Eastmond Parris Law

Chapter 3 of the Treaty of Chaguaramas

2008-02-17T08:28:00.000-08:00

Chapter 3 of the Treaty of Chaguaramas is considered to be central to the building out of the CARICOM Single Market and Economy and was therefore accorded priority in terms of implementation. The Chapter in essence provides for the liberation of the economies of the region. It therefore covers all activities with the exception of Government services that are neither produced on a commercial basis nor in competition with some economic enterprise. For example there are no specific member states obligations with respect to central banking, social security or national security.

The Nationals of the Community are the beneficiaries under the agreement. This includes both individuals and legal entities such as companies.

The Chapter seeks to remove restrictions that exist with respect to the right to establish businesses, the provision of services, the movement of people and the movement of capital within the community. Upon the signing of the Revised Treaty there were to be no new restrictions imposed by the Governments of the region. Further Chapter 3 creates a comprehensive framework by addressing all matters central to the effective functioning of a single market including the coordination of macro-economic polices.

While there is a broad mandate with respect to the movement of people this process has been a gradual one which started with the movement of categories of individuals such as university graduates, media workers, artists and sportspersons. It is expected that these categories will be expanded. The Chapter also allows for anyone carrying on a business including self-employed people to carry on their business in the region.

There are also provisions that are facilitating in nature, for example the requirement that members should put measures in place to establish accreditation bodies. Barbados, Trinidad & Tobago and Jamaica have started this process. The procedure for the notification and removal of these restrictions was through the agreement of a programme. During this process Member States were required to take into consideration the special needs of the less developed states. This programme has already been agreed to by Member States and anticipates the removal of substantially all restrictions. Ultimately the region is working towards:

 Elimination of the requirement for passports
 Elimination of the requirement for work permits
 Establishment of a mechanism for certifying and establishing equivalency of degrees
 Harmonization and transferability of social security benefits.

There are exceptions to these general provisions. They arise with respect to hardship, measures to safeguard balance of payments and the retention of monopolies on the grounds of public policy. Members may also decide that certain financial services should not be subject to discipline under the Chapter.

There is however by implication an exception with respect to exchange controls, alien landholdings and the movement of people which will be addressed over the long term. It should be noted that Montserrat has utilised its right to a waiver with respect to the implementation of the obligations.

Companies Act Chapter 308

2008-02-03T12:18:00.000-08:00

The Companies Act of Barbados is a piece of legislation passed in 1982 with several subsequent amendments to keep pace with corporate developments. Essentially anyone can incorporate a business. The person must be over 18, must be of sound mind and must be solvent. The Corporate Affairs and Intellectual Property Office is the government agency responsible for the administration of the Act and therefore is the office through which documents can be sourced and filed www.caipo.org.bb . Generally speaking the word “limited”, “corporation” or “incorporated or the abbreviation “ltd.”, “corp.” or “inc.” must be a part of the name of every company.

Owning a Company
In most cases a company has the capacity, the rights, powers and privileges of an individual. Shares are issued in order to designate ownership in a company. The Act does not allow for the issue of bearer shares. The return on investing in the shares of a company is made through the payment of dividends. The payment of a dividend must not however, result in the company not being able to meet its liabilities; neither must the capital of the company be eroded.

Directors and Officers
The Directors of a company are appointed by the shareholders. Shareholders can also be directors. The Directors exercise the power of the company. Directors can be found personally liable for certain acts of the company. Directors must take their responsibilities seriously and avoid conflicts of interest. Where they exist they should be declared. Officers may be appointed by the Directors.

Every director and officer of a company is required to act honestly and in good faith with a view to the best interests of the company. They must exercise the care, diligence and skill of a reasonably prudent person.

Meetings
There must be an Annual General Meeting of the Company, not later than 18 months after the company comes into existence and not later than 15 months after the last AGM. Directors may hold meetings as determined by the by-laws of the company or as they see fit that would allow them to exercise their duty in the best interests of the company.

