In a preceding article we spoke about Bail in Barbados generally, with particular focus on the Barbadian Bail Act. If you read that article entitled ‘Bail in Barbados- Did You Know?’ you may recall that the Court has a discretion to grant or refuse to grant a person bail and in exercising this discretion the Court may consider certain factors set out by the Bail Act. For some time, Barbadians have been reacting to the Court’s granting of bail to persons accused of certain types of offences. Of particular interest to Barbadians is the Court’s granting of Bail to persons accused of murder. We will therefore briefly discuss whether a person accused of murder should be granted bail.
We realized in the former article that while Magistrates do not have the power to grant bail to persons accused of murder, judges of the High Court have the authority to grant bail to such persons. In Barbados, we have noticed that persons who were on remand for years after being charged with murder, have been granted bail by the Court. This has led to many persons expressing their disapproval with the Court’s decisions to grant accused persons bail.
Some persons complain that such a decision is unfair to family members of the victim. It is completely understandable that the relatives and friends of the victim would feel some emotion upon hearing that the person charged with the murder of their loved one was granted bail.
There are also persons who disagree with the granting of bail to persons accused of murder because they believe they pose a threat to members of society. There are others, who, because they may not understand what bail is and how it works argue that the accused was released with a slap on the wrist.
Before I refer to the Constitution of Barbados, I must point out that a person accused of murder has not been found guilty of the serious offence; they have only been charged with murder. It is of the greatest importance that we digest this. An accused person has not pleaded guilty neither has he or she been found guilty of the offence for which he or she is charged. Bail should therefore not be seen as a slap on the wrist since it is not a sentence. In fact, time spent on remand awaiting trial may be considered as punishment since, where there is a finding of guilt, the Court treats such time as part of the sentence.
I must also highlight that the fundamental question, among the many questions with which the Court is faced in deciding whether to grant bail, is whether the accused person will appear at Court for the trial of the matter.
Let us turn our attention to section 13 of the Constitution which provides for the right to personal liberty. Subsection 3 is of great significance to the matter at hand. I will set it out in full to avoid butchering the provision.
Any person who is arrested or detained-
(a) for the purpose of bringing him before a court in execution of the order of a court; or
(b) upon reasonable suspicion of his having committed or being about to commit a criminal offence,
and who is not released, shall be brought before a court as soon as is reasonably practicable; and if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings which may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.
Therefore, given this Constitutional provision and the provisions contained in the Bail Act, a person accused of murder is entitled to apply for bail and further, has a right to bail if he or she is not tried in a reasonable time. The Court may attach suitable conditions to the bail to ensure that the accused appears at Court for subsequent court hearings or trial.
– Kara-Je Kellman
(You can read the article ‘Bail In Barbados – Did You Know?’ at: https://bealexattorneys.wordpress.com/2016/03/17/bail-in-barbados-did-you-know/)
Most of us do not ever venture into a Court unless we are a part of the Justice System in Barbados – maybe a lawyer, police officer or probation officer.
While efforts have been made to upgrade the Courts they are essentially functioning under the same physical constraints as they have been for decades.
One still approaches the Court to find people sitting on benches or standing outside the Court until they are ushered in. Some benches now have back rests but some still do not. Perhaps the Courts are intended to be an unwelcoming place because the intention is to make one uncomfortable with the visit.
Who is likely to be there
(I sometimes think however that our infrastructure reflects who we expect to use it, and thus the stark contrast between the van stand and the international airport – but that is merely a random thought. )
The Magistrate’s Court has both a civil jurisdiction of no more than $10,000.00 with some exceptions such as wrongful dismissal and a criminal jurisdiction, thereby seeking to address many of the small but not unimportant issues plaguing the society.
Individuals are often seen at their most desperate and their most vulnerable. Some manage to catch a glimpse of what it is like for those whose existence in our society are predetermined to be solitary, poor, nasty, brutish, and short.
For every charge or grievance there is a societal issue which has lead to the appearance before the Court. And arguably the appearance marks a failure of the society to deal with that set of circumstances adequately.
The underlying social issues
Assaults might stem from relationships within the community which have soured whether they be relationships between spouses or between friends.
Disputes might occur over maintenance because parents do not understand their parenting role or their understanding might be clouded by anger over the failure of the relationship.
A debt in the past which would have been forgiven between friends becomes a matter for the Court because friends consider themselves wronged somewhere along the line in the friendship – maybe a falling out over a woman.
