EDITORIAL - To the extent of the inconsistency…

Immediately after declaring itself in section 1 to be the supreme law, the Barbados Constitution goes on to provide that “if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void”.

 

Further, in section 24, the Constitution empowers any person who alleges that any of the guaranteed fundamental rights in sections 12 to 23 has been, is being, or is likely to be contravened in relation to him or her to apply to the High Court, which has jurisdiction to enforce the rights, for redress.

 

These two sections were brought into focus recently when Mr David Commissiong, an attorney-at-law and social activist, challenged the essential and constitutional validity of the Immigration (Biometric) Regulations 2015 and sought appropriate declarations and orders of the Court on the grounds; first, that the regulations were not properly and lawfully enacted in accordance with the requirements, not further defined in the draft order to which we have had access, of section 41 of the Interpretation Act, Cap. 1 of the Laws of Barbados; and second, that they were in breach of section 22 of the Constitution in that they infringed the guaranteed constitutional right of a citizen or permanent resident of Barbados to enter and leave Barbados by restraining such egress and ingress where there is a refusal to submit to supplying one’s biometric data in the form of fingerprints. 

 

It was also claimed that the Regulations were in breach, in at least two instances, of the Immigration Act itself, bizarrely the very legislation under which the Prime Minister purported to have made them.

 

Surprisingly, the State filed no defence to these claims and, indeed, is reported to have consented to the terms of the Order, even though it is by now notorious that the Solicitor-General’s Chambers in the Office of the Attorney General bears the responsibility of advising as to the legal validity of state action. There was not even a prayer for further and better particulars of the essential invalidity of the Regulations and the manner in which their creation conflicted with the Interpretation Act nor a plea for judicial restraint in having the Court excise the offending penalty provision, leaving the rest of the measure intact. 

 

What little legal defence of the measure there has been has come ex post facto from Mr Hal Gollop QC, who has been stridently insisting that the order was premature since there was no law to impugn. We are not clear as to precisely what he means; whether he is arguing that the law did not exist as a matter of fact or whether he is claiming that it did not exist as a matter of law, since one of the Orders sought by Mr Commissiong and granted by the Court was an order of Certiorari to quash the Regulations themselves. 

 

In any event, as a result of the Court order, the 2015 Regulations are of no further legislative force and thus the fingerprinting of locals on their exit and entry into the country cannot now be lawfully effected. Of course, this does not prevent the governing administration from, in the vernacular, “wheeling and coming again”, if it should be desirous of implementing this new measure of civil identification that was not itself, it must be understood, the subject matter of the recent court decision.

 

However, we would expect that any such reprise would be accompanied on that occasion by full disclosure to the citizens of the necessity for its implementation in keeping with the mutual trust and confidence that ought to exist between the State and in its citizens in accordance with the principles of good governance.