There are a number of obligations that must be met at the AGM:
1. Comparative financial statements duly signed by a Director must be presented
2. Audited Financial Statements must be presented if the company is a public company or if the gross assets or revenue exceeds $1,000,000
3. An Auditor is to be appointed where there is a requirement for audited Financial Statement.
4. Directors are appointed.

Dissolution
If you no longer wish to have the company, it can be dissolved by a special resolution of the shareholders and by filing the required documents with the corporate registry. If the company is bankrupt the insolvency legislation would apply.

The Catastrophe Fund Act, 2007

2008-01-31T12:49:00.000-08:00

As many of you know the entire Caribbean region is vulnerable to natural disasters, especially hurricanes. Barbados itself has not felt the full brunt of a hurricane in several years. However the housing stock of the country, especially that comprising chattel houses does suffer when the high winds and heavy rains from weather systems brush this country. In these circumstances the Government is usually called upon by the public to provide support to families that have suffered loss or damage to their homes. In order to address this matter in a more efficient and transparent fashion the Owen Arthur piloted through Parliament legislation for the establishment of a Catastrophe Fund.

Purpose of the Fund
According to the insurance industry, the susceptibility of the region to catastrophes contributes to relatively high re-insurance premiums that are then passed on to consumers. The purpose of the Fund is to provide financial assistance to low income earners who own and occupy chattel houses. In setting up this Catastrophe Fund there are some individuals that might question the propriety of this initiative. Questions might be raised as to whether individuals should not have the responsibility of insuring their own premises.

The truth is that in the aftermath of a disaster the public as a whole does not wish to enquire into the circumstances of the victims and rather expresses the view that Government should take substantial responsibility for reinstating the homes of Barbadian families. In addition some of the houses that will fall under the purview of this new legislation are not considered to be insurable by insurance companies in Barbados. Finally sometimes individuals live in circumstances that the payment of insurance premiums might in fact, be a luxury.

Criteria for Assistance
The provision of this assistance is however circumscribed by certain criteria:
1. There must have been a catastrophe and that catastrophe could have been caused by fire, earthquake, storm, hurricane, flooding, a storm or sea surge, lightning, or by some other force of nature.
2. The house must have been damaged or destroyed by a catastrophe and must be valued at under $125, 000.
3. The recipient must earn less that $22,500 annually.
4. The individual must both own and occupy the house.
5. The house must be a chattel house, which means a house where 75% or more of that house is made of wood.
It should be noted however that agencies through which Government usually provides assistance will remain operational so that assistance can be provided in deserving cases where the criteria can not be fully met. For example a pensioner that owns a house valued in excess of $125, 000 but the level of his income and family assistance does not allow him to effect the necessary repairs.

The Fund
For a period of five years a sum of $2.5 million will be voted by the Parliament. In addition, monthly contributions will be made through the National Insurance Scheme. The contribution is 0.1% of the earnings of both employed and self employed people. It will also consist of amounts realised by investment proceeds and proceeds from the operation of the fund. The National Insurance Office will be responsible for the management and investment of the fund.

The Committee
The legislation also proposes a committee that is responsible for the consideration, the assessment of claims and the issue of grants. The members are:
• The Supervisor of Insurance
• The Director of National Insurance
• The Chief Fire Officer
• The Accountant General
• Two other persons appointed by the Minister of Finance

All of this is subject to the appropriate governance principles including proper accounting, auditing and reporting requirements. Within the legislation it is clear that this BLP administration, in keeping with good governance principles is making every effort to ensure transparency and that this initiative makes contact with the genuine cases. This innovative piece of legislation is expected to be debated in Parliament during the month of February.

The Public Accounts Committee Act, 2003

2008-01-31T03:38:00.000-08:00

This piece of legislation came into effect on July 14, 2003 and creates by legislation the Public Accounts Committee.

Objects and Reasons
The objects and reasons as set out in the Act are as follows:

a. The Establishment of a Joint Committee of Public Accounts consisting of members of the Government and the Opposition who must be from both Houses;
b. The number of members is 13;
c. Its duties are to extend to the examination of the audited financial statements of all statutory corporations as well as entities owned or controlled by the Crown.

