Do you qualify as a spouse? Lessons from Albert Selby v Katrina Smith

court picThe deceased, Albert Selby, died without leaving a will and thus his estate is to be dealt with according to the Succession Act and the rules of intestacy which give priority to the deceased’s spouse, children then parents then siblings then nephews and nieces. The deceased was divorced, had no children and his parents died before him. The parties in the Albert Anthony Peter Selby v Katrina Smith [unreported] C.A. B’dos Civil Appeal No 14 of 2010; 2017-02-14 case are the brother of the deceased man and an unmarried woman with whom the deceased was cohabiting up until his death.

At the center of the case is the Succession Act of Barbados, particularly Section 2 which speaks to who is considered a spouse under the Act. Section 2 (3) and (4) of the Succession Act states

(3) For the purpose of this Act, reference to a “spouse” includes

  • A single woman who was living together with a single man as his wife for a period of not less than 5 years immediately preceding the date of his death;
  • A single man who was living together with a single woman as her husband for a period of not less than 5 years immediately preceding the date of her death.

(4) For the purposes of subsection 3, a reference to a single woman or a single man includes a reference to a widow or widower or to a woman or to a man who is divorced.

One of the two issues which the High Court was asked to determine was whether Ms. Smith is capable of being regarded in law as the deceased’s “spouse” for the purposes of the Succession Act, given that the deceased was a married man during a part of the five year period immediately preceding the date of his death. The High Court decided in favour of Ms. Smith and the deceased’s brother appealed to the Court of Appeal.

The deceased having been married at the start of the cohabitation with Ms. Smith and for a part of the 5 years immediately preceding his death, the issue which the Court of Appeal had to determine was who constitutes a single person for the purposes of Section 2 of the Succession Act.

The Court of Appeal handed down its decision last month and held that Mr. Selby though separated but not divorced from his wife for the requisite period of not less than five years immediately preceding the date of his death cannot be considered as single. The consequence of the Court of Appeal’s decision is that Ms. Smith, who regarded herself as Mr. Selby’s partner for several years cannot benefit from his estate on intestacy since she does not qualify as his spouse.

                                                                                                           – Kara-Je Kellman

On Harassment and Sexual Abuse: #LifeInLeggings

Over the last several days social media has been alight with personal accounts of sexual harassment, rape, sexual abuse and physical and verbal abuse which stemmed from the above atrocities. Persons, mostly women from the Caribbean, related to the world of social media some of their untold stories. What started as a flame has been the catalyst for many a conversation, discussion, vlog and even newspaper article. Many persons have now finally found the strength and courage to relay their experiences to their friends, associates, strangers – the world.

These posts have been a source of encouragement for some and a reminder to others that they are not alone in their experiences. It has also caused countless persons to reflect, do some retrospection and introspection and realise that they are or were a part of the problem. Many persons have apologised. Many have openly supported the victims and condemned the culprits. Society was also not left unscathed. We know that often at the heart of these issues is how we were conditioned and thus society was also thrown into the fire. In light of all of this, I have undertaken to set out below what the law offers to the victims of these inhumane, highly offensive acts.leggings

The Minor Offences Act Cap. 137 at Section 2 (1) says ‘ Any person who…

(c) wanders in the public streets or highways or in any place of public resort and behaves in a riotous or indecent manner;

(d) in any street, highway or public place accosts a passenger and offers to take him to the house or residence of a prostitute;

(e) loiters in any street highway or public place accosts a passenger and offers to take him to the house or residence of a prostitute;

(f) in any street, highway or public place, including a beach, without lawful authority or excuse (the proof whereof shall lie on the person accused), accosts, molests, threatens or harasses any person or follows him about;

commits an offence and is liable on conviction before a magistrate to a penalty of $2500 or to imprisonment for 2 years or both.’

Section 2(2) states that in this Section, ‘ “harass” means to

  • Use words, gestures and actions that annoy, alarm or abuse a person;
  • Insult, taunt or challenge a person in a manner likely to offend;
  • Use obscene and profane language to intimidate a person; or
  • Disturb or irritate especially by continued and repeated acts.’

