COMMENTARY: Government Is Legally Confused

23

by Charlesworth C. M. Tabor, Attorney-at-Law

 

Recently the issue as to whether the imposition of a state of emergency (SOE) was necessary for the implementation of a curfew was raised by the leader of the United Progressive Party (UPP), attorney-at-law, Harold Lovell. The question I wish to answer, therefore, is whether you need a SOE in order to implement a curfew.

 

Harold Lovell is ideally suited to speak on that issue not only because he is an attorney-at-law, but also because he did graduate studies in Jurisprudence and is a holder of a Masters Degree on the subject.

 

So as not to keep you in suspense dear readers, I will answer the question immediately as to whether a state of emergency is required to support the existence of a curfew. The answer to this question is a resounding NO. Under the Constitution and Laws of Antigua and Barbuda the curfew that is presently being enforced to combat the covid 19 pandemic can be included in the Regulations made under the Public Health Act, Chapter 353 of the Laws of Antigua and Barbuda.

 

Let me state clearly that section 20 (1) of the Constitution gives the government the power to impose a SOE once the Governor General declares that certain conditions exist. These conditions are the imminence of war between Antigua and Barbuda and a foreign State, the result of the occurrence of any earthquake, hurricane, flood, fire, outbreak of pestilence, outbreak of infectious diseases (such as the present covid pandemic) or other calamities similar to those mentioned or not.

 

On the 25th March, 2020 the Governor General declared that a SOE existed in Antigua and Barbuda as a result of the Coronavirus, which has been declared a dangerous infectious disease.

 

Now, under section 6 (1) of the Emergency Powers Act, Chapter 147 of the Laws of Antigua and Barbuda the government is given the power to make regulations to control and regulate certain things such as (a) to impose on any person any restrictions in respect of his employment or business, in respect of his place of residence, and in respect of his association or communication with other persons (b) to prohibit any person from being out of doors between such hours as may be specified except under the authority of a written permission granted by such or person as may be specified. It is clear that under this section the government can abridge our Constitutional fundamental rights of freedom of association and freedom of movement.

 

Can anyone tell me whather the government has published any Regulations under the SOE that  resulted from the Governor General’s  Proclamation of the 25th March, 2020? This is the MILLION DOLLAR question  and if the answer is no, which I believe it is since I cannot recall any Regulations being published under the SOE, then it means that the present Regulations that are implemented at the moment are those Regulations that were made pursuant to the Public Health Act. What this means, therefore, is that the implementation of the present curfew is done under the Public Health Act and not the SOE that was declared by the Governor General. It should be clear then that a SOE is not necessary for the operation of the curfew.

 

The question that should be asked now by very keen observers, is whether the constitutionality of the curfew under the Public Health Act can be challended since our fundamental rights are abridged. The answer to that question would also be a resounding NO.

 

Now, as everyone knows the Constitution is the supreme law as is stipulated in section 2 of the Constitution and any law that is inconsistent with the Constitution is automatically void and is of no effect. However, the Consitution itself also provides circumstances in which a law which normally would appear to breach certain of our fundamental rights, would be considered valid and lawful under those particular circumstances and could not be successfully challenged in court.

 

Under the Public Health Act Regulations our freedom of movement and freedom of assembly are presently curtailed with the 8 pm to 5 am curfew and the number of people that can attend weddings and funerals etc.  This my dear readers is absolutely legal.

 

Why is the curfew under the Public Health Act legal you may ask? Well it is absolutely legal because the Constitution provided for such a circumstance. I will now outline the source of this legality under the Constitution.

 

Recall that the curfew imposes essentially restrictions on our freedom of movement and freedom of assembly, two of our most important fundamental rights.

 

With respect to the freedom of movement, this is addressed in section 8 (1) of the Constitution. What this section says is that “A person shall not be deprived of his freedom of movement, that is to say, the right to move freely throughout Antigua and Barbuda, the right to reside in any part of Antigua and Barbuda, the right to enter Antigua and Barbuda, the right to leave Antigua and Barbuda and immunity from expulsion from Antigua and Barbuda.”

 

Now as sacrosanct as the right of the freedom of movement is, the Constitution goes on to say at section 8 (3) “Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision for as stipulated in section 8 (3) (b) “the impositions of restrictions on the movements or residence within Antigua and Barbuda or on the right to leave Antigua and Barbuda of persond generally or any class of persons in the interests of defence, public safety, public order, public morality, or public health ….. except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratice society.

 

Now with respect to the freedom of assembly and association, section 13 (1) of the Constitution says “Except with his own consent, no person shall be hindered in the enjoyment of his freedom of peaceful assembly and association, that is to say, his right peacefully to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the promotion and protection of his interests”.

