The Jeff Cumberbatch Column – Whose Call is it, Anyway?

Jeff Cumberbatch – Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill

One aspect of current popular discussion in Barbados focuses on the moral and political legitimacy of the Prime Minister’s stated intention to have his administration go down to the figurative wire with reference to its tenure in that role. By this, I am given to understand that he proposes to extend the life of his government for as long as may be constitutionally permissible. Some, anxiously anticipating a change of administration, have sought to assert that this would be a clear breach of convention, although there is a patent absence of clarity in identifying the precise convention that he is alleged to be infringing thereby.

To be sure, a convention is built on a long accepted practice, but it is difficult to deduce any inveterate practice with respect to the calling of a general election in Barbados other than that these are usually called when the Prime Minister of the day decides that the time is optimal for his party’s chances thereat.

It appears to be popularly assumed that the date of a general election is always exclusively within the purview of the Prime Minister’s discretion. However, it is submitted that a close reading of the Constitutional text might arguably suggest otherwise.

According to section 61(3) of the supreme law:

Subject to the provisions of subsection (4), Parliament, unless sooner dissolved, shall continue for five years from the date of its first sitting after any dissolution and shall then stand dissolved.

This provision clearly recognizes that Parliament may be dissolved before its otherwise automatic demise.

Ordinarily, the Prime Minister advising or instructing the Governor General to dissolve Parliament would effect this prior dissolution. This scenario is the subject of section 61(2):

The Governor-General, acting in accordance with the advice of the Prime Minister, may at any time by proclamation dissolve Parliament …

It is also usual, though perhaps not conventional in the strict sense, for the Prime Minister on such an occasion further to instruct the Governor General to issue writs for a general election. However, there is no provision that expressly requires him to do so. Pertinent in this regard is section 62(1) that reads as follows-

After every dissolution of Parliament, the Governor-General shall issue writs for a general election of members of the House of Assembly returnable within ninety days from the dissolution.

A plain reading of this subsection and its juxtaposition to the previous subsection would suggest at first blush that, on a dissolution of Parliament, the Governor General has an absolute discretion as to the issuance and returnability of the writs for the elections in the thirty constituencies.

However, the Constitution also provides at section 32(1) that ordinarily the Governor General “shall act in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet in the exercise of his functions other than in certain specified instances including those where he or she is directed to exercise any function “on or in accordance with the recommendations or advice of, or with the concurrence of, or after consultation with, any person or authority other than the Cabinet”; and in respect of “any function which is expressed (in whatever terms) to be exercisable by him in his discretion”.

In addition, the next subsection [32 (2)] immediately and expressly excludes certain functions from the application of section 32(1):

Subsection (1) shall not apply to the functions conferred upon the Governor-General by the following provisions of this Constitution, that is to say-

(a)section 66(2) (which requires the Governor-General to revoke the appointment of the Prime Minister in certain circumstances);

(b) the proviso to section 61(2)which requires the Governor General to dissolve Parliament in certain circumstances);and

(c) section 84(4) (which requires the Governor-General to remove a Judge from office in certain circumstances).

In none of these specified cases, therefore, nor in those that are more generally stated in section 32 (1), would the Governor General be obliged to act in accordance with the advice of a member of the Cabinet as subsection (1) mandates.

The questions therefore beg asking, did the framers of the Constitution intend that a Prime Minister should be the sole authority in respect of the timing of elections in all circumstances of dissolution? Or does that exclusivity apply only in a case where Parliament has been dissolved by Prime Ministerial fiat? And does that imply therefore that if the House automatically dissolves itself through the effluxion of time, as in the current case, that the Governor General then assumes sole discretion as to the election date?

Of course, the answers to these questions turn on the construction of the various Constitutional provisions. Patently, the function under current consideration in section 62 (1) is not among those expressly excluded from the purview of section 32 (1) by section 32 (2), so that if one seeks to argue that the Governor General is to have any discretion at all in the matter, this must be premised on the more general exclusions in section 32 (1) itself. These are first, “where he is directed to exercise any function on or in accordance with the recommendations or advice of, or with the concurrence of, or after consultation with, any person or authority other than the Cabinet”, and, second, “any function that is expressed (in whatever terms) to be exercisable by him in his discretion”.

