Constitutional structure and position of IHL in domestic law
Antigua and Barbuda is a unitary, sovereign and democratic State within the Commonwealth. Between 1958 and 1962 it formed part of the West Indies Federation. The islands then became an Associated State with full internal autonomy in 1967 and achieved independence in 1981. Antigua and Barbuda is a constitutional monarchy.
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 Representatives. The higher levels of jurisdiction are the Eastern Caribbean Supreme Court (which actually comprises two courts: the High Court of Justice and the Court of Appeal) and Her Majesty in Council (Privy Council).
Section 2 of the Constitution provides that the Constitution is the supreme law of Antigua and Barbuda 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 Antigua and Barbuda include acts adopted by Parliament, UK laws and regulations (those that were in effect immediately before 31 October 1981 and that have not been repealed, but that may have been amended by the Governor-General before 1 November 1982) and English common law.
On 6 October 1986, Antigua and Barbuda deposited with the Swiss government its declaration of succession to the four Geneva Conventions of 1949 with effect retroactively as from 1 November 1981, the date on which that country became independent. On the same day (6 October 1986), Antigua and Barbuda acceded to the two Additional Protocols of 1977.
Full text of the Constitution:
Chapter II: Protection of Fundamental Rights and Freedoms of the Individual
Sect. 7 - Protection from inhuman treatment
1. No person shall be subjected to torture or to inhuman or degrading punishment or other such 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 authorises the infliction of any description of punishment that was lawful in Antigua on 31st October 1981.
Sect. 16 - Derogations from fundamental rights and freedoms under emergecy powers
Nothing contained in or done under the authority of a law enacted by Parliament shall be held to be inconsistent with or in contravention of section 5 or section 14 of this Constitution to the extent that the law authorises the taking during any period of public emergency of measures that are reasonably justifiable, for dealing with the situation that exists in Antigua and Barbuda during that period.
Sect. 17 - Protection of persons detained under emergecy laws
1. When a person is detained by virtue of any such law as is referred to in section 16 of this Constitution the following provisions shall apply, that is to say-
a. he shall, with reasonable promptitude and in any case not more than seven days after the commencement of his detention, be informed in a language that he understands and in detail of the grounds upon which he is detained and furnished with a written statement in English specifying those grounds in detail;
b. not more than fourteen days after the commencement of his detention a notification shall be published in the Official Gazette stating that he has been detained and giving particulars of the provision of law under which his detention is authorised;
c. not more than one month after the commencement of his detention and thereafter during the detention at intervals of not more than six months, his case shall be reviewed by an independent and impartial tribunal established by law and presided over by a suitably qualified legal practitioner of at least seven years standing appointed by the Chief Justice;
d. he shall be afforded reasonable facilities to consult a legal representative of his own choice who shall be permitted to make representations to the tribunal appointed for the review of the case of the detained person; and
e. at the hearing of his case by the tribunal appointed for the review of his case he shall be permitted to appear in person or by a legal practitioner of his own choice.
2. On any review by a tribunal in pursuance of this section of the case of a detained person, the tribunal may make recommendations concerning the necessity or expediency of continuing his detention to the authority by which it was ordered but, unless it is otherwise provided by law, that authority shall not be obliged to act in accordance with any such recommendations.
3. Nothing contained in subsection (1) (d) or subsection (1) (e) of this section shall be construed as entitling a person to legal representation at public expense.
Sect. 18 - Enforcement of protective provisions
1. If any person alleges that any of the provisions of sections 3 to 17 (inclusive) of this Constitution has been, 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 that 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 (1) of this section; and
b. to determine any question arising in the case of any person that is referred to it in pursuance of subsection (3) of this section,
- and may make such declaration and 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 3 to 17 (inclusive) of this Constitution:
Provided that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleges are or have been available to the person concerned under any other law.
3. If in any proceedings in any court (other than the Court of Appeal, the High Court or a court-martial) any question arises as to the contravention of any of the provisions of sections 3 to 17 (inclusive) of this Constitution, the person presiding in that court may, and shall if any party to the proceedings so requests, 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 in pursuance of subsection (3) of this section, 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 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. There shall be such provision as may be made by Parliament for conferring upon the High Court such powers in addition to those conferred by this section as may appear to be necessary or desirable for the purpose of enabling that court more effectively to exercise the jurisdiction conferred upon it by this section.
