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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 judges 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 Majestys name and on. Her Majestys 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.