Plainly, the first category is not relevant here, but the second does demand our further inquiry. While it is easily discernible that any function clearly expressed to be exercisable by the Governor General in his or her discretion would be covered by this provision, it also purports to include beyond this any other form of expression of that intention [“in whatever terms”].

The issue then arises; is a provision cast in the following terms “After every dissolution of Parliament, the Governor-General shall issue writs for a general election of members of the House of Assembly returnable within ninety days from the dissolution” correctly to be regarded as a form of expression in whatever terms that confers a function exercisable by the Governor General in his or her discretion? If it may be so regarded, then the deduction is that the Governor General has the discretion as to the date of the general election once Parliament stands dissolved by effluxion of time, though perhaps not where this has been effected by prime ministerial fiat. The distinction is indeed a nice one.

It is conceded that this interpretation has never been observed or even suggested in our fifty plus years of written constitutional governance. Nor is it likely to find favour with any political operatives now. For one, it flies in the face of the assumed convention of unlimited prime ministerial discretion in most matters, thereby disrupting accepted practice; for another, it has not yet been to my best knowledge the subject matter of any judicial determination and is thus likely to be treated as mere academic opinion and, third, it is likely to result at the current time in partisan division, based not on the validity of an alternative construction of the Constitutional text but on precisely that; partisan consideration.

Our regrettable lack of clarity in this matter is to be contrasted with the drafting precision of the provision in section 69 (1) of the Trinidad & Tobago 1976 Republican Constitution –“A general election of members of the House of Representatives shall be held at such time within three months after every dissolution of Parliament as the President, acting in accordance with the advice of the Prime Minister, shall appoint.” [Added emphasis].

96 comments

  • de pedantic Dribbler

    @Miller…you are jesting, right! You dissect the complexities of religious dogma with a clarity that impresses but here you assault the simple wording of our constitutional doc so recklessly!

    HOW can the Queen direct anything here in BIM without the direct input of our PM?

    Do you actually believe that the prideful men who took us to independence (throughout the region) would allow themselves to be directed or controlled (beyond the current fancy ceremony) by an external white person! REALLY.

    This debate is obviously a Lenten period attack on common sense so I hope the entire blog can say …stop talking and tempting foolishness, do!

    Like

  • Frustrated Businessman: Animal Farm sequel playing out in Bim.

    What is so desperate about this entire ‘intervention’ debate is the fact that anyone has even considered that our gov’t and national leadership would be such abject failures that we would be contemplating going cap-in-hand to anyone for help.

    There was never any chance of economic recovery under Fumble’s Fools but I doubt anyone ever considered they would sink to this level of national frustration, desperation and international embarrassment.

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  • millertheanunnaki

    @ Well, Well March 26, 2018 at 3:40 PM #

    You must- at the end of the dark day- take your ‘black’ hat off to the white people especially the British guided by the bullshittery of the English.

    How can a former insignificant segment of human kind move from being hungry cave dwellers to conquer a whole race of people from the Mother continent in such a short period in human history?

    Blacks can be easily tricked into giving up their rights to Mother Nature’s blessings by giving them false gods (created completely in contrast to their own image) to worship and making easy accessibility to artificially-created food to turn them into spiritual and physical zombies.

    Don’t be surprised if the Chinese resort to the opening of churches offering free food to laced with mind-altering substances to attract stupid blacks into their web of conquest to secure a constant supply of much needed minerals and metals needed to fuel and support their ultimate goal of world economic domination and by extension political dictatorship never seen since Genghis Khan.

    Easy access to the riches of Africa including the enslavement of its naïve people is what gave the European especially the British the opportunity to dominate the known world. The Chinese are just following suit in using their turn at the African trough of pillage and plunder.

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  • @de pedantic Dribbler, Jeff, and others

    The Barbados Constitution states the Govenor General, as sole authority, will issue the Election writs, in my ignorant understating the Barbados Govenor General is acting for Her Magesty the Queen of the Commonwealth Nations. And some of you suposidly educated individuals think she has no authority, my understanding of educated and morons must be questioned.

    If Barbados wants to sit on the potty to shit then follow the established doctorine, otherwise go the way of a Republic, Dictatorship, Communist state etc. and stop the BLACK wineing.