Then there is the passing parade of those involved in minor criminal activity. Many of them young men under 25 years of age – the future of Barbados. Magistrates offer words of warning, words of reason with the certain knowledge that quite often those who appear before them will appear once again, older, with more serious crimes.
Underpinning all of this is that many of our Citizens have mental problems which just like physical problems will get worse if not treated.
All of these matters come before the Magistrate who over time comes to recognise the human emotions layered beneath the cold bedrock of the law.
Can the Court adequately address these underlying problems?
The Magistrate’s Court is a good barometer if we wish to examine the struggles of ordinary people. It is clear that some individuals need help. Probation officers are on hand, recourse is made to investigations and reports on the family as well as reports to inform sentencing. There are some rehabilitation and counselling programmes which are available, some run by government and some which are private.
Relatively new tools have been introduced such as the Domestic Violence (Protection Orders) Act Cap. 130A and the Penal System Reform Act Cap. 139 which give the Magistrate more and better options in dealing with those who appear before him.
And yet we have not done enough.
What is to become of the individuals in now forced relationships who have the responsibility of raising children when they have not themselves come to terms with their own problems?
What is to become of the hundreds of boys and young men who appear before the Court on a monthly basis?
Should community disputes however small require the engagement of the full armament of the judicial system?
It is now normal for there to be a public outcry fuelled by social media when there is some tragic event. But the truth is we do not pay very much attention when the symptoms first appear either as individuals or as a society.
Seeking new solutions
For those who agree that more should be done and that there should be more effective solutions, it will be a daunting task to recalibrate the thinking of the majority to the view that those who appear before the Courts could benefit from earlier interventions and evaluation, monitoring and support after trial.
Since we are no longer our brother’s keeper – let it be said too that weightier interventions and more effective programmes would make the society better for us all.
So you have defaulted on your mortgage despite everything I’ve told you. I’m sorry to hear that, but it happens.
Many people fall short of their obligations or simply fail. Look at Donald Trump. He had all those bankruptcies and is now a billionaire running for President of the United States.
This is what this post is about. The important thing is not that you messed up but how you handle messing up.
I know many of you look at your house and see the time and energy you put in. You can say why you picked that hideous colour for the feature wall and still laugh when you recall Junior’s mishap with the gardening tools on your parquet floors. It is an emotional investment. I get it.
However, you really should also remember that you entered into a business deal. Yes, every mortgagor is a businessperson. The mortgage really came about because you wanted to invest in property, whether for its own sake, or for your family, or for a space to live. Some even pay their spouse’s or friend’s gambling debts or go on a world cruise because their next door neighbours won’t shut up about theirs – called investing in experiences (YOLO!). The Bank wanted to invest in your loan in the hope of getting a substantial, reliable return. So you both are partners, the Bank bringing the seed money.
Now, in this mind-set look at your options. First, you need to reassure your partner you’re still good for the return before it demands all its money and gets out of the venture. As I’ve said previously you have a couple things in your favour: one, the Bank (Mortgagee) will do its best to keep its investment if there is any hope you can still pay, and two, the Bank can usually forgive defaults if you rectify it in a timely manner.
Therefore, the first thing you do is call your partner, the Bank, via your liaison officer, explain why you are in default and say when you can rectify it. I know you may think that she does not know, so why draw attention to yourself? This thinking is from 1827, as if your mortgage account involves a dusty ledger and an accountant with undiagnosed dementia who checks it once a year. No. This is the twenty-first century. It’s all automated now. The day after the system does not see your payment, or you didn’t submit that insurance certificate or you missed a loan payment on some other facility, a report is generated that shows up from her supervisor to as far as a certain northern parent company who is wondering if its investment in you is suspect and if it should cut its losses before the shareholders find out. If the Bank takes too long to issue a notice to you, the officer in the parent company may actually call or email that poor liaison officer and make sure she calls, writes or emails you. So not only will you be showing you are honest and trustworthy by calling her first, you will be making her life easier as well, which makes people more disposed to giving you a little ease. If you handle it right, most likely you and the Bank will stay partners well into the future.
If you’re saying you really can’t pay, that you’ve lost your job and cannot find another or have become disabled and you can no longer pay for the multi-million dollar condo at Rockley Resort you still owe a king’s ransom on, then that’s where it gets complicated.
Well, the prudent, obvious thing is to dissolve the business before you incur further losses. In this case you put the property up for sale and move in with your parents. Sorted.
