EDITORIAL: A matter of interpretation

Ut res magis valeat quam pereat is a term referring to a legal concept that requires construing a law in a way to make sense, rather than to void it. The spirit (magis) of the law should be given effect rather than be destroyed.

THAT there appears to be some discord between the magistrate and the prosecutor over what conduct constitutes an infringement of the Emergency Management (COVID-19) Curfew Directive, gives cause for regret, especially since the rule of law demands that the criminal sanction should be applied only where the impugned conduct is defined with some degree of certainty.

It is from this that we derive partly the maxim that ignorance of the law is no excuse; not that everyone should know all the law there is, but that everyone is presumed to know what is an offence against the criminal law owing to its notoriety.

According to a report in another section of the press last Thursday, the learned magistrate, Mr. Bannister, and the police prosecutor in his court openly differed as to whether a person could lawfully be charged under the Directive with being outdoors at 3 p.m. on a given day.

For the magistrate, such a charge would be a nullity, since paragraph 1 of the Directive clearly made the curfew operative between 6 p.m. and 6 a.m. the next day only. He is partly right on this. Paragraph 1 states “A curfew is hereby imposed throughout Barbados from the 15th April, 2020 to midnight on 3rd May between the hours of 6:00 p.m. and 6:00 a.m. each day. He also noted that another part of the Directive (paragraph 2) referred to “a curfew (sic) from April 15 to May 3”.

On that basis, he was of the view that since the first paragraph took precedence because of its placement in the Directive, it would be “far safer for the police to arrest someone for being outdoors after 6 p.m. or at night rather than trying to make a 12-hour curfew into a 24-hour curfew”.

The prosecutor disagreed, countering that the law was not badly drafted as suggested, but that a perusal of the law in its entirety would demonstrate that the curfew was rather a 24-hour curfew despite the first paragraph.

Clearly the bone of contention is the declaration made in the first paragraph, that is, incidentally, the only one that speaks expressly to a curfew. The rest of the Directive mandates, inter alia, the limited circumstances in which one is permitted to be outdoors during the specified period. This, in effect, creates an implied curfew.

To the extent that the express ordinarily takes precedence over the implied, it is indeed arguable that the first paragraph is the governing one in respect of a curfew and that if there were any other intendment, then the instrument is unhappily drafted, paragraph 1 being redundant and misleading. This does not necessarily make it a nullity however, and the accepted principles of statutory interpretation must be employed in order to arrive at its meaning.

The intendment of the Directive is patently to effect a lockdown of the nation for the specified period, subject to sundry exceptions. It may be argued therefore that the specified period of curfew forms only part of that strategy together with the other restraints in the rest of the Directive.

On this construction, it would be an offence for a person to be outdoors, both during the hours of the night curfew at all unless exempted, and at any other time during the entire specified period without a reasonable explanation.