Constitutional structure and position of IHL in domestic law
Barbados is a sovereign State within the Commonwealth. It was a member of the West Indies Federation between 1958 and 1962 and became independent in 1966. It is a constitutional monarchy and parliamentary democracy.
The executive branch consists of the Queen of England (represented by a Governor-General) as the Chief of State and of a cabinet headed by a Prime Minister. The Westminster-style bicameral Parliament consists of the Queen of England (represented by the Governor-General), an appointed Senate and an elected House of Assembly. The higher levels of jurisdiction are the Supreme Court of Judicature (consisting of a High Court and a Court of Appeal) and Her Majesty in Council (Privy Council).
Section 1 of the Constitution provides that the Constitution is the supreme law of Barbados and that if any law is inconsistent with it, the Constitution shall prevail to the extent of the inconsistency. The Constitution contains no rules on the ratification of treaties. Legal sources in Barbados include acts adopted by Parliament, UK laws (that is: laws that were in effect immediately before 30 November 1966 and laws made before that day and coming into operation on or after that day that have not been repealed, but which may have been amended by the Governor-General before 30 November 1967) and English common law.
In a letter dated 20 August 1968 and received by the Swiss Federal Council on 10 September of that year, the Barbadian Prime Minister and Minister of Foreign Affairs stated that Barbados considered itself bound by the four Geneva Conventions of 1949 by virtue of their previous ratification by Great Britain. Under this declaration of succession, therefore, those Conventions came into force retroactively for Barbados as from 30 November 1966, the date on which that country became independent. Barbados acceded to the two Additional Protocols of 1977 on 19 February 1990.
Full text of the Constitution:
Chapter III: Protection of Fundamental Rights and Freedoms of the Individual Sect. 15 - Protection from inhuman treatment
1. No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.
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 authorizes the infliction of any punishment or the administration of any treatment that was lawful in Barbados immediately before 30th November 1966.
Sect. 18 - Provisions to secure protection of law
1. If any person is charged with a criminal offense, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.
2. Every person who is charged with a criminal offense -
a. shall be presumed to be innocent until he is proved or has pleaded guilty;
b. shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offense charged;
c. shall be given adequate time and facilities for the preparation of his defence;
d. shall be permitted to defend himself before the court in person or by a legal representative of his own choice;
e. shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution; and
f. shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge.
and, except with his consent, the trial shall not take place in his absence unless he so conducts himself as to render the proceedings in his presence impracticable and the court has ordered the trial to proceed in his absence.
3. When a person is tried for any criminal offense, the accursed person or any person authorized by him in that behalf shall, if he so requires and subject to payment of such reasonable fee as may be prescribed by law, be given within a reasonable time after judgment a copy for the use of the accused person of any record of the proceedings made by or on behalf of the court.
4. No person shall be held to be guilty of a criminal offense on account of any act or omission that did not, at the time it took place, constitute such an offense, and no penalty shall be imposed for any criminal offense that is more severe in degree or nature than the most severe penalty that might have been imposed for that offense at the time when it was committed.
5. No person who shows that he has been tried by a competent court for a criminal offense and either convicted or acquitted shall again be tried for that offense or for any other criminal offense, save upon the order of a superior court in the course of appeal proceedings relating to the conviction or acquittal.
6. No person shall be tried for a criminal offense if he shows that he has been granted a pardon for that offense.
7. No person who is tried for a criminal offense shall be compelled to give evidence at the trial.
8. Any court or other tribunal prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such court or other tribunal, the case shall be given a fair hearing within a reasonable time.
9. Except with the agreement of all the parties thereto, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other tribunal, including the announcement of the decision of the court or other tribunal, shall be held in public.
10. Nothing in subsection (9) shall prevent the court or other tribunal from excluding from the proceedings persons other than the parties thereto and their legal representatives to such extent as the court or other tribunal -
a. may by law be empowered so to do and may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice or in interlocutory proceedings or in the interests of decency, public morality, the welfare of persons under the age of eighteen years or the protection of the private lives of persons concerned in the proceedings; or
b. may by law be empowered or required so to do in the interests of defence, public safety or public order.
11. Nothing contained in or done under the authority of any law shall be held to be inconsistence with or in contravention of -
a. subsection (2)(a) to the extent that the law in question imposes upon any person charged with a criminal offense the burden of proving particular facts;
b: subsection (2)(e) to the extent that the law in question imposes conditions that must be satisfied if witnesses called to testify on behalf of an accused person are to be aid their expenses out of public funds; or
c. subsection (5) to the extent that the law in question authorizes a court to try a member of a disciplined force for a criminal offense notwithstanding any trial and conviction or acquittal of that member under the disciplinary law of that force, so, however, that any court so trying such a member and convicting him shall in sentencing him to any punishment, take into account any punishment awarded him under that disciplinary law.
12. Nothing contained in subsection (2)(d) shall be construed as entitling a person to legal representation at public expense.
Sect. 24 - Enforcement of protective provisions
1. Subject to the provisions of subsection (6), if any person alleges that any of the provisions of sections 12 to 23, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.
2. The High Court shall have original jurisdiction -
a. to hear and determine any application made by any person in pursuance of subsection (2); and
b. to determine any question arising in the case of any person which is referred to it in pursuance of subsection (3).
and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 12 to 23:
Provided that the High Court shall not exercise its powers under this subsection if it is satisfied that adequate means of redress are or have been available to the person concerned under any other law.
