FACTS:

The facts presented are accepted as given.

MAJOR ISSUES:

The major issues which fall to be considered are as follows:

1. Whether the Anti-Terrorism Act 2016 can be challenged on the basis that it violates the separation of powers doctrine?

2. Whether the Anti-Terrorism Act 2016 is open to judicial review?

MINOR ISSUES:

In order to address the major issues it is necessary to consider the following minor issues:

1. Whether the separation of powers doctrine can be applied to the Commonwealth Caribbean country of Barbaros?

2. Whether as a consequence of (1) can the doctrine of judicial review be applied to the Commonwealth Caribbean country of Barbaros?

3. Whether the Anti-Terrorism Act 2016is reasonably required?4. Whether the Anti-Terrorism Act 2016 is reasonably unjustified?5. Whether the Anti-Terrorism Act 2016 is valid?6. Whether the appointment of a sitting judge to the anti-terrorist group is a

violation of the separation of powers doctrine?7. Whether the Anti-Terrorism Act transfers judicial power from a superior

court judge to a magistrate for the purposes of the act?8. Whether the Anti-Terrorism Act 2016 violates the right to protection of the

law?9. Whether the Anti-Terrorism Act 2016 violates the presumption of innocence

re: bail?10.Whether the Anti-Terrorism Act 2016 impinges on a judge’s ability to

impose a just sentence?11.Whether the power to pardon conferred on the Head of State by the

constitution extends to commuting a sentence to a shorter period?12.Whether an unsigned Anti-Terrorism Act 2016 is open to judicial review?

RULE:

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 of an Act which is inconsistent with a fundamental right is guaranteed by the Constitution if that Act has been passed by special majority of all the members of each House, declares itself to be inconsistent with the fundamental human rights sections of the Constitution and is not shown to be unreasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.

6. A role of the judiciary is interpreting law, applying it to the facts of each case in an effort to render an unbiased decision. Another and just as important role is upholding the rule of law requiring the judiciary to review the exercise of executive power ensuring compliance with the law. Further to this the judiciary generally does not make law (this is normally the responsibility of the legislature through statute) however in some common law jurisdiction an exception is made by setting precedent for other judges to follow (this is the responsibility of the judiciary through precedent). The Judiciary must therefore take care not to appear to be usurping executive powers. In R v Humphreys [1977] AC1, Viscount Dilhorne said “A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred.” Also in R v Power [1994] 1 SCR 601, 621-623 L'Heureux-Dube J made clear that “there is in Canada a separation of powers among the three branches of government – the legislature, the executive and the judiciary. In broad terms, the role of the judiciary is, of course, to interpret and apply the law; the role of the legislature is to decide upon and enunciate policy; the role of the executive is to administer and implement that policy….. It is manifest that, as a matter of principle and policy, courts should not interfere with prosecutorial discretion. This appears clearly to stem from the respect of separation of powers and the rule of law. Under the doctrine of separation of powers, criminal law is in the domain of the executive.”

7. Judicial power is to be exercised by persons whose independence is protected by the various mechanisms employed in the constitutions to insulate the judiciary from outside influences. These include, inter alia,

security of tenure. Simply put a judge is identified with the protection of his independence. Judicial power cannot, therefore, be vested in persons who do not enjoy such protections. The question thus arises as to whether such delegation or transfer of judicial power offends the basic principle of separation of powers. In Hinds v R Diplock argued that where an issue of jurisdiction was in question it must be the substance of the law and not the form. He further went on to ask the following: What is the nature of jurisdiction to be exercised by the judges who are to compose the court to which the new label is attached? Does the method of appointment and security of tenure conform to the requirements of the constitution applicable to judges who, at the time of the constitution came into force exercised jurisdiction of that nature?

8. The right to the protection of the law is guaranteed in all of the constitutions of the commonwealth Caribbean by the due process clause incorporating the doctrine of the separation of powers. This is to ensure no citizen is seized, imprisoned, stripped of his rights, possessions, outlawed, exiled, deprived of his neither standing nor force used against him except by lawful judgement of his equals or by the law of the land. In this instance see Gairy v R.

9. The presumption of innocence is a principle of fundamental justice which applies to all stages of the criminal process but this presumption is rebuttable at the bail stage for just cause. Bail can therefore be denied for those who pose a “substantial likelihood” of committing an offence or interfering with the administration of justice and only where this “substantial likelihood” endangers “the protection or safety of the public.” This determination can only be made by a judicial officer after a hearing of the facts. In recent years Caribbean courts have invalidated legislation that constrains radically access to bail see the bail act of Jamaica and Nation v DPP.

10. It is pre-eminently the function of the legislature to determine what conduct should be criminalised and punished. Mandatory minimum sentencing impinges on the judges’ ability to; based on the circumstances, impose a just sentence.

11.The criminal justice system is seen by most as retributive using the cold edge of steel to achieve this end impacting negatively on the fundamentals tenants of liberty, life and an unencumbered pursuit to happiness. There is therefore a need to by virtue of the possibility of mistakes being, underlying

social under currents and a globalised influence to take another look at situations where life and liberty may be curtailed by the state. Section 78 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.

4. Chapter 3 section 11-23 of the Barbados constitution states the Barbados constitution provides for the protection of fundamental rights and freedoms of the individual. The Act is The Act is stated to be in breach of the fundamental rights

5. and freedoms and is passed by the relevant majority to be inconsistent with those provisions. The law is valid because the process.

6. In R v Humphreys [1977] AC1, Viscount Dilhorne said “A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred.” The Act establishes a special Anti-terrorism Unit within Barbaros headed by a security intelligence expert and a High Court Judge assigned to the Unit from the Barbaros High Court.

7. In Hinds v R Diplock argued that where an issue of jurisdiction was in question it must be the substance of the law and not the form. He further went on to ask the following: What is the nature of jurisdiction to be exercised by the judges who are to compose the court to which the new label is attached? Does the method of appointment and security of tenure conform to the requirements of the constitution applicable to judges who, at the time of the constitution came into force exercised jurisdiction of that nature?

8. Gairy v R.9. In recent years Caribbean courts have invalidated legislation that constrains

radically access to bail see the bail act of Jamaica and Nation v DPP.10. In Hinds v R the issue of sentencing was raised.11. Section 78 provides for the Head of State acting through a mercy committee

the purview of varying the sentence of any convicted criminal after a review. The Head of State has the power of pardon under the Constitution.

12.58. (1) A Bill shall not become law until the Governor-General has assented thereto in Her Majesty’s name and on. Her Majesty’s behalf and has signed it in token of such assent. (2) Subject to the provisions of sections 55 and 56, a Bill shall be presented to the Governor-General for assent if, and shall not be so presented unless, it has been passed by both Houses either without amendment or with such amendments only as are agreed to by both Houses.

The Act has been passed by both Houses of Parliament but has not yet been signed by the Head of State.

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.