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  • Wily Coyote March 26, 2018 at 4:18 PM #

    You are not alone. I have said before, there used to be a subject which school children took at O an A level called British Constitution, which taught us about the way we were governed. Ten the wise guys changed the A level to Government and Politics, which changed everything. I believe they have now dropped the O level.
    But even many trained lawyers do no understand the British Constitution, the Westminster model which is much talked about.
    .
    @Wily Coyote March 26, 2018 at 4:18 PM # Just think: in the UK, parliament rules. Not the Queen, not .the prime minister, not the Cabinet.

    You at e t alking about Henry the 8th powers. That is history.

    .

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  • “How can a former insignificant segment of human kind move from being hungry cave dwellers to conquer a whole race of people from the Mother continent in such a short period in human history?”

    black people are the easiest race to be fooled into anything, as long as it’s someone who does not look like them feeding them bullshit and telling them it’s gateau.

    the real sin on their own souls will be if they allow themselves to be again controlled by these modern day halfwitted british, allow themselves to be convinced that they should be used as modern day slaves to enrich UK…if they allow that, they will be more than deserving.

    Chinese dont linger if they are not wanted, they are not as savage as the British, but African leaders are still to weak mentally.

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  • millertheanunnaki

    @ de pedantic Dribbler March 26, 2018 at 3:57 PM

    On the face of it, you are reading more into my naïvely comical critique of the Barbados Constitution (the Supreme Law of the Bajan Land) than was implied.

    Would you say that the ordinary man- not on the Clapham omnibus but on the ZR to Oistins- would interpret the Constitution, first drafted at that auspicious “Ye Old Mermaid Inn”, as it reads and not come to the same’ expectant’ position that the supremacy of power lies within the hands of Her Majesty the real white Queen Lizzy or future replacement King Clown Charlie or Baldie Willie Winkie?

    So why not put aside the ‘English inherited’ hypocrisy and make a man or woman out of the political adolescent called Barbados?

    Why not declare Barbados a republic and tell the Brits to ‘F’ off for real, sewage and all?

    We can bet you dare not try that shit of a cry for total and undisputedly legal political independence when too many of your tourism white eggs are hatching in that British royal basket to which the little England’s umbilical cord could never be totally severed; pips, crowns, pomp, pageantry and royal paraphernalia including the award of medals for political party support and for being good knights and dames from St. Andrew and St. George and ‘hardworking’ party yard-fowls.

    Try removing Nelson to the bottom of the Careenage like Cecil Rhodes statue and see how the same Bajans would cut your political throat faster than you can say “Jack Robinson” is a son of a member of the Order of Independence for Scotland.

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  • de pedantic Dribbler

    Phew, @Milller, glad to know you were waxing comically!

    I have always looked with amusement at the Republicanism debate because in reality all we would be doing is changing the ceremonial pomp and pageantry from an association with your Harry Kin Royal Hotshots to a locally incestuous association of our royal hotshots (also known as RHs)!

    We have the best of both worlds as you suggest..absolute Independence but yet perfectly desirable interdependence as needed with the Lil England claim to fame!

    @Cayote, if your” understating” that “the Barbados Govenor General is acting for Her Magesty the Queen of the Commonwealth Nations” means that she actually has any direct authority on matters of state here in Barbados then I am pleased as punch to be considered one of the local “morons” for my opposite interpretation.

    Don’t you think it startlingly amazement that Queen Elizabeth has ABSOLUTELY no DIRECT control of the British Forces or ANY other such operational UK state institution yet you are making a case (seriously too) that she has such control in Bdos!

    SMH!

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  • there is a price to be paid for living in dead slave masters shadows, kowtowing to those same dead people’s descendants and REFUSING to become fully independent and self sufficient, the island is paying that price now.

    either move away from those blighted shadows or continue to regress.

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  • Wily can see the point that Jeff, Caswell and others are making with respect as to who/whom under the Constitution has the responsibility to call the election when parliament is dissolved by time and not the prime minister. As the intent of the Constitutional authors is unknown, then this issue may indeed need resolution by a Constitution Court. The question is who/whom would initiate this constitutional review and the procedures thus involved if the government of the day is already dissolved. Could someone from the general populace initiate such a review.