A Sexual Harassment (Prevention) Bill is also in the works and is expected to afford greater protection to employees against sexual harassment in the workplace.

                                                                                                     – Kara-Je Kellman

Gun Violence in Barbados: 100 Days Jail Before Bail?

Recently, there have been discussions on whether a person charged with an offence under the Firearms Act Cap. 179 of Barbados should be automatically sent to jail for 100 days or some other specified period before bail is available to him.gun_violence-1-pic

In my view, a person charged with an offence should be treated as innocent until he admits guilt or until he is found guilty. To implement laws which mandate the automatic remand of a person who is charged with a firearm offence not only usurps the power of the presiding judicial officer but defeats a fundamental principle of the rule of law, that is, a person is innocent until proven guilty. The Bail Act already sets out the circumstances under which a judicial officer may deny bail. The Bail Act also states what factors the judge or magistrate may consider when deciding whether or not to grant bail.

In my opinion, Barbados should not follow the twin island Republic of Trinidad and Tobago and amend its Bail Act to mandate that a person charged with certain firearm offences is not eligible for bail or that such a person must spend a certain period on remand before he or she can be considered for bail. Of course, the Court should always seek to balance the interests of society with the interests of the accused person. If the person charged is fit for bail in accordance with the Bail Act, the judicial officer should exercise his discretion to grant him bail.

                                                                                                                   – Kara-Je Kellman

Unfair Dismissal Under The Employment Rights Act of Barbados

unfair-dismissal-picThe Employment Rights Act (“the Act”) gives an employee who has been continuously employed for at least one year, the right not to be unfairly dismissed. However, the Act also gives an employer the right to dismiss an employee for certain reasons under Section 29 of the Act or for some other substantial reason of a nature such as to justify the dismissal of the employee. Section 29 allows for the dismissal of an employee for reasons relating to the capability of the employee to do the work he was employed to do, the conduct of the employee or where the employee was redundant but subject to Section 31.

However, before dismissing an employee for a reason relating to his conduct or capability, the employer must inform the employee of the accusation against him and allow him an opportunity to state his case.

Whether or not the dismissal was unfair depends on whether the employer acted reasonably or unreasonably in treating the reason as a sufficient cause for dismissing the employee and whether the employer complied with the rules set out in Part A of the Fourth Schedule. These rules include but are not limited to the following: an employee must not be dismissed for his first breach of discipline unless it is gross misconduct; where a breach of discipline does not amount to gross misconduct, the employee should be warned and given a reasonable opportunity to make a correction before more stringent disciplinary action is taken.

The Act provides for many instances where an employee may be deemed to be unfairly dismissed. Some examples of these instances are: if the reason for the dismissal relates to his race, colour, gender, age, marital status, religion, political opinion or affiliation, national extraction, social origin or indigenous origin; if the reason for the dismissal is that: he refused to carry out an unlawful instruction from the employer;   he participated in trade union activities outside, or with the permission of the employer during, working hours; the employee is or was a disabled person in circumstances where the employer could reasonably have been expected to offer the employee alternative employment.

Where it is found that an employee was unfairly dismissed, the Employment Rights Tribunal which was established under the Act, has the power to order the reinstatement or re-engagement of the employee where the appropriate circumstances exist or to make an award of compensation. If either party is dissatisfied with the decision of the Tribunal, that party may appeal to the Court of Appeal.

                                                                                                                                          – Kara-Je Kellman

What Shanique Myrie v The State of Barbados Teaches Us About The Award of Damages Under The Revised Treaty of Chaguaramas Regime

damages pic 1

Shanique Myrie, a Jamaican national, had claimed that prior to deportation from Barbados to Jamaica in 2011, she was subjected to a body cavity search and detained in an unsanitary cell overnight. She had also claimed that she was discriminated against on the basis of her nationality. As a result, she asked the Caribbean Court of Justice (“the Court”) to make an Order for Barbados to pay special and punitive damages and an Order for the recovery of all her legal costs. The Court considered the matter applying the Revised Treaty of Chaguaramas (“the RTC”) and a 2007 Decision of the Heads of Government of CARICOM.