Or, you could rent it out and then move in with your parents. That way you can still pay your mortgage and get some income as well. But get permission from the Bank first. You most likely agreed to do this in your contract.
I hear what you’re saying: your parents’ house is cramped, you’re comfortable, you love your house and besides, the Bank is rich and they can wait on the money. They are making loads of interest on you, after all, so why would they be stressed?
Don’t forget, this is a business transaction. The Bank was sitting there, minding its own business, when you walked in and pitched them on a wonderful opportunity and now it’s looking sour. Your partner is going to do what any prudent businessperson will do; try to get out before its losses are too great and the shareholders sue for incompetence.
Okay, now you are crying about leaving your travertine tiled floors that you installed yourself and feel the Bank should understand. Why? The Bank never agreed to be your friend. The longer you linger in the house the interest is increasing and eroding the worth of your house (the equity) and the Bank’s ability to recoup the sum you owe. It’s a serious matter, especially if you both stand to be saddled with a balance on a loan that the both of you will spend years into the future trying to pay or collect, annoying if you really can’t pay.
Still, you’re saying you’d rather die than give up your custom kitchen. They’ll have to drag you screaming from your double ovens. Sadly, this means your partner will have to enforce the mortgage contract.
The next thing that will happen is that your matter is assigned to a lawyer ($$$). The lawyer will send you what is called a “Statutory Notice” (Notice). Because of the Property Act CAP 236 of the Laws of Barbados, several provisions are implied into your mortgage unless you agreed in your mortgage contract to specifically discard them. One provision is that a formal notice must be sent to you, demanding that you pay all the money due to the Bank under the mortgage, or the Bank will sell your land/house/condo. The law says the Bank can only proceed one month after you receive the Notice, which you probably agreed can be deemed served by registered post to your last known address. So, no, you can’t just shut all the windows and hide.
If your land is without a house on it, the bank can conceivably hold an auction the day after the expiry of the wait time. They won’t do that, however, as under the same laws they have a duty to act in good faith and find the best market for your property at that time. To treat it as though it were selling its own house. So they have to drum up interest by advertising, seek professional valuations to make sure that they know the value of the land. However, once they’ve done their best they can sell it to whomever makes an offer they will take. They are not required to wait for a better market or offer.
However, if there is a house on the land, the above still applies, but the assumption is that persons are occupying the house. So an application required by law (Property Act) is made to the court to gain possession. This application came out of equity (principles of fairness the court adheres to that are not strictly law but are almost as good as) because you both have already agreed that the sale would happen if you can’t pay.
Basically, so that Mortgagors do not “lose” their homes willy-nilly, they are given an opportunity to make their case to the court if they believe that they can redeem the mortgage (pay back everything to the Bank, now including its legal expenses) or remedy some other default in a reasonable time rather than have to move out. What should happen is that the Court examines if this is just wishful thinking or not. If not, they are given a reasonable time under the circumstances to pay or deliver up possession, either by adjourning the matter to a later date or by a possession order which is suspended a few months to give you time to pay. If there is no reasonable prospect of redemption then the order for possession should be granted. The order now gives the Mortgagee access to the court’s organs for the enforcement of its order i.e. the Bank can now have the court’s marshals come and remove you, even screaming, and now you still have to go live with your parents. (Actually the marshals do work with you. They’ll explain they have to execute the Writ of Possession and say when they’ll be back to put you out, by which time you should be ready to just hand over the keys, or else…)
So, wouldn’t it be easier to avoid all that?
What you should do when you take out a mortgage is have a plan for when the business deal doesn’t pan out, like you would for a hurricane or a fire. There is no shame in it.
I guess, what I am really saying is, depending on how you handle the situation… you could be Donald Trump!
A lot of people love the idea of having a mortgage. Basically you pay the Bank – from whom you have borrowed the money – until you can say that you own a “piece of the rock” (property).
A lot of people barely read the contract that they sign. I know someone that complained about her lawyer making her read the document, lamenting that she was paying this person all this money, holding her up when all she wanted to do was move in and now they want her to read this long set of writing.
So, I thought I would point out what you are signing when you sign a mortgage contract if your only motivation is to get that niggly detail out of the way so you can get your hands on the cute four bedroom with double vanity sinks in the master bathroom, walk in closet, chef’s kitchen and devastating views.