6. The Chief Justice may make rules with respect to the practice and procedure of the High Court in relation to the jurisdiction and powers conferred on it by or under this section (including rules with respect to the time within which applications may be brought and references shall be made to the High Court).
Sect. 19 - Protection from derogations from fundamental rights and freedoms generally
Except as is otherwise expressly provided in this Constitution, no law may abrogate, abridge or infringe or authorise the abrogation, abridgement or infringement of any of the fundamental rights and freedoms of the individual herein before recognised and declared.
Sect. 20 - Declaration of public emergency
1. The Governor-General may, by Proclamation which shall be published in the Official Gazette, declare that a state of public emergency exists for the purposes of this Chapter.
2. Every declaration shall lapse-
a. in the case of a declaration made when Parliament is sitting, at the expiration of a period of seven days beginning with the date of publication of the declaration; and
b. in any other case, at the expiration of a period of twenty-one days beginning with the date of publication of the declaration, unless it has in the meantime been approved by resolutions of both Houses of Parliament.
3. A declaration of public emergency may at any time be revoked by the Governor-General by Proclamation which shall be published in the Official Gazette.
4. A declaration of public emergency that has been approved of by resolutions of the Houses of Parliament in pursuance of subsection (2) of this section shall, subject to the provisions of subsection (3) of this section, remain in force so long as the resolutions of those Houses remain in force and no longer.
5. A resolution of a House of Parliament passed for the purposes of this section shall remain in force for three months or such shorter period as may be specified therein:
Provided that any such resolution may be extended from time to time by a further such resolution each extension not exceeding three months from the date of the resolution effecting the extension and any such resolution may be revoked at any time by a resolution of that House.
6. Any provision of this section that a declaration of emergency shall lapse or cease to be in force at any particular time is without prejudice to the making of a further such declaration whether before or after that time.
7. A resolution of a House of Parliament for the purposes of subsection (2) of this section and a resolution extending any such resolution shall not be passed unless it is supported by the votes of a majority of all members of that House.
8. The Governor-General may summon the Houses of Parliament to meet for the purposes of subsection (2) of this section notwithstanding that Parliament stands dissolved, and the persons who were members of the Senate and the House immediately before the dissolution shall be deemed, for those purposes, still to be members of those Houses, but, subject to the provisions of sections 33 and 42 of this Constitution (which relate to the election of the President, Vice-President, the Speaker, and the Deputy Speaker) a House of Parliament shall not, when summoned by virtue of this subsection, transact any business other than debating and voting upon a resolution for the purpose of subsection (2) of this section.
Sect. 21 - Interpretation and savings
1. In this Chapter, unless the context otherwise requires- "contravention", in relation to any requirement, includes a failure to comply with that requirement, and cognate expressions shall be construed accordingly;
"court" means any court of law having jurisdiction in Antigua and Barbuda other that a court established by a disciplinary law, and includes Her Majesty in Council and, in section 4 of this Constitution, a court established by a disciplinary law;
"disciplinary law" means a law regulating the discipline of any disciplined force;
"disciplined force" means-
a. a naval, military or air force;
b. the Police force; or
c. a prison service;
"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;
"legal practitioner" means a person entitled to practice as a barrister in Antigua and Barbuda or, except in relation to proceedings before a court in which a solicitor has no right of audience, entitled to practice as a solicitor in Antigua and Barbuda.
2. In relation to any person who is a member of a disciplined force raised under any law, 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 of the provisions of this Chapter other than sections 4, and 7 of this Constitution.
3. In relation to any person who is a member of a disciplined force raised otherwise than as aforesaid and lawfully present in Antigua and Barbuda, 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 of the provisions of this Chapter.
4. In this Chapter "public emergency" means any period during which-
a. Her Majesty is at war; or
b. there is in force a declaration of emergency under section 20 of this Constitution, or there are in force resolutions of both Houses of Parliament supported by the votes of not less than two-thirds of all the members of each House declaring that democratic institutions in Antigua and Barbuda are threatened by subversion.
5. A Proclamation made by the Governor-General shall not be affective for the purposes of section 20 of this Constitution unless it contains a declaration 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 Her Majesty and a foreign 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 or body of persons 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.