By Dr. Trevor A. Carmichael, Q.C., Attorney-at-Law, Chancery Chambers.
Abe Fortas in his seminal 1968 work Concerning Dissent and Civil Disobedience reminds us that the “story of man is the history, first of the acceptance and imposition of restraints necessary to permit communal life; and, second, of the emancipation of the individual within that system of necessary restraints”. This view summarizes the all encompassing nature of law, and highlights the way in which it is structurally grounded in the society of its operation. Barbados, since its settlement in 1625, has manifested a legal system of resilience and flexibility which contributes positively to the country’s image.
The earliest published collection of the Acts of Barbados was undertaken by John Jennings, Clerk of the House of Assembly. Printed and published in London in 1654, the book was approximately 180 pages. Even at this time, there existed a considerable degree of local legislative autonomy. An act for compiling the laws was passed in 1715 but the untimely death of Richard Carter, the Attorney General, frustrated this effort. (He had been assigned the job for a princely thousand pounds.) A collection of the statute law for the 1648-1717 period was eventually published and as a supplementary effort, there was a collection for the period 1717-1738. The important work of Richard Hall, senior and junior, was published in 1764 in London, consisting of 624 pages, with a dedication to the Governor, Council and Assembly. This legislative work highlighted the level of maturity of legislative development and reporting within Barbados as early as the eighteenth century.
Law making and publication has steadily continued to the present day, with vast strides made in legislation with commercial, family labour and socially developmental components. An important feature of modern, post-independence legislation has been the need for clear and simple drafting with regulations capable of easy and effective use. This feature is not only necessary in areas of social legislation, but also in legislation which pertains to charities and companies. For in the case of legislation for development purposes the key to action is ease of utility and understanding. The modern Companies Act of 1982 and accompanying Regulations were therefore introduced to assist in Barbados’ domestic and international business development without institutional or formal impediment.
The Shipping legislation represented an excellent example of maintaining state of the art procedures. For by accepting the principle of a Barbados Ships Registry located outside of Barbados, namely, in the United Kingdom, with the scope of its satellite subregistries, it recognized that there is no loss of sovereignty or respect in a business milieu where such transactions are more easily attracted to a more established financial centre, and where the norms of the business accept such a location as not only acceptable, but highly desirable. The business and development orientation in post-independence legislation is also reflected in the intellectual property legislation of trademarks and patents introduced in 1981. Legislation was also created to support the important tourism industry by making Barbados more attractive to internationally mobile capital that was ready and able to invest in the hotel and resort sector of the economy.
While previous mention was made of the Companies legislation in its traditional business development mode, it is also useful to consider the capacity it generates for the formation of non-profit or charitable entities. It is now part of the conventional wisdom that charities can play an important role in national development, and policy makers are therefore paying more attention to the introduction of suitable legislation which facilitates this role. Indeed, the rate of non-profit company formation will continue to increase as international tax planners and philanthropic lawyers channel more of the world’s wealth to those less fortunate. To the credit of the Barbados legislation, the cost of incorporating a nonprofit company is less than in the case of a company. The Charities Act was introduced in 1979 and has now been supplemented by greatly overhauled and modernized legislation which allows any society, trust or charitable undertaking to benefit from its provisions and its ease of operation.
The Barbadian legislative ethos has also been imbedded with a recognition that the important interconnection of domestic laws with international conventions cannot be ignored. In this regard, the jurisdiction has made significant efforts to keep in step with international conventions, particularly those with an environmental or business component. Barbados has long been a signatory to the New York Convention of Arbitral Awards, with its favourable enforcement provisions for signatories. Furthermore, it is also a signatory to the Hague Convention which abolishes the requirement of legislation for foreign public documents. Indeed, the consequential ability to use the Apostille (a French word meaning “certification”) has allowed Barbados to freely take part in the document exchange which is now commonplace in contemporary international commercial life.
De Montesquieu, in L’Espirit des Lois, takes an all encompassing view of the law, noting that laws in their most general signification are the necessary relations arising from the nature of things. Barbados’ development, grounded in a sense of solid self worth, has been punctuated by a strong respect for the law, and a keen recognition of its relevance to development. Indeed, it is no surprise, that early in its immediate post settlement experience, its “breaking” of the law was to protect the higher ideals of justice and equity as espoused in the Declaration of Lord Willoughby and the Legislature, against the British Parliament:
“And we cannot think, that there are many amongst us, who are so simple, and so unworthily minded that they would not rather chose a noble death, than forsake their ould liberties and privileges”.