According to the Court, in order for a claim for damages to succeed, the Claimant must show that the RTC provision breached was intended to benefit her, the breach must be a serious one, the damages or loss should be substantial and there should be a causal link between the breach by the State and the loss or damages claimed.

The Court stated that under the RTC regime, the damages that can be awarded by the Court are compensatory. There is no place for exemplary or punitive damages before the Court in its original jurisdiction. The Court referred to the case of Trinidad Cement Limited TCL Guyana Incorporated v. The State of the Co-operative Republic of Guyana [2009] CCJ 1 (OJ) where this principle was established. The reason behind this is, the civil law jurisdictions in the Community do not allow for the award of exemplary damages and therefore this remedy cannot be a part of a legal structure that embraces both traditions.

The compensatory damages that can be awarded in international law are those for pecuniary loss or damage and non-pecuniary loss or damage. Pecuniary loss or damage means that such loss or damage can be calculated in terms of dollars and cents.  For example, you may claim that your bag which you bought for S50.00 was destroyed and therefore ask to be compensated $50.00 for the loss and damage. It follows that non-pecuniary loss or damage cannot be quantified in monetary terms. This type of compensation is usually for mental suffering, injury to feelings, humiliation, degradation, loss of social position or damage to reputation.

The Claimant claimed the sum of JA $112,000.00 for the airline ticket and medical expenses. This amount was not challenged by Barbados and the Court held that she was entitled to that amount for pecuniary damages.

The Court was of the view that the body cavity search and the conditions of her overnight detention constituted a very serious breach of her right to enter Barbados free of hassle and harassment. The Court then sought to determine whether this treatment was sufficiently related to the exercise of her right of entry. The Court found that the breach of the right encompassed all that took place at the airport in Barbados between the time of her arrival there and her deportation the following day.

The Court pointed out that it was not awarding damages for human or fundamental rights breaches; neither was it seeking to create an appropriate remedy for assault or unlawful detention since these are not causes of action actionable before the Court in its original jurisdiction. The Court stated that it was instead awarding damages for breach of the right to enter Community States without harassment and hassle. The Court was of the view that there must be a high award of damages for the breach since it was accompanied by serious circumstances.

Consequently, the Court ordered the State of Barbados to pay the Claimant Bds $2,240.00 (JA $112,000.00) for pecuniary damages and Bds $75,000.00 for non-pecuniary damages. The Court also ordered the State of Barbados to pay the Claimant’s legal costs.

                                                                                                                                         – Kara-Je Kellman

Shanique Myrie v. The State of Barbados: CARICOM Nationals’ Right of Entry Into Community States

In Shanique Myrie v. The State of Barbados [2013] CCJ 3, the Caribbean Court of Justice (“the Court”) sitting in its original jurisdiction was faced with an issue of major importance, that is, whether and to what extent CARICOM nationals have a right of free movement within the Caribbean Community.

The Claimant, Shanique Myrie who is a Jamaican national, arrived in Barbados on March 14 2011, was denied entry and the following day was deported to Jamaica. She brought an action against the State of Barbados in 2012 and asked the Court to make several Declarations and Orders including an order to pay special and punitive damages. The State of Jamaica joined the Claimant and was granted the status of Intervener by the Court.

The law applicable to this case is the Revised Treaty of Chaguaramas (“the RTC”) and the Decision of the Conference of Heads of Government of the Caribbean Community taken at their Twenty-Eighth Meeting (“the 2007 Conference Decision”).

Article 45 of the RTC states: Member States commit themselves to the goal of free movement of their nationals within the Community.

