COMMENTARY: Legislative Chaos of the Government

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

On the 12^th June, 2014 the Antigua Labour Party was ushered back into government after the general elections following its 10 years in Opposition. Oh! What a sad day for this country legislatively, for no other government since Antigua and Barbuda gained its independence on the 1^st day of November, 1981 has been as inept and legislatively incorrect as the present government led by Gaston Browne as Prime Minister and Steadroy Benjamin as Attorney General.

 

If you think that that indictment of the government by me is harsh and unwarranted, then the following few examples are presented as justification for my indictment and will suffice to convince you otherwise.

 

Defamation Act, 2015

 

In April 2015 the government passed the Defemation Act, No. 7 of 2015. This Act, inter alia, at section 24 (2) (i) stipulated that a defamatory matter is published on the occasion of absolute privilege if the matter is published in either House of Parliament by a member of either House. What this simply means is that a member of Parliament is free from any defamatory claim for anything that is said once it is said in the building of Parliament.

 

Now, section 24 (2) (i) is clearly in conflict with section 58 (1) of the Constitution of Antigua and Barbuda (the Supreme Law). What section 58 (1) of the Constitution stipulates is that members of Parliament only have freedom of speech in Parliament and is immune from any civil or criminal proceedings for statements made in Parliament when those statements are made during proceedings of Parliament. In other words, Parliament must be in session and the member is in the building of Parliament. This very issue is now before the court on a constitutional motion and the court will determine the matter.

 

Prison Amendment Act, 2017  

 

In June, 2017 the government passed the Prison (Amendment) Act, No. 17 of 2017. The objective of the amendment to the principal Act (the Prison Act, Cap. 341) was to removed the Governor General as the person who had the power to grant the remission of sentences and replace him with the Minister of Public Safety.

 

Section 84 (1) (d) of the Constitution of Antigua and Barbuda is absolutely clear on who has the power to grant the remission of sentences and that power is vested in the office of the Governor General.

 

This matter came before the court for adjudication since the Minister of Public Safety, acting in the mistaken belief that he had the power to grant the remission of sentences because of the Prison (Amendment) Act 2017; in February, 2019 granted the remission of the sentences of several prisoners, including some who were serving sentences for murder. The Court in its judgment on 10^th April, 2019 declared that the amendment to the Prison Act was unconstitutional.

 

Release of Texan Tourist

 

On the 1^st June, 2018 Shannon Martinez and her family came to Antigua from Texas for a 12-day vacation. At the end of her vacation, while at the airport preparing to return to Texas her suitcase was searched and 20 rounds of ammunition for a 9mm gun was found. She was charged and was found guilty by the Magistrate and sentenced to one year in prison.

 

This matter was the subject of much publicity and of course the US government also got involved. Again, rather than following the required legal processes, the Attorney General got involved and unlawfully granted a remission of her sentence and Mrs. Martinez was wisked out of Antigua after spending one day in prison.

 

The point that I wish to underscore in this matter is not that Mrs. Martinez was granted a swift reprieve for her crime, but that what was done by the Attorney General was unlawful. Perhaps the best way for this matter to have been handled was for the Governor Geeral to have issued a pardon. While there are some that would also disagree with this solution, the point though is that the action would have been lawful.

 

Covid 19 Regulations       

 

As a result of the covid 19 pandemic the government had to take drastic measures to protect the lives of the residents of Antigua and Barbuda. To take steps to combat the crisis, 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. However, the Minister of Health acting ultra vires went even further by making Rgulations under the Act, to control the behavior of residents under the public state of emergency that was declared by the Governor General. The Minister of Health should have known or should have sought legal advice before commiting such a blunder since the Public Health Act (which falls under his purview) clearly stipulates at section 102 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 …..”.

 

Because the Minister of Health had no legal authority to  make such Regulations,  they were therefore null and void and of no effect. More egregious and troubling though, is the fact that all the people who were arrested, charged and convicted for breaching the Regulations were done so unlawfully by the State.

 

It would appear that the government subsequently realized the serious blunder that was made with the Regulations of the Minister of Health and tried to correct it. However, instead of correcting the previous blunder the blunderous and inept behaviour of the government continued with even more absurdity. While the Regulations made by Eustace Lake as Chairman of the Board of the Central Board of Health (CBH) were rightly made, the government then fell into serious error by not having those Regulations confirmed by Parliament as required by section 176 of the Public Health Act. It simply means that those Regulations, like the Minister of Health Regulations, were also null and void and of no effect and therefore the people who were arrested, charged and convicted for breaching those Regulations were done so unlawfully by the State.

 

Virtual Meeting of Parliament

 

On the 31^st March, 2020 as a result of the covid 19 pandemic and the consequent regulation of residents’ behavior by the government and in particular social distancing, the Parliament of Antigua and Barbuda met for the first time in its history Virtually.

 

Was this Virtual Meeting of Parliament lawful? The answer to this question is a resounding NO. While section 59 (1) of the Constitution of Antigua and Barbuda gives the Governor General the power to proclaim the place where Parliament shall meet, the reference to place does not imply a geographical location such as a village or parish, but rather a specific building in a particular location. The Proclamation issued by the Governor General, therefore, on the 30^th March, 2020 that there would be a meeting of the House by Video Conference Link to be held in St. John’s is nonsense to say the least. More troubling, however, is perhaps the cajoling of the Governor General by the government to do an unlawful act.

 

In fact, at the supposedly Virtual Meeting of Parliament on the 31^st March, 2020 one of the Bills down for consideration was the Emergency Powers (Dangerous Infectious Diseases) Bill, 2020 and would you believe that one of the very objectives of that Bill was to give Parliament the power to meet Virtually. It would really be difficult to find a word to describe this ineptness of the government. However, the Bill was subsequently withdrawn by the Attorney General when it was realized that certain provisions of the Bill could be unconstitutional.

 

Emergency Powers (Dangerous Infectious Diseases) Bill, 2020

 

Down for consideration in Parliament yesterday was the Emergency Powers (Dangerous Infectious Diseases) Bill, 2020. Again, it was withdrawn. You will recall that the first time this Bill made an appearance in Parliament in March, one of its objectives was to legalize Virtual Meetings of Parliament. Now, one of the objectives of the Bill was to suspend the payment of severance to workers indefinitely. However, because of the outrage that ensued, the government was forced once again to withdraw the Bill. The payment of severance to workers is almost sacred and here you have a government that proclaims it has come from the bowels of labour, was willing to amend the Labour Code to throw workers under the bus. This is beyond shameful.

 

Conclusion

 

Now dear readers, the issue of proper lawful behavior by government in accordance with the Rule of Law is just as important as bread and butter issues that affect your pockets. Just as you would be concerned about the latter, you should be equally concerned aout the former, because if the society continues to be nonchalant about the government’s legal errors and excesses, then we might just wake up one day to find that we are living in a totalitarian State.

 

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