    Questions posed are outside Wilys knowledge base but I’m sure there are some BU Constitutional attourneys that maybe able to present some ideas.

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  • Ah, the wonderful Republican debate raises it head again along with the soon to follow “Remove Nelson” chorus. This brings the sinking of the Titanic to mind. Were there Barbadians on board for that fateful voyage I can just imagine them discussing if to approach the captain and make an offer for the furniture or approach the bar to enquirer if the Hapoy Hour was still being honored or even demanding a refund of their passage. Really people? This ship is sinking rapidly and we are here debating Republican status?

    Our generously nostrilled jackass has rushed legislation through Parliament that gives the police unfettered powers of arrest and then
    for reasons known only to his anus allows Parliament to dissolve without setting an election date. There is a vast difference between “lawfull”, “decent” and “honorable” and using the law as an excuse to engage in dishonorable practices goes to show a measure of the level of the individual. You can dress up a pig and put lipstick on it but when all is said and done, you still have a pig.

    There is a theory in management of an individual rising to their level of incompetence. The level of incompetence on display is certainly a new way of creating history.

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  • millertheanunnaki

    @ de pedantic Dribbler March 26, 2018 at 5:33 PM

    You have so cleverly responded in a fistic bout of comic relief to affirm what a royally deep blue sea of an asinine ‘hole’ in which Barbados now finds itself after promising to one of the suspect sons of the same Queen Lizzy, one Prince Edward of Wessex- not the pussy-whipped King clown the V111- in 2012 and again in the year 2014 the year to celebrate the 375th of the 3rd oldest Parliament in the Commonwealth aka the former British Empire that Little England will be cutting its childish apron strings and marching on to be a forced-ripe adult in 2016 as an appropriate 50th birthday gift to its now fully matured people now ripe for a banana republican status.

    Come on Dribbs, if a little two-bit country can’t even deal with its own shite in a fully potty-trained manner do you really feel it is ready to really punch above its weight in the playgrounds for big boys and girls called the financial shark holes without a ‘royal’ hand to hold?

    Liked by 1 person

  • millertheanunnaki

    @ Wily Coyote March 26, 2018 at 7:02 PM #
    “Wily can see the point that Jeff, Caswell and others are making with respect as to who/whom under the Constitution has the responsibility to call the election when parliament is dissolved by time and not the prime minister. As the intent of the Constitutional authors is unknown, then this issue may indeed need resolution by a Constitution Court. The question is who/whom would initiate this constitutional review and the procedures thus involved if the government of the day is already dissolved. Could someone from the general populace initiate such a review.”

    WC, now don’t be a ‘road runner’.
    Stand your ground for you are in solid intellectual grazing with the questions you pose to the BU legalists including the doyen from the, Lieutenant General Jeff C, with his arsenal of ammunition supplies from the ‘powdered’ academia stored on the Hill.

    The question of who will guard the guards still stands resolute.
    For if the HRH has no power to instruct Her representative in Barbadoes the dummy GG to tell Her Prime Minister what to do then who has.

    It clearly cannot be the same dummy GG who is, in the eyes of the anti-HRH battalion, is a mere rubber-stamping mimicking creature of the same acts of instruction from the same Primate inter Pares with no ‘written’ ratification necessary from the higher echelons of the HRH realm.

    Now let’s get ‘really’ hypothetical and ask the same distinguished dean with his legal faculties in tact what would happen should the same PM-given his predilection for recalcitrance- pushes the envelope and goes further to sap the nerves of the people to test their patience and ‘practically’ creates history by disregarding the 90 days provision; and without the declaration of a state of emergency based on the exigencies stipulated at Section 61, sub-section (4) or (5) of the Supreme Law carries on sine die as if he has appointed himself Lord King Fumble of the realm with his band of merry men and women around the cabinet feeding from the trough filled with the taxpayers’’ expensive’ swill with or without the figurative severed figurehead of the dummy in Pilgrim House.

    Seeing that he has already overstayed his 5 year period which his government had contracted with the people (his ‘real- real’ boss) in February 2013 then who would be expected to remove this loitering but growing ‘dictatorial’ menace from the scene, if not the loyal guards of HRH, the external regulator of all things democratic à la Westminster in Her ex-colonies still, de jure, under Her wing of surveillance?