The 2007 Conference Decision reads:

“THE CONFERENCE

AGREED that all CARICOM nationals should be entitled to an automatic stay of six months upon arrival in order to enhance their sense that they belong to, and can move in the Caribbean Community, subject to the rights of Member States to refuse undesirable persons entry and to prevent persons from becoming a charge on public funds.”

After hearing submissions from Barbados and the Community, the Court held that the use of the word “agreed” and not “decided” is inconsequential and accordingly, the 2007 Conference Decision is effective.

The Court was then met with the question, whether article 240 of the RTC requires the 2007 Conference Decision to be enacted at the domestic level before it becomes binding on that particular Member State. Article 240 (1) and (2) states:- 1. Decisions of competent Organs taken under this Treaty shall be subject to the relevant constitutional procedures of the Member States before creating legally binding rights and obligations for nationals of such States. 2. The Member States undertake to act expeditiously to give effect to decisions of competent Organs and Bodies in their municipal law.

Under the Barbados Immigration Act (Section 3), there is a basic presumption that persons who are not citizens or permanent residents of Barbados have no legal right of entry into the country. However, the Court stated that as a result of the RTC and the 2007 Conference Decision, CARICOM nationals do have a right to enter Barbados and all other Member States. The Court further stated that it is the duty of every Member State to ensure that its domestic law reflects and endorses Community law.

However, it should be noted that there are two exceptions to the right of entry, namely, that the Community national is an undesirable person, and, it is evident that the Community national will become a charge on public funds. The Court noted that since these grounds of refusal of entry are exceptions to a fundamental principle of free movement, the premises on which the refusal is based must be interpreted narrowly and strictly. Further, the burden of proof lies on the Member State that seeks to invoke either ground for denying entry.

As it relates to undesirability, the Court held that no restrictions in the interests of public morals, national security and safety, and national health should be placed on the right of free entry of a CARICOM national unless that person presents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

In the event that a Member State denies entry to a CARICOM national, that State is required to give to the person reasons for the denial of entry promptly and in writing. The Court expressed the view that it would be reasonable to permit persons who have been refused entry the opportunity to contact an attorney or consular official of their country or a family member.

In light of the CCJ’s judgment in Shanique Myrie v The State of Barbados which highlighted relevant articles in the Revised Treaty of Chaguaramas and the 2007 Conference Decision, Community nationals have a right of entry into the territories of Member States and are entitled to an automatic stay of six months upon arrival. This definite right of entry may only be derogated from where the person is an undesirable or it is evident that the person will become a charge on public funds. The grounds for refusing entry to a CARICOM national must be narrowly and strictly interpreted.

                                                                                                                                         – Kara-Je Kellman

What were Barrow & Williams Thinking?

errol barrow and eric williamsBarbadians are warming to the idea that they should participate continually in decision making in their country when traditionally they have felt that their duty was to vote every five years and then go about their own business.

H.E. Errol W. Barrow & Dr. Eric E. Williams

There are many extra-constitutional means of doing this such as communicating with your Member of Parliament staging demonstrations, taking strike action, engaging in letter writing campaigns and sit-ins. Demonstrations and strike action are perhaps the tools most often used in Barbados.

Governments and some Ministers do take the engagement of the public seriously and would invite them to consult before developing and implementing any major policy initiative. This of course depends very much upon the temperament of the Minister, there being no legal requirement to consult.

Call for greater participation

Barbadians have made lukewarm calls for referenda on issues such as decoupling of Barbados from the United Kingdom. They have also suggested that they should be able to re-call parliamentarians.

Those who know how easy it is to manipulate political outcomes by those who have the greatest access to money have been skeptical. There is no doubt that an individual who had managed to win a seat could be unseated through recall by those within his or her own party or the opposition party through bribing the electors.

No provisions for referenda

All CARICOM countries currently have provisions for referenda in their Independence Constitutions except for Barbados and Trinidad & Tobago. Belize passed a Referendum Act in 1999.