Again, as sacrosanct as the fundamental right of the freedom of assembly and association is, the Constitution at section 13 (2) provides the caveat that “Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision as stipulated in section 13 (2) (a) (i) “that is reasonably required in the interests of defence, public order, public morality or public health.

 

Now, given the seriousness of the coronavirus pandemic and the deaths that it has caused worldwide and also here in Antigua and Barbuda, no right thinking person if asked the question whether the measures taken by the government to combat the spread of the coronavirus was reasonably required and justifiable would most likely say yes.

 

It is therefore because it would be reasonably justifiable to take drastic measures to combat the conronavirus pandemic, which is a dangerous infectious disease, why the Constitution makes provisons for some of our fundamental rights to be curtailed in such a situation. It is in that regard, that section 102 (1) of the Public Health Act gives the Central Board of Health wide powers to take any measures to deal with any dangerous infectious disease.

 

The government is therefore legally confused when it says that the SOE is required for the existence of the curfew. In fact, the present curfew is being implemented under the Public Health  Act and not under any emergency power since the government never published any Regulations under the SOE.

 

The curfew therefore does not need a SOE. The government can therefore remove the SOE without changing the status quo. However, maintaining the SOE is a very insidious and unnecessary move by the government to give it excessive powers of detention as stipulated in section 17 of the Constitution if it chooses to use that power.

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23 COMMENTS

  1. Just Saying you cannot read didnt you see that the man say that the curfew cannot be successfully challenged since the constitution provides for it under the Public Health Act. You just lub fu criticize fu criticizing safe.

  2. Upp and Harold Lovell thinks they can take Antigua people for fools…. I went and checked the law…. the Government can’t impede your rights guaranteed by the constitution unless there is a State of Emergency …. if there wasn’t a SOE then Tabor would be challenging all the fines imposed by the court on curfew breakers and actually win…… but since the Government has better legal advisers than he Tabor and the Upp, they can only chat and try to fool their listeners…..
    Check the law yourself it’s online

    • Many people can read laws and come to different understandings of the law. That is why they giver legal opinions. When you are in court the Judge gives his judgment on the case in front of him. And since we have the High Court, The Appeals Courts and the Privy Council, when one is not satisfied with the first Judgement they can appeal to the next court and ultimately to the Privy Coucil which is the final appeals court.
      Tabor therefore can write any opinion piece he wants. Why not send for a Judicial review by a court. Or even as I had advice him get a legal opinion from a Law Firm, prefably a Queens Council outside of Antigua, to give you a Legal Opinion. Or ask the Bar Association to weigh in on this and provide the government with their legal position on having read and understood the law to be.
      How many lawers have signed on to Tabor’s opinion? Trevor Walker claimed to have had advised from a QC but when challenced to provide the name of the QC, he backed down. There are QC’s alligned to the UPP, why don’t they sign their name on this opinion.
      That is why we have the term ‘Bush Lawyer’, for those that read things out of context and do not unerstand nor comprehand the entire law and/or constirution.
      I remember under the UPp term the then AG made many blunders when it came to writing
      bills and introducing them to Parliament. We all remember 18-6. And the 2007 Barbuda Land Act.

      • FROM THE SIDELINE if you think what I am saying is incorrect why don’t you or your ALP party seek legal advise on the matter because the government certainly needs it.

        • Tabor the government has an entire legal department to its deposal working on bills and getting the best legal advise. They do not want to look stupid ever. Not like when the UPP was in power and had reverse itself on many times. Gaston will fire Cutie the minute he embarres him like that. So Cutie as a seasoned lawyer will always make sure he is correct when it comes to the law and the constitution. You on the other hand think that your opinion is the only right one. Well as I said and advised you, get and outside legal opinion from a very reputable law firm with QC’s. Let them put their name on it. I will not try and cannot even venture in that field. I stick to my profession. Economics, Finance and Accounting. Like talking about the WIOC share offer. Do you have an opinion on that? I see your leader Lovell said he had the same idea. Liar liar liar liar.

      • Tellingly the same Tabor a few months ago, via comments on their very medium argued that SOE was needed in order for the State of emergency to be maintained. He stated this in response to a comment I made regarding the Barbuda MP and potato chips. Seems his mouth now change because the chameleon lovell rubbing off on him. Best most time to ignore Tabor, his need for attention ensures he will put his foot in his mouth

        • TENMAN you are just as silly as usual. Even the courts at times reverse their previous decisions. Have you never changed your mind on anything. In the last few days I looked at the Constitution and all the other relevant pieces of laws such as the Public Health Act and the Emergency Powers Act and have come to the conclusion that I have presented in the article. Why don’t you and FROM THE SIDELINE and also JUST SAYING spend a few days together doing some legal research and come with a response to my article. You guys are just pathetic with your comments. Please try to refute my argument.