“This Deed of Charge by Way of Legal Mortgage”
A mortgage is a fancy name for a loan given by a lending institution, usually a Bank or Credit Union, in exchange for a security i.e. something valuable it can sell to get back its money if you can’t pay. It can be land, shares or a chattel house – once you own it and they are willing to use it as security.
In Barbados, for mortgages over land, rather than transfer the ownership of the property to the lender until you have paid in full, you register a Charge by way of Deed i.e. a signed and sealed formal document which is recorded against your land at the Land Registry. The recording – which makes it the Charge – will constitute notice to everyone that the Bank must give permission for you to sell, one, and two, even though your name is on the title deed and you own the property, since you owe the Bank, the money from the sale must satisfy your loan first before it goes anywhere else. If you are lucky, the sale pays off your debt and expenses and leaves a balance for you. If you are not lucky and it does not, you owe the balance of the loan and it will be placed in the hands of a debt collector. Make no mistake, the need for security is not a gamble for the Bank. It is a type of insurance so that the Bank can recoup most if not all of its money should you not pay.
This Charge also gives the Bank the right to sell the property in order to recoup its money, a right conferred on it by the Property Act, CAP 236 of the Laws of Barbados. In this case it will sell as Mortgagee (lender with security) and it does not need the permission or intervention of the Mortgagor (you). But usually this only happens if you are in default of your obligations. Usually.
“The Mortgagor promises to pay ‘on demand’”
This means what it says.
Your mortgage may or will contain other clauses which state that if you do not: pay the instalments on time each time, keep the premises insured, keep you insured, inform the Bank you are leasing the premises or making substantial changes to it, pay your other debts to the Bank or go bankrupt; then you are in default of the terms of the mortgage and the Bank has the right to give you notice to pay all sums due to it or it will sell your property to recoup the same. This list is not exhaustive. These are usually contained in a “term” mortgage i.e. you breach a term and you trigger a consequence like all the sums owed come due or some other action to your detriment. Of course, the Bank may have the discretion to let the default slide if you rectify it.
But, if the words “pay on demand” are in your mortgage, without “if you do such and such” type of language, and they usually are, it means you have a “demand” mortgage and the Bank can simply send you a demand without you having defaulted. Let me be clear; there does not have to be a default or a reason. All those other clauses may be in there to allow you to understand what is required or provide impetus, but it does not matter. Once it says “on demand” without more and you sign it, you are at the mercy of the Bank.
The good news is that the Bank is not remotely interested in voluntarily giving up the tidy bit of interest you’ll be paying to them in order to go into the real estate market. No thanks.
“…Together with interest to date of payment at such rates and upon such terms as may from time to time be agreed commission fees and other charges and all legal and other costs charges and expenses incurred by the Mortgagee in relation to the Mortgagors or the property hereby mortgaged on a full indemnity basis.”
The above, in various forms is usually in your mortgage. It means you pay whatever interest rate, if your mortgage has a variable rate that the Bank may set from time to time. It also means that the Bank is NOT to be out of pocket because of you (meaning of “full indemnity basis”). So you pay its legal fees as well as your own, any commission any agent may charge them as necessary, any charges or rates that come up because of the property like taxes or stamp duty, any expenses incurred because of you or your property. If you default and they have to pay a lawyer to get you to pay or to follow certain formalities in order to sell your property, you will have to pay for this. Granted, these charges in law must be “reasonable”. You should note, however, an attorney-at-law can agree remuneration at whatever rate with her client, as long as it is not below the minimum set by law. So watch out.
“The Mortgagors by way of security hereby irrevocably appoint the Mortgagee and the person deriving title under it and separately any receiver appointed hereunder severally to be their attorney”
A Power of Attorney is granted by you when you sign the mortgage to: the Bank, whomever the Bank assigns the mortgage to and, the receiver the Bank may appoint. This Power of Attorney cannot be revoked. Those of you who don’t watch soap operas should note that it means the Bank can act for you to do whatever is necessary to protect or realise its security. That same clause, further down, will usually say that it can ask you to sign whatever is necessary for this purpose. If you don’t sign, you are in breach of the mortgage contract.
“Any notice or demand for payment by the Mortgagee hereunder shall without prejudice to any other effective mode of making the same be deemed to have been properly served on the Mortgagors if served on the Mortgagors or their personal representatives personally or delivered or sent by registered letter post telex facsimile or cable to the Mortgagors or their personal representatives at their usual or last known place of abode or business.”
