The following principles and authorities are applicable in determining the minor
issues.
1. The principle of separation of powers seeks to check and balance any undue
influence of the legislature and the executive on the judiciary ensuring
collective power of the state is not vested in one person or group of persons
harbouring any prejudices or biases.This structure preserves the rights and
liberties of the citizen.This position is reinforced as per Lord Steyn in Ahnee
v DPP [1999] 2 WLR 1305, at 1310-1312 where he established that under
the Constitution one branch of government may not trespass upon the
province of any other.
2. Judicial review is seen as a tool to the doctrine of separation of powers and
by analogy holds constitutional standing. The supremacy of the constitution
must be,to be effective, supported by law hence the need for judicial review.
The constitution is established to check both the individual and the state and
it is the responsibility of the judicial arm to decide what the law is. Chapter 3
Section 11 of the Barbados constitution provides for the protection of
fundamental rights and freedoms of the individual.
3. A requirement imposed by these constitutions make clear that provisions
which impinge on the rights and freedoms of the individual must be
reasonably required for certain broad purposes linked to the public interest
e.g. defence, public safety, public health, etc., or for the protection of the
rights of others. The onus of proof here is on the party supporting the
impinging law. Section 48 (1) of the Barbados constitution states
Parliament may make laws for the peace, order and good government of the
country.
4. Another requirement imposed by these Constitutions is that the impinging
law must be shown to be not reasonably justifiable in a democratic
society. Here the burden of proof lies on the party challenging the
impinging law. The existence of the bill of rights is viewed as a central
limitation on parliamentary sovereignty and a source of judicial review. In R
v Hughes it was made clear: The constitution does not simply control what
the law may provide it exist to place limits on what the state may do.
5. To claim that a law is valid is to claim that it has been created in accordance
with an established legal process. This establishes no arbitrariness about the
law as well as its origins from an accepted norm. Preservation of the validity
provides for the Head of State acting through a mercy committee the
purview of varying the sentence of any convicted criminal after a review.
12.Parliament as a function can make laws, amend them or repeal them. The
process of law making requires a legislative proposal in the form of Bills
being tabled for debate in the legislature. A Bill is a statute in the draft form
and cannot become law unless it has received the approval of both the lower
and upper Houses of Parliament and the assent of the Governor General. It
must also be understood that certain acts of parliament may require special
majorities, qualified majorities reflecting the level of entrenchment and by
extension importance attached to the process effecting change.
APPLICATIION:
Applying the law to the facts
1. Lord Steyn in Ahnee v DPP [1999] 2 WLR 1305, at 1310-1312 established
that under the Constitution one branch of government may not trespass upon
the province of any other a clear separation of powers position. Barbaros,is a
Commonwealth Caribbean country which prides itself on being a
constitutional democracy, something that is enshrined as a section in its
Constitution. It follows that Barbaros is constitutionally based on the rule of
law and subject to its specific provisions, the Constitution entrenches the
principle of the separation of powers between the legislature, the executive,
and the judiciary.
2. Chapter 3 Section 11 of the Barbados constitution states the Barbados
constitution provides for the protection of fundamental rights and freedoms
of the individual. Barbaros is a commonwealth country hich prides itself on
being a constitutional democracy and as a consequence can have the basis of
that structure enquired into.
3. Section 48 (1) of the Barbados constitution states Parliament may make
laws for the peace, order and good government of the country. The
government of Barbaros is aware that 1,000 of its nationals have joined the
Real Syrium State who demonstrates a willingness to annihilate those who
oppose the realisation of that goal.
ADVICE/CONCLUSION:
It is therefore advised that
1. The Anti-Terrorism Act 2016 can be challenged on the basis that there is a
separation of powers doctrine in effect on the island of Barbaros.
2. The Anti-Terrorism Act 2016 can be challenged on the basis of judicial
review based on the democratic constitutional structure on the island.
3. The Anti-Terrorism Act 2016 is open to judicial review based on the
constitutional changes and impact of its results.
4. The Anti-Terrorism Act 2016 is open to judicial review based on the
constitutional changes and impact of its results.
5. The Anti-Terrorism Act 2016 is valid based on the process and is not open to
judicial review.
6. The Anti-Terrorism Act 2016 use to appoint a sitting high court judge is a
violation of the separation of powers doctrine.
7. The Anti-Terrorism Act 2016 Act transfers judicial power from a superior
court judge to a magistrate.
8. The Anti-Terrorism Act 2016 Act is open to judicial review based on the
constitutionality of issuing a freezing order, minimum sentencing mandated
by the act.
9. The Anti-Terrorism Act 2016 is open to judicial review because the
requirements of bail must be addressed before a determination by the
executive.
10.The Anti-Terrorism Act 2016 violates the separation of powers doctrine
based on mandatory sentencing application.
11. The Anti-Terrorism Act 2016 does not confer the right to pardon or vary a
sentence that right is constitutionally based. It does not violate the separation
of powers on this point.
12. The Anti-Terrorism Act 2016 by virtue of no ascent is not law and if
imposed violates the separation of powers doctrine and is open to judicial
review.