Referenda experience

On June 23rd 2016 Barbadians saw a referendum play out before them in the United Kingdom where through a simple majority (52% to 48%) the people of the UK voted to leave the European Union.

This reflects the power of the media since the referendum in St. Vincent and the Grenadines did not engage Barbadians in the same manner.

Arnhim Eustace & Dr. Ralph Gonsalves

A constitutional referendum was held in Saint Vincent and the Grenadines on November 25th 2009.Voters were asked whether they approved of a new Constitution which would have replaced the Constitution in force since independence in 1979.The proposal included removal of the Queen of England as Head of State and the adoption of the Caribbean Court of Justice as the final court of appeal for that country. It was supported by only 43.13% of voters in the referendum, well short of the required two-thirds threshold.

In the Vincentian process a broad-based body had been established by the Government, Opposition and the Social Partners, however by the date of the vote commentators expressed the view that the process had been hijacked by partisan political interests.

Can we get it right?

drAlexisDr. Francis Alexis Q.C. in Changing Caribbean Constitutions expresses his views on referenda thus:

To be successful, a referendum for constitutional change requires that there be national consensus on proposed changes. So there has to be astute patriotic statesmanship on the part of leading opinion shapers, especially on the part of both Government and Opposition. The process might be helped if the people have choices    among separate bills; rather than being presented with a separate bill which leaves no room for choices. [1]

Dr. Francis Alexis Q.C.

Did the UK meet the standard

This is a standard which clearly was not met in the United Kingdom starting with the £350 million pounds which would not be available to the National Health Scheme. Constitutional lawyer at the University of Liverpool Professor Michael Dougan described the Leave Campaign as dishonesty on an industrial scale. And he provides examples.

Leavers had argued that EU legislation was adopted by the unelected commission which is untrue. Professor Dougan explained that all of it is adopted by the council which is represented by the elected governments. No doubt used as a scare tactic voters were told that there was a plan in the EU to create a European army which would absorb the UK army against the will of UK citizens. The Constitutional lawyer pointed out that A common European defence policy would require approval at the domestic level within the UK parliaments. Here is the full presentation:

MichaelDougan-1w

Professor Michael Dougan

https://www.facebook.com/UniversityofLiverpool/videos/1304633102897424/?pnref=story

Professor Dougan ultimately described that systematic dishonesty was used as a primary tool to win votes and as such has done untold damage to the British democracy. And he is right.

Can Barbados meet the standard?

Well what would one say about the Barbados democracy?

Barbadians are used to hearing lies from the political platform and no one seems outraged by them. They seem to accept that this is the nature of politics. It however creates apathy and disillusionment especially when the lies seem to come from both sides.

In order for the people to determine how they should vote in a referendum they must understand fully the implications of their vote. How many people actually understand how CARICOM works just as one might ask how many people understood how the EU works?

How many people understand functional cooperation and the carve outs negotiated internationally based on a single market?

Yet individuals frequently say that CARICOM is a waste of time without actually knowing.

It is accepted that members of the public whose main objective is to keep their household going would not have the time to read and internalize the Treaty of Chaguaramas as well as the various decisions of the organs of CARICOM.

We can do better

This is why Dr. Alexis’ statement is so critical. The integrity of the opinion shapers is critical.

Unless the individuals leading the campaigns are going to be honest then a referendum vote by an informed electorate would be almost impossible.

Given our history of “corned beef and biscuit” and “roti and rum” politics it would be difficult for Barbados and Trinidad & Tobago to ever reach that standard, even though  bribing electors is in breach of the election legislation.

Perhaps this is what HE Errol W. Barrow and Dr. Eric E. Williams understood when finalising the provisions of the Barbados and Trinidad & Tobago constitutions.

However theirs was a young democracy. CARICOM must work towards a more engaged and more informed electorate as our democracies mature.

Barbados celebrates 50 years of independence on November 30th, 2016.

[1] Alexis, Francis, Changing Caribbean Constitutions at paragraph 3.79

Lynette Eastmond