You may be tempted to say that you have not received whatever letter or notice and therefore you cannot be held responsible for the consequences. Don’t be silly. When you signed the Deed, you agreed that if it is sent to your address or last known address or to your representative, by any of the above means, you are served. Don’t change the rules of the game now you have your hands on the Bank’s money and it becomes inconvenient for you to repay it. What you should do is notify the Bank if you change address, get divorced, move to Miami, or have issues getting mail and provide a better address. I have seen people end up having to work and repay a balance owed, after the sale of the property, which is higher than the amount borrowed. Why? It could be many factors but too many times it’s because they avoided notifications, paying the debt or dealing with the inevitable sale of the property until the interest and charges were ridiculous. This is a heavy obligation you are undertaking. Act the part.
It’ll help you to appreciate those spectacular views and the walk-in closet.
The duty of parents to provide for the maintenance of their children, is a principle of natural law; an obligation laid on them not only by nature herself, but by their own proper act, in bringing them into the world: for they would be in the highest manner injurious to their issue, if they only gave their children life, that they might afterwards see them perish… – Blackstone (Commentaries, book 1, chapter XVI)
In Barbados, the Family Law Act Cap. 214 of the Laws of Barbados (‘the Act’) provides for the right to maintenance of a party to a marriage or union other than marriage as well as for the right to maintenance of children of the marriage or of the union. According to the Act, maintenance means “the provision of money, property and services, and includes (a) in respect of a child, provision for the child’s education and training to the extent of the child’s ability and talents. It should be noted that either party to the marriage may apply for maintenance for the child or children”.
According to Section 39 of the Act ““union other than marriage” or “union” means the relationship that is established when a man and a woman who, not being married to each other, have cohabited continuously for a period of 5 years or more and have so cohabited within the year immediately preceding the institution of the proceedings”. A child of the marriage, according to Section 3 (1) of the Act, includes a child adopted after the marriage of the husband and wife and a child of both the husband and wife born before their marriage.
Section 51 of the Act states that the parties to a marriage, or union other than a marriage, are liable, according to their respective financial resources, to maintain the children of the marriage or of the union who are unmarried and have not attained the age of 18 years. It is useful to note that the court may also make an order for maintenance with respect to a child who has attained the age of 18 years if the provision of maintenance is necessary to enable the child to complete his education or if the child is mentally or physically handicapped.
Section 54 (3) (b) of the Act provides that the order should specify the period for which it is in force or until a particular day. Moreover, section 54 (1) states that in determining whether to make an order for maintenance of a child or in determining the period for which the order should remain in force or the amount of any payment to be made under the order, the court should consider the following:
“(i) the income, earning capacity, property and other financial resources of the child,
(ii) the financial needs of the child; and
iii) the manner in which the child is being, and in which the parties to the marriage or union expected the child to be, educated or trained.”
The court should also take into account the following and other factors which are listed under section 53 (2): “the financial needs and obligations of each of the parties; the responsibilities of either party to support any other person; the eligibility of either party for a pension, allowance, or benefit under any Act or rule, or under any superannuation fund or scheme, or the rate of any such pension, allowance, or benefit being paid to either party; the duration of the marriage or union other than a marriage, and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration”.
It should be noted that the decree nisi of dissolution of marriage will not become absolute until the Court is satisfied that proper arrangements have been made for the welfare of the children who are under eighteen years of age.
At common law, both ordinary citizens as well as police officers have the power to arrest, without a warrant, a person who has breached the peace or who is about to breach the peace. The power of the police to arrest without a warrant is amplified by statute. Thus, the police have a wider power to arrest a person without a warrant.
The House of Lords in Albert v Lavin  3 All ER 878 held ‘that every citizen, whether a police officer or not, in whose presence a breach of the peace was being, or reasonably appeared to be about to be, committed had the right to take reasonable steps to make the person who was breaking or threatening to break the peace refrain from doing so and that those reasonable steps in appropriate cases would include detaining him against his will’.