          • Wait so you were confused? Happen to think the confusion is now. Brethren I have no problem with persons charging stance after recognizing their error. The problem is when you come giving the impression this was so clear and something you always believed. Why don’t we do like you (can’t speak for the others) but I , unlike you, have no time for exercises in intellectual masturbation.

  3. This is the kind of read that I want when I come on this platforrm .If it rains too much Lovell this Lovell that ALP this ALP that .

  4. The CUFEW ‘may’ be legal but do the political leadership understand they are commiting political suicide? It mat be already too late for them…

  5. I thought this would’ve been about the WIOC injunction filed by Half Moon Bay or the Commissioner of Police.

  6. The leaders of countries who are locking down their citizen are pitiful psychopaths who feel no remorse for the people whom they are hurting because they have no conscience to nag them like normal people do. They probably even have convinced themselves they are actually doing the right thing! Psychopaths have zero empathy for other people and oftentimes have a grandiose self image that doesn’t allow them to admit they could possibly be doing anything wrong. Even though these psychopaths do wrong things they don’t qualify as EVIL people because they do not KNOWINGLY hurt other people.

    The other group of people involved in this catastrophe are the enablers. The enablers do have a conscience, and they do the bidding of the psychopaths for various reasons like money, power, prestige, political position, lack of courage and other reasons. The enablers do bad things to other people KNOWING that are wrong… By definition such actions are EVIL and a sin. “The wages of sin is death” Romans 6:23

  7. TENMAN HUGHES why don’t you with all your usual big chat engage in some intellectual masturbation as well and prove me wrong. That is what you and the other sycophants like From The Sideline and Just Saying need to do and stop spouting empty, useless words.

    • A sycophant is a person who tries to win favor from wealthy or influential people by flattering them. Also known as brown-nosers, teacher’s pets or suck-ups.
      Just wondering whom I’ve been flattering. Gaston Browne???
      Oh yes ofcourse. He is the best Prime Minister we have had in a long time. And if he continues on this path he may become the best PM ever.
      Boss you should mind your pressure. In these Covid times, pressure kills. Even in the senate today Maureen Payne-Hyman debunked the same opinion spewed by Senator Lewis. Those are persons you should ask to refute your opinion. And they will do so time and time again

  8. FROM THE SIDELINE if you only attach one meaning to a word you really need to go back to school. Why don’t you tell Gayle Christian and Maureen Payne Hyman to put their nonsensical arguments in writing. Even your Attorney General talking his nonsense in responding to Pringle when he says that only when a SOE is implemented during a war that excessive powers of detention come into existence. Such powers come into existence whether a SOE is implemented as a result of war, pestilence, hurricane, earthquake, fire or dangerous infectious disease. Your ignorance annoys me sometimes.

    • I guess everything said in our parliament is as good as in writing. What more do you want. For them to get in the gutter with you. No my friend you come up to their level and present your opinion to the AG’s office with a challenge in court. or as I keep advising you, get a legal opinion from a REPUTABLE Law Firm with QC’s.

  9. ROCK STEADY what you and all the others need to do is to counter my FOOLISHNESS with written facts and not just your empty, nonsensical comments. Please come with facts you, FROM THE SIDELINE, TENMAN and JUST SAYING. Perhaps maybe even BEEF can join you guys.

  10. So sad. You really should ask the University where you studied, for your money back. It was not worth it. In fact if I were the head of the University I would not wait for you to ask, I would strip you from any degree you got from them and give you back all your monies. All my legal buddies are laughing at you when I ask them about your opinion on this. My judges friends such and Mario and Kenneth do not want to get involved in Antigua politics.

    • Funny, I told him exactly that a few months ago. Man always backtracking / contradicting his recent argument. Really think he studied the wrong thing. Clown for children parties is his true calling

      • TENMAN HUGHES at least you and FROM THE SIDELINE can tell me which University you went to. Perhaps you went to the University of ALP and Gaston Browne sycophancy. Even if I have changed my views on the matter as you contend, what you need to do now is to get all your ALP lawyers including the Attorney General and refute my arguments. That is all I want to see and not nonsensical comments from all of you.

  11. FROM THE SIDELINE it is you and your judges friends that should be laughed at and I sincerely hope that you are not referring to Mario Michel and Kenneth Benjamin since it would show that they are as dumb as you are and I know they are not.

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