
Why didn’t you write a “commentary” about Barbuda closing the borders on its own accord? You put a whole lot of time and energy into the above piece, but just wrote 2 lines in the comment section on the article about Barbuda.
You notice how he is quiet when the government expresses especially that “Antigua and Barbuda is a unitary state ..Barbuda is like a village in Antigua.. “? Don’t hear him saying anything about those who try to divide us by chatting their rubbish about Codrington gave them land. Anyway @Charles Tabor, i am always in agreement that we highlight and most importantly learn from mistakes. Even you happen to be fallible (eg your false statement regarding Hill and the PM’s son. Was funny watching you (like alarm bells went off)not being willing to take the bet when Beef called you on it.
@ Mr. Tabor
Thanks for the Clarification. We are back on track.
Truth Be Told I came out on my own accord and said that Barbuda could not close its borders. I said it on Observer Radio and also on Crusader. I was putting a legal opinion out there to the public. Does it have to be in writing. I am sure more people heard it on the radio. Whether you choose to believe it or not, the issue of the legality of the Regulations is far more significant than Barbuda erroneously thinking that it has the right to close its borders. Yes the government had to take drastic action to deal with the covid 19 crisis, but that action had to be done within the law. Can you imagine the confusion that would arise if a few of the people who were convicted for breaking the curfew Regulations challenged the matter in Court. The government had the right intention in introducing the Regulations but seriously screwed up the implementation. As a lawyer I am simply pointing out that they made a mistake just like the Barbuda Council in believing it had the power to close its borders.
Truth Be Told I was out front declaring that the Barbuda Council had no power to close the borders in Barbuda. I did that both on Observer and Crusader radios. Perhaps you would have preferred a written commentary by me making that declaration. However, I am sure that many more people heard what I said than if it was put in writing. I also expressed my position to members of the Barbuda Council. As I lawyer I feel compelled at times to express my views on important legal issues that have implications for the country. My comments on the implimentation of the Regulations imposed by the government to deal with the covid 19 crisis is one such example. Yes, the government had to take serious action to protect the country in the face of the covid 19 pandemic, however, all actions taken by the government must be in accordance with the law. I personally adhered to all the rules contained in the Regulations, however, that does not change the fact that they were unlawfully implemented. Should I have remained silent and not point out that fact? I only hope that my observation will be a learning experience for the government in a similar situation in the future. Government like any ordinary citizen must act within the confines of the law. No one is above the law, not even government.
Tenman tell Beef I will take the bet with him anytime if he has money to lose. He was shown all the documents dealing with the land transaction at Long Bay involving the Prime Minister’s son. Attorney Rika Bird might have done some work in the matter, but it was lawyer Raddy Hill who did the Deed of Assignment, the Purchase and Sale Agreement and finally the Transfer. NowTenman I am aware you are not a lawyer, but talk to one and ask them if Raddy Hill is not the one responsible for the entire transaction. Beef can continue to to chat his nonsense, but I am open to be a guest on his show with his sidekick Kente to address this matter. Beef has my number. You guys must be objective and stop spinning lies for a Party’s sake.
Look who ah talk about spinning lies for a party’s sake. The kettle calling the pot black. Well Lord!
@C. Tabor, I see you enjoy turning yourself into a national joke. The man had you on the line and put the bet to you. You ran from your own statement by refusing the bet. Beef called your bluff and you blinked. Now watch you now with pretend bravery. You now change your mouth and state that Bird may have done some of the work when before you labelled the PM a liar for stating she did the actual land transfer. Tabor, unlike you, when I make statements, I tend to stand by them by providing the actual evidence. Not like you who says A but provides evidence of B to claim he is right about A. They call that being deceitful /pravum (latin). The other word for you is hypocrita eice.
Karma is a ……. yes the kettle calling the pot black. As you can see I am willing to engage any of you guys. Just come with facts and be objective. Tell Beef since he is so confident that Raddy Hill did not handle the land transaction for the Prime Minister’s son at Long Bay have me on his show to discuss the matter so the whole of Antigua can hear. You might now be realizing that I do not shy away from a serious intellectual and other debates. One again, you guys must learn to attack the message and not the messenger —– it is called argumentum ad hominem (to teach you a little latin). Please stop it and let us be civil and engage in serious discussion.
Tenman all the hypocrite I am cannot change the fact that Raddy Hill was the lawyer who did the PM son’s land transaction and not Rika Bird and nothing you or Beef say can change that. If you or Beef are man enough let us both come with the evidence. Anyway, I really do not have time to engage in these puerile back and forth with you. Tell Beef to have me on his show and we will then see who have the facts and who is lying. You and Beef need not pretend bravery, just let us put the evidence on the table. Let’s get on his show and you and him will produce your evidence and I will produce mine. Do you want anything as simple as that? Please get serious and stop BSing around. You guys have a challenge with me on your hands. I do not have time to waste with nonsense. Get serious.
By the way TENMAN it is Gaston Browne when looking for a cover said that Rika Bird did some work for his son, I am only repeating what he said. Again, irrespective what legal work Rika Bird did for his son, no lawyer in this country or the world looking at all the documentation involved in the land transaction would not come to the conclusion that Raddy Hill was not his lawyer. Gaston Browne can perhaps give you and Beef a 6 for a 9 but he certainly cannot do that with me.
TENMAN you have gone to sleep on me man. Let us continue the debate. It is useful in a democratic society and all ideas should contend. Anyway, I am waiting to hear from you. Until then be safe and cool.
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