The Police Act Cap. 167 of the Laws of Barbados (‘The Act’) at sections 19(b) and 20(1) permits members of the Police Force to make arrests without warrants. The latter section also sets out the circumstances under which police officers may lawfully arrest persons without a warrant. Listed below are examples of such circumstances. According to section 21 of the Act, a member of the Royal Barbados Police Force may lawfully arrest:
‘any person whom he suspects upon reasonable grounds of having committed an arrestable offence’;
‘any person who commits a breach of the peace in his presence’;
‘any person who obstructs or assaults a member of the Force while in the execution of his duty or who has escaped or attempts to escape from lawful custody’;
‘any person in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to such thing’;
‘any person whom he finds lying or loitering in any highway, yard or other place between the hours of eight o’clock in the evening and five o’clock in the morning and not giving a satisfactory account of himself’;
‘any person whom he has reasonable cause to suspect has committed any offence rendering him liable to arrest without warrant’.
It is therefore lawful for a citizen or police officer to arrest a person without a warrant, according to common law. Further, according to the Police Act, members of the police force may exercise their extended power to arrest persons without a warrant, where any of the circumstances provided by the Act are present.
In Barbados, a person charged with an offence or convicted of an offence is entitled to bail, subject to the Bail Act Cap. 122A (“the Act”). The fundamental test in determining whether to grant bail is whether the accused will return to court for the determination of the matter. The Court also takes into account other factors when exercising its power to grant bail or not to grant bail.
According to Section 5 (2) of the Act, the Court must take into consideration relevant factors including the following:
(a) “the nature and seriousness of the offence or default, and the probable method of dealing with the defendant for it;
(b) the character, antecedents, associations and community ties of the defendant;
(c) the defendant’s record as respects the fulfilment of his obligations under previous grants of bail;
(d) the strength of the evidence of his having committed the offence or having defaulted, except where the defendant’s case is adjourned for inquiries or a report; and
(e) the length of time the defendant would spend in custody if the court were to exercise the power conferred on it by section 218A of the Magistrate’s Courts Act” (power to remand the defendant in custody).
According to Section 5 (1) of the Act, the Court may refuse to grant an accused person bail if it believes that the accused person would fail to surrender to custody; reoffend or interfere with witnesses. Further, the Court may not grant bail if it is satisfied that the accused should be kept in custody for his own protection; for the protection of the community or if he is a child or young person, for his own welfare. The Court may also deny to grant bail to a person who is charged with an offence alleged to have been committed while on bail.
The Court may grant bail with conditions. The Court may, before releasing the defendant, require him to provide a surety to ensure his surrender to custody. Further, the Court may require a defendant to surrender his passport, report to a police station on appointed days and at appointed times, order the defendant to comply with any requirement to ensure that: the defendant surrenders to custody, does not commit an offence while on bail, does not interfere with witnesses or otherwise obstruct the course of justice or, makes himself available for the purpose of enabling inquiries or a report of any medical examination to be made to assist the court in dealing with him for the offence. If a defendant who is on bail fails to surrender to custody, the Court may issue a warrant for his arrest.
It is important to note that a magistrate does not have the power to grant bail to a person accused of murder, treason, high treason or an indictable offence under the Firearms Act. A person accused of the above offences may only be granted bail by a High Court Judge.
Where bail is denied, the defendant may reapply for bail at the Magistrate’s Court and may also apply for bail at the High Court. If the Court does not grant bail to a person who has been charged with an offence punishable by imprisonment, the accused person will be remanded until the determination of his case or until bail is subsequently applied for and granted.
The recent decision by Government to ban the importation of Unmanned Aerial Vehicles (UAVs) for one year conjures up in one’s mind book burning and slavery.
At the same time one reflects on Government’s very strident calls for Barbadians to be risk takers and entrepreneurs. Much to its credit Government recently passed the Cultural Industries Development Act and has also facilitated a programme in human resources development for which film and video has been a significant beneficiary.
And so we find ourselves in a perpetual conundrum where our ambitions of wealth creation are thwarted by our puritan passion for regulation.
Those in the trenches of entrepreneurial endeavor might become overwhelmed by Barbados’ painful and desperate struggle to keep pace with its competitors while embracing an irrational fear that the majority of the population if given too much freedom will cause untold harm and bring calamity upon the nation.
There is no doubt that the establishment often has a difficulty in dealing with new technologies and harbor notions of all manner of evil which might attend if new technologies were to run rampant amongst the people. The fear, which caused the burning of books throughout history, is still manifestly with us.
Regulating Commerce – How much is too much?
Barbados has a long sad and unresolved history with the regulation of commerce, for Barbados’ modern economy was based on a sugar industry, facilitated by legislation, which made unpaid labour lawful.
While Barbadians shy away from examining their history, sensible people do so to avoid making the mistakes of their ancestors and indeed to learn from them.