The Committee
The 13 member Committee is made up of 6 members of the Senate appointed from that House and 7 must from the House of Assembly likewise appointed by that House.

The Chairman of the Committee must be the Leader of the Opposition. The Deputy Chairman must be appointed by the Committee and holds office at the pleasure of the Committee. In the absence of the Chairman and the Deputy Chairman the Committee may appoint a member that does not support the Government. The Committee must meet at least once within every six months and may also meet at such other times as decided by resolution by the Committee. Five members of the Committee constitute a Quorum. Decisions are made by a majority of members. The Committee may meet even when Parliament is parogued.

The Duties of the Committee

• The Duty to Examine Reports
The duties of the Committee are to examine the audited financial statements of government authorities and intergovernmental bodies. It should be noted that in this sense an intergovernmental body means a body that is established by the provisions of an agreement between the Barbados Government and the government of another country. This also applies to a body established between Barbados and an international organisation.

The Committee has a duty to examine the audited financial statements of all statutory corporations. It may also examine entities in which the Crown owns not less than 50% of the share capital or controls at least 50% of the voting rights in the entity. The Committee also has the power to examine all reports of the Auditor-General, including the results of performance audits that are tabled in each House of Parliament.

The Committee has a duty to consider the reports of an independent auditor on the operations of the office of the Auditor General on any other Government Authority to which the Act applies.

• The Duty to Report to the Houses of Parliament
The Committee can report to the Houses of Parliament on any items or matters in the reports that come before it. It can also report on any circumstances connected with them that it thinks should be drawn to the attention of Parliament.

The Committee also has a duty to report to both Houses of Parliament any alteration that the Committee thinks is desirable with respect to:

1. the form of public accounts
2. the method of keeping public accounts
3. the mode of receipt, control, issue or payment of public moneys

In the case where the either of the Houses of Parliament asks for a matter to be enquired into then the Committee has a duty to report to the House on that question.

When considering the Office of the Auditor-General as discussed below or any other matter relating to the Auditor-General the Committee may draw any matter to the attention of Parliamen. The Committee may also report to Parliament on the performance of the office of the Auditor-General at any time.

Finally the Committee has a duty to report on the performance of its duties in respect of each financial year and lay the report in the House of Parliament.

• Duty to Consider the Operations of the Office of the Auditor General
The Committee can consider the operations of the office of the Auditor-General. This includes the resources at the disposal of the Office of the Auditor General, including matters such as funding and its retrieval and reporting capabilities.

• Other Duties
There is then also a general provision which requires the Committee to carry out all duties given to the Committee under the Act by any other law or by joint Standing Orders approved by both Houses of Parliament.

• Activities of the Auditor General and Independent Auditor
It is stated expressly that nothing in the section should be interpreted as authorising the committee to direct the activities of the Auditor-General or the Independent Auditor.

Public Sittings
Generally speaking all evidence must be taken in public. The exception is where in the opinion of the Committee the matter is a secret or confidential one and the witness requests that the evidence should be given in private. In such circumstances the evidence can not be disclosed or published.

Offences and Penalties
The fine for giving false evidence is $25, 000 or imprisonment for a term of two years or both. A similar penalty applies to persons who contravene the following provisions:

1. Failing to obey a summons
2. Preventing a witness from giving evidence
3. Refusal to be sworn in as a witness
4. Causing any violence, damage, loss or disadvantage to a person giving evidence

Computer Misuse Act, 2004

2008-01-31T03:06:00.000-08:00

This technology legislation comes some time after the passage of the Electronic Transactions Act in 2001. The legislation is necessary because of the increasing use of computers in Barbados and the need to provide adequate protection for electronic information residing on computer systems. The legislation is intended to penalise persons that misuse computers, computer systems and information contained in those systems. The legislation at its core deals with (i) unauthorised access by persons and (ii) abuse by persons that do have authorised access.

Background

This is an elaboration of the criminal law in Barbados to take into account the advances in science and technology. In the United Kingdom for example an attempt was made by lawyers to use existing pieces of legislation such as those dealing with criminal damages and fraud to address the issues in this Act. Eventually it became clear that existing legislation was not enough to cover all the crimes involved in computer hacking.