3. If in any proceedings in any court subordinate to the High Court any question arises as to the contravention of any of the provisions of sections 12 to 23, the person presiding in that court shall refer the question to the High Court unless, in his opinion, the raising of the question is merely frivolous or vexatious.
4. Where any question is referred to the High Court pursuance of subsection (3), the High Court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision or, if that decision is the subject of an appeal under this Constitution to the Court of Appeal or to Her Majesty in Council, in accordance with the decision of the Court of Appeal or, as the case may be, of Her Majesty in Council.
5. Parliament may confer upon the High Court such powers in addition to those conferred by this section as may appear to Parliament to be necessary or desirable for the purpose of enabling the High Court more effectively to exercise the jurisdiction conferred upon it by this section.
6. Parliament may make provision with respect to the practice and procedure -
a. of the High Court in relation to the jurisdiction and powers conferred upon it by or under this section;
b. of the High Court and the Court of Appeal in relation to appeals to the Court of Appeal from decisions of the High Court in the exercise of such jurisdiction; and
c. of subordinate courts in relation to references to the High Court under subsection (3);
including provision with respect to the time within which any application, reference or appeal shall or may be made or brought; and, subject to any provision so made, provision may be made with respect to the matters aforesaid by rules of court.
7. In this section "the Court of Appeal" has the same meaning as it has in section 87.
Sect. 25 - Time of emergency
1. In this Chapter "period of public emergency" means any period during which -
a. Barbados is engaged in any war; or
b. there is in force a proclamation by the Governor General declaring that a state of public emergency exists; or
c. there is in force a resolution of each House supported by the votes of not less than two thirds of all the members of that House declaring that democratic institutions in Barbados are threatened by subversion.
2. A proclamation made by the Governor General shall not be effective for the purposes of subsection (1) unless it is declared therein that the Governor General is satisfied -
a. that a public emergency has arisen as a result of the imminence of a state of war between Barbados and another State or as a result of the occurrence of any earthquake, hurricane, flood, fire, outbreak of pestilence, outbreak of infectious disease or other calamity, whether similar to the foregoing or not; or
b. that action has been taken or is immediately threatened by any person of such a nature and on so extensive a scale as to be likely to endanger the public safety or to deprive the community, or any substantial portion of the community, of supplies or services essential to life.
3. A proclamation made by the Governor General for the purposes of this section shall, unless previously revoked, remain in force for one month or for such longer period, not exceeding six months, as the House of Assembly may determine by a resolution supported by the votes of a majority of all the members of that House;
Provided that any such proclamation may be extended from time to time for a further period not exceeding six months by resolution passed in like manner and may be revoked at any time by resolution supported by the votes of a majority of all the members of the House of Assembly.
4. A resolution passed by a House for the purposes of subsection (1)(c) may be revoked at any time by a resolution of that House supported by the votes of a majority of all the members thereof.
Sect. 26 - Saving of existing law
1. Nothing contained in or done under the authority of any written law shall be held to be inconsistent with or in contravention of any provision of sections 12 to 23 to the extent that the law in question -
a. is a law (in this section referred to as "an existing law") that was enacted or made before 30th November 1966 and has continued to be part of the law of Barbados at all times since that day;
b. repeals and re-enacts an existing law without alteration; or
c. alters an existing law and does not thereby render that law inconsistent with any provision of sections 12 to 23 in a manner in which, or to an extent to which, it was not previously so inconsistent.
2. In subsection (1)(c) the reference to altering and existing law includes references to repealing it and re-enacting it with modifications or making different provisions in lieu thereof, and to modifying it; and in subsection (1) "written law" includes any instrument having the force of law and in this subsection and subsection (1) references to the repeal and re-enactment of an existing law shall be construed accordingly.
Sect. 27 -Interpretation
1. In this chapter -
"contravention", in relation to any requirement, includes a failure to comply with that requirement;
"court" means any court of law having jurisdiction in Barbados other that a court established by a disciplinary law, and includes Her Majesty in Council and -
a. in section 12, section 13, section 14, subsections (2), (3), (5), (8), (9) and (10) of section 18, section 22 and subsection (7) of section 23 includes, in relation to an offense against a disciplinary law, a court established by such a law; and
b. in section 13, section 14 and subsection (7) of section 23 includes, in relation to an offense against a disciplinary law, any person or authority empowered to exercise jurisdiction in respect of that offense;
"disciplinary law" means a law regulating the discipline of any disciplined force;
"disciplined force" means -
a. a naval, military or air force;
b. a police force;
c. a prison service; or
d. a fire service;
"legal representative", in relation to any court or other tribunal, means a person entitled to practice as a barrister or solicitor before such court or tribunal; and
"member", in relation to a disciplined force, includes any person who, under the law regulating the discipline of that force, is subject to that discipline.
2. References in sections 12, 13, 17 and 22 to a criminal offense shall be construed as including references to an offense against a disciplinary law, and such references in subsections (2) to (7) and (11)(a) of section 18 shall, in relation to proceedings before a court established by a disciplinary law, be similarly construed.
3. In relation to any person who is a member of a disciplined force raised under the law of any country other than Barbados and lawfully present in Barbados, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any provision of sections 12 to 23.