The reliance on unpaid labour came to an end, not because it was considered wrong but primarily because it no longer made commercial sense to the British.
While the British Parliament was eager to bring an end to this abrogation of human rights the Barbados Parliament thought it made more commercial sense to insist on reparations for the end of chattel slavery and to implement a tenantry system in a country where they owned substantially all of the land. The call by the British Parliament to make land available to the newly emancipated people fell on deaf ears.
In the 1900s small business people suffered from over regulation under the Hawkers’ Registration Act. Apart from the annual registration, the payment of a fee and the presentation of a certificate of good character they were also restricted in how they could ply their trade. This regime was inapplicable to companies including foreign companies and plantations. It was deemed to be unlawful to sell in any “road, street, lane or alley “, a situation which limited the number of sites from which they could act as vendors.
The entrepreneurs of the time succeeded in their pursuit of wealth in spite of Parliament even though they were often relegated to the ownership of rab land – the land for which the powerful had no use.
More recently In the 2000s it was felt that new government policies precipitated the demise of the re-conditioned car business, which had seen a number of new entrepreneurs enter the market. It was through access to the Internet that Barbadians realised that they could buy better quality and cheaper cars on line.
Yes, there were questions of under-invoicing but remarkably the solution was to kill that industry – for Barbadians remain fervent about the death penalty. The reconditioned car business now remains largely amongst the few traditional car dealers in Barbados.
Those entrepreneurs died.
Our history demonstrates that the regulation of commerce is one of the most effective means of determining which class of people will have access to the wealth in a country.
And arguably legislation is one of the most powerful protectionist tools there is at the disposal of modern governments.
The issue to be addressed in 2016 is whether the regulation of UAVs will follow the same path of many other regulatory initiatives in Barbados where the early entrants who might have greater access to capital are protected by the Barbados Parliament or Cabinet in limiting the number of individuals who can actually participate in the market.
Inefficiencies and Corruption
Our undocumented history also shows how overregulation and inefficiency breeds corruption. The truth is that when systems function well little thought is given to offering a bribe. In some sectors the restraint of trade through overregulation has caused the bribery of government officials in order to access licenses and permits to become intrinsic to the sector.
This state of affairs has also created a high price for such permits and licences – the proceeds of which never find their way into Government coffers. Many of us fail to note in discussing the prosperity of those countries high in human or economic development that those countries also managed to minimise corruption. Corruption and small fledgling economies like that of Barbados do not go hand in hand.
Which historical path will we choose to create?
Benchmarking Domestic Regulation
When Barbados participated in the negotiation of Protocol II to the Treaty of Chaguaramas, the Free Trade Area of the Americas and the World Trade Organisation domestic regulation was always one of the most controversial issues on the agenda. Domestic regulation was the last barrier to free trade and the last protectionist tool in the armour of countries.
Thus Article VI of the General Agreement on Trade in Services at paragraph 4 while recognising the importance of regulating certain industries, also sets our criteria for determining whether regulation is reasonable:
The regulations must be based on objective and transparent criteria, such as competence and the ability to supply the service.
They should not be any more burdensome than necessary to ensure the quality of the service.
In the case of licensing procedures those procedures should not in themselves be a restriction on the supply of the service.
These principles are instructive and it is recommended that our policy formulation with respect to UAVs should take them into account.
Regional and international trade raises the question as to how foreign business people will be treated when they wish to bring UAVs into Barbados for their film and commercial shoots. Will they be allowed entry?
Barbados’ dependence on foreign investment has in some instances caused it to neglect the efficient workings of its bureaucracy. Foreign investors are often allowed to side step regulatory restrictions.
This was always a short-sighted and embarrassing approach taken by our Governments.
That approach was never going to work and this is now evidenced by Barbados’ extremely low ranking as a country in which to do business. Governments must do the hard work and make Barbados efficient for those who live in Barbados and investors will benefit automatically.
The newly emancipated people of Barbados were always viewed with suspicion in their efforts to engage in commerce. In setting up their wholesale and retail businesses they were often suspected to be fronts for trading in stolen goods. Perhaps that lingering suspicion remains with us in the emerging UAV sector.
We can only hope that as a nation we do not argue for risk taking and at the same time implement oppressive regulation. We can only hope that we do not continue to smother and then revive entrepreneurship, only to smother it again – it is a most inhumane and brutal form of torture.