In an English case individuals, who used unauthorised passwords to access mailboxes without permission were tried under legislation for forgery and counterfeiting. The decision was overturned on appeal to the House of Lords and the prosecution roundly rebuked for trying to “force the facts of the present case into language of an Act not designed to fit them.”

In Barbados there is a clear need to ensure that the appropriate safeguards are put in place for the many existing computers and computer systems. The Owen Arthur Administration had been enthusiastic about embracing information technology. There are big projects such as the edutech programme, the Smart stream programme to keep account of revenues and expenditures in the public sector, the aseycuda system in the Customs Department, the computerisation of the land tax department, the National insurance department and in addition many government agencies have websites so the people have easier access to web information. Parliament has its own website. Information Communications Technology Policy has now been developed which will encourage the wide use of Internets and Intranets within organisations

The Offenders

 In the definition section there has been no attempt to define computer. It was felt that with the brisk change in technology changes, it would be better to frame the Act by its objectives.
 The legislation addresses both acts and failure to act by persons.
 It covers persons residing in Barbados as well as persons aboard a ship or aircraft registered in Barbados or by a person who is outside of Barbados if the person is a national of Barbados and the offence would also be one in the country where the offence was committed. The Act therefore seeks to ensure that the persons involved in hacking inside Barbados and from outside Barbados are caught by the legislation.

Offenders include those who are not entitled to access the computer information, those who do not have permission to access the information, persons that have exceeded their rights to access the information and persons that have without authority received information.

The Offences

There are several offences that have been identified in the legislation concerning unauthorised access or abuse of access to information including:

 gaining access to the whole or any part of a computer system
 causing a computer programme be executed
 using a programme to gain access to data
 copying or moving a programme or data
 hindering the proper functioning of a computer system by, for example, preventing the supply of electricity to the computer, corrupting the computer system or adding, deleting or altering computer data
 interfering with a computer system or a person using a computer system
 intercepting by technical means transmissions or information from a computer system

Recipients are also guilty of an offence

 If a person who is not entitled to do so is given access to data or a programme, that recipient is guilty of an offence.
 In addition where the person is authorised to receive information but it comes from an unauthorised source that person is also guilty of an offence.

Restricted Computer Systems

There are special provisions and stiffer penalties for what are considered to be “restricted computer systems”. These systems are considered to be critical to the security of the country. Some of the institutions that would have restricted computer systems are:

o The Archives Department
o The Barbados Defence Force
o The Electoral and Boundaries Commission
o The Financial Intelligence Unit
o The Queen Elizabeth Hospital
o The Forensic Laboratory
o The Inland Revenue Department
o The Royal Barbados Police Force
o The Licensing Authority
o The National Library Service
o Entities providing utility services

 The penalty for simple unauthorised access is $50, 000 or five years imprisonment,
 Accessing the system with the intent to commit an offence such as destroying or manipulating data results in a fine of $100,000 or seven years imprisonment. It is however a complete defence that access was inadvertent, with no intention of committing an offence.

Child Pornography

The Computer Misuse Act addresses child pornography specifically and makes it an offence to publish, produce or possess pornography on a computer system or a data storage medium for the purpose of publication. This does not only include representations of minors but individuals that look like minors.

Malicious Communications

The Act further addresses those instances where individuals send messages, letters or other communications which cause the recipient or others, annoyance, inconvenience, distress or anxiety. The letters that are covered are those that are indecent, obscene, constitute a threat or are menacing in character to the recipient or others. For example we have already had a situation in Barbados where a relationship between a man and a woman had broken down and the man "cut and paste" the head of the lady in question on the naked body of a woman and e-mailed it to her workmates. This can now be dealt with under the legislation.

Enforcement

 The police are given the necessary powers of search and seizure through the Courts.
 The Act also provides that assistance can be rendered by the person who possesses or is in control of the system.
 The standard used with respect to the offences is whether the person knowingly or recklessly and without lawful justification or excuse committed the particular offence.
 Fines lie between $25, 000 and $200,000, while imprisonment of 2 years to 7 years is also possible.