The Constitution and police powers

Barbados is a constitutional democracy. This country’s fundamental structures, the limits of power and governance and the rights of individuals are set out in our Constitution.

Section 1 of our Constitution declares that the Constitution is the supreme law of Barbados and, “subject to the provisions of this Constitution, 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”.

In layman terms, this provision acknowledges that the Constitution is not the only law by which the country may be governed, but all other laws must be consistent with the provisions of the Constitution. So that, if the Constitution says that every person in Barbados is entitled to fundamental rights of life, liberty and security of the person, then any other law passed in Barbados must reflect these rights or avoid trampling upon them.

However, there is no such thing as an absolute right. No right may be absolute for two good reasons: your right must be constrained when it begins to interfere with your neighbour’s right; and when it gets in the way of what is good for the good governance of the society. Hence, the very section of the Constitution which provides for the enjoyment of the fundamental rights of life, liberty and security of the person, displays its practicality by also providing for the limitation of those rights when other competing interests demand it. All the rights granted by the Constitution are “subject to respect for the rights and freedoms of others and for the public interest”.

By way of example, every Barbadian may enjoy freedom of speech. However, when that speech is defamatory, it is no longer free and may bring one in conflict with the Defamation Act, an ordinary law which lawfully abrogates your freedom of speech. The Constitution gives, and it takes away. It is neither in the public interest or in the interest of another individual member of the society who one chooses to defame for speech to be untrammelled.
The liberty of the subject is sacrosanct. Section 13 of the Constitution provides that no person shall be deprived of his personal liberty, “saved as may be authorised by law”. One of the “save” circumstances is “upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under the law of Barbados”.

Further, subsection 5 states that, “Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of the foregoing provisions of this section to the extent that the law in question authorises the taking during a period of public emergency of measures that are reasonably justifiable for the purpose of dealing with the situation that exists during that period of public emergency.”

Emergency is not defined in the Constitution. There is nothing within the section which suggests that an emergency must apply to a state of emergency which covers the entire island. It may be quite reasonable to have a breakdown of law and order in one community while that state of affairs does not exist in other areas of the island.
“17. (1) Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.”

That is clear enough. The Constitution provides protection from arbitrary search or entry onto the premises of any person. But it would be foolhardy not to follow the logical provisions of the supreme law which are necessary to ensure stability in any society.

“(2) 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 that is reasonably required –
(a) in the interests of defence, public safety, public order, public morality, public health, town or country planning, the development or utilisation of mineral resources, or the development or utilisation of any other property in such manner as to promote the public benefit;
(b) for the purpose of protecting the rights or freedoms of other persons;
(c ) for the purpose of authorising an officer or agent of the Government, or of a local government authority or of a body corporate established directly by law for public purposes to enter on the premises of any person in order to inspect those premises or anything thereon for the purpose of any tax, duty, rate, cess or other impost or in order to carry out work connected with any property that is lawfully on those premises and that belongs to the Government or that authority or body corporate, as the case may be;
(d) for the purpose of authorising the entry upon any premises in pursuance of an order of a court for the purpose of enforcing the judgement or order
of a court in any proceedings;
(e) or for the purpose of authorising the entry upon any premises for the purpose of preventing or detecting criminal offences.”

Any ordinary law which provides for any or all of the exceptions allowed under the Constitution will not be inconsistent with the Constitution and will, therefore, not be unlawful.

Now, let us look at the provisions of the proposed amendments to the Police Act. The Police (Amendment) Act, 2017, inter alia, seeks to amend the principal Act by providing definitions for “curfew”, “offensive weapon”, “serious violence” and “special investigation period”.

These new definitions immediately tell a story. Clearly the amendments are not concerned with the normal daily policing of the country where there are no extraordinary circumstances. The definition of serious violence includes a disturbance of the peace, serious bodily harm to a person or the death of a person, multiple aggravated burglaries, or a concentration of the commission of multiple offences, committed by a group of persons or a person in an area in Barbados. Individual offences of a similar nature may not trigger this amendment, but a situation which threatens to spiral out of control could.

Where it is necessary to impose a curfew on a particular area, it would defeat the purpose if the power to achieve the goal of that enhanced procedure is undermined by disenabling limitations. It is necessary, therefore, that in those circumstances, the police are confident that they have the powers to make their operation as short and successful as possible.

When all the fuss dies down, one might realise that this law does no more than codify already existing common law powers. The question that should be asked, therefore, is why is it thought necessary for this step to be taken at this time?

It is convenient for some of us to bury our heads in the sand and pretend that we do not recognise the garrison mentality that is emerging in some sections of our country. This is a criminal practice which has been borrowed from some of our neighbours. Barbados can wait until events have gone too far to be corrected, or be proactive and prevent what those who live below the law are trying to create here.

We may also consider why attempts to create lawless areas and groups in Australia and many other developed countries have been defeated. In the process, we may see the similarities between those laws and these amendments.

Barbados Advocate

Mailing Address:
Advocate Publishers (2000) Inc
Fontabelle, St. Michael, Barbados

Phone: (246) 467-2000
Fax: (246) 434-2020 / (246) 434-1000