Traditionally, women were seen as the victims of domestic violence and men were viewed as the perpetrators of such violence. However, it should be recognized and accepted that both men and women can be victims of domestic abuse. Recently in Barbados, the legislature amended the Domestic Violence (Protection Orders) Act, Cap. 130A (‘the principal Act’) to make provision for a comprehensive definition of the term domestic violence; to extend the classes of persons who are considered to be victims of domestic violence, among other things. The recently passed Domestic Violence (Protection Orders) (Amendment) Act, 2016 (‘the 2016 Act’) reforms the law on domestic violence and reflects the realities of a modern society by maintaining the use of gender neutral language.
The gender neutral language is notable in the given definitions of important terms. In the 2016 Act, victim is defined as “a person against whom an act of domestic violence is committed and includes a child”, and perpetrator is defined as “a person who commits an act of domestic violence”.
Previously, the principal Act did not define “domestic violence” or “domestic relationship”. The 2016 Act inserts the following definition of domestic violence: “the wilful infliction or threat of infliction of harm by one person in a domestic relationship upon another person in that relationship and includes child abuse, emotional abuse, financial abuse, physical abuse and sexual abuse”.
The 2016 Act defines “domestic relationship” as “the relationship between a perpetrator of domestic violence and victim who is a spouse, former spouse, child, dependant or other person who is considered to be a relative of the perpetrator by virtue of consanguinity or affinity and includes cohabitational and visiting relationships”.
Some men complain that police officers do not take seriously men’s complaints of domestic violence. Section 11A (1) of the principal Act as amended by the 2016 Act now provides that “a member of the Police Force shall respond to every complaint alleging domestic violence”. Men who allege that they are victims of domestic violence may therefore find solace in this provision.
Both men and women should note that, as mentioned above, the 2016 Act makes clear that domestic violence is not limited to physical or sexual abuse but extends to emotional abuse and financial abuse. The 2016 Act defines the above categories of domestic violence as follows:
Physical abuse means “any act or omission by a perpetrator which causes pain or injury to the body of a victim”;
Sexual abuse means “the performance by a perpetrator of a sexual act on a victim by the use of force, threats, fear, manipulation or guile and includes the actual or attempted commission of any of the offences stated in Part I of the Sexual Offences Act, Cap. 154”. The offences under Part I of the Sexual Offences Act include, among other things, rape, incest, buggery, indecent assault and serious indecency.
Emotional abuse means “any act by a perpetrator which causes psychological pain or injury to a victim and includes harassment, the use of threatening words or behaviour and withholding from a victim, access to the victim’s child, parent or guardian”;
Financial abuse means “the exercise of control by a perpetrator over a victim’s access to financial resources through coercion, deception or intimidation, the effect of which is to hinder the victim’s financial independence or ability to maintain a child or dependant or to ensure financial dependence on the perpetrator and includes exploitation of the victim’s financial resources and withholding the financial support necessary to maintain a victim, child or dependant”.
This piece of reformatory legislation is expected to aid members of the society to accept that men can also be victims of domestic abuse and assist in combatting the scourge of domestic violence.
In a previous article, we discussed whether a man can rape his wife in the Barbadian context in light of the Sexual Offences ActCAP 154 (‘the Act’) of the Laws of Barbados. Previously, the Act provided that the husband was only guilty of the offence of rape on his wife where there was in existence in relation to them a decree nisi of divorce; a separation order within the meaning of Section 2 of the Family Law Act; a separation agreement; or an order for the husband not to molest his wife or have sexual intercourse with her.
However, as recently as last night, the Senate of Barbados passed legislation creating the offence of marital rape. The Sexual Offences (Amendment) Act, 2016 is an Act amending the Sexual Offences Act CAP 154 to provide for the circumstances under which the offence of rape is committed by a husband against his wife. Consequently, it removes the restrictive circumstances under which the husband may commit the offence of rape on his wife.
Section 3 (4) of the Act now reads “A husband commits the offence of rape where he has sexual intercourse with his wife without her consent by force or fear, where he knows that she does not consent to the intercourse or is reckless as to whether she consents to the intercourse.”
Therefore, the Barbadian legislation now provides for the offence of marital rape, specifically as it relates to the husband committing the offence against his wife. This will be a welcomed change for some who believe that marriage should not erase the possibility of one partner raping the other. There are some others however who will be disturbed by this amendment since they are very devoted to traditional views. In my view, this new amendment should be embraced as it is definitely a step forward in the right direction.