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  • @ miller

    The question is…WHO WILL?

    Martial Law under the aegis of THE BARBADOS DEFENCE FORCE until such a time preparation is made for the call of an election should it exceed the 90 day extended period.

    Maybe the Constitution is being rewritten in the correct format while these posits converge on this topic. As most “Commonwealth Nations” has done so or in the process of doing so. Of note, the new GG is currently in the precincts of the Crown.

    Further to the “confusion” of letters of Independence, its worth in gold vs a subterfuge stratagem of Crown control, one wonders why our currency carries faces not of the British Monarchy still having “as head of state, a GG.

    It maybe what this delay to call the elections is what this is all about… and don’t forget the haste of amendments to law…with gifts from the Chinese and special gear.
    a trying to connect the dots.

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  • Further to that,
    WHAT IF the whole Saga is about LEGACY, one that would boast of TOTALLY loosening ALL ties FROM THE MONARCHY?

    Would one consider GREATER the total emancipation from the Westminster rule in winning the war at the expense of total drudgery of economic and social construct of your nation while playing fiddle with lyrics and analytics to render bank holidays … what a rabbit hole!!

    Like

  • Caswell Franklyn

    Everything is coming together quite nicely to ensure a situation that would allow extra-constitutional governance by the DLP.

    The intention was first hinted at when Ronald Jones let the cat out of the bag when he allowed the threat to crack heads and shoot people to fall from his lips.

    Then they got rid of Commissioner Dottin and refused to appoint the officers that he recommended for promotion. Instead, they promoted the officers who they believe would carry out the instructions to crack heads and shoot people. Also, they also refused to appoint Commissioner Griffith’s recommendations. They now have the people in place who they would rely on in the event that there is any opposition to them ruling by extra-constitutional means.

    The next step entailed amending the Police Act to give the Attorney General and the police sweeping new powers that would infringe people’s constitutional rights.

    When the Chinese offered assistance to the country, instead of opting for much needed garbage trucks or buses, these idiots chose military equipment, including water cannon, to suppress any dissent.

    It would appear that the Government now has the desire to unconstitutionally prolong their term in office. In addition, they have the personnel and equipment in place to hold on to power.

    And don’t forget that Blackett predicted blood flowing in the streets. Maybe he, like Jones, could not keep their secret plans confidential.

    Sent from my iPad

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  • It matters not the current intent, many scenarios are currently presenting the outcome of seeds poorly sown…from which strong consideration should have been weighed against moving in the service to self construct.

    For those who forcefully took the lands of Africa are now paying a heavy price, though not the initiators, being the offspring, is inheriting the sins of their forefathers. Pity that the “highly educated” makes mockery at known outcomes under guise of deception, infallibility and fraternal bonds.

    Fear not, for NO AUTHORIZE INTENT shall find root, …only exposure and JUSTICE.

    Look around you and see the principle in action. it is not what you say BUT what you do.

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  • correction…Fear not, for NO AUTHORIZE INTENT should read…NO UNAUTHORIZE INTENT.

    To add…it is not what you say BUT what you do, and more so WHAT YOU THINK.

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  • For those of you with an interest in the criminal law, Archbold’s is no more. It has been replaced as the significant document of the courts. The end of civilisation.

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  • Leviticus 23:22
    “And when you reap the harvest of your land, you shall not reap your field right up to its edge, nor shall you gather the gleanings after your harvest. You shall leave them for the poor and for the sojourner: I am the LORD your God.”

    And because this COMMANDMENT is so important it is repeated in:

    Deuteronomy 24:19
    “When you reap your harvest in your field and forget a sheaf in the field, you shall not go back to get it. It shall be for the sojourner, the fatherless, and the widow, that the LORD your God may bless you in all the work of your hands.

    And in Barbados for the last 21 days Freundel Stuart and his band of merry men and women have been reaping the political fields up to the very edge, they have been gathering the gleanings, taking every cent of their salaries and benefits.

    Is the pastor from Marchfield, and his band of merry men and women unaware of these COMMANDMENTS?

    Does it mean then that the Holy Scriptures mean nothing to these people. That they do not desire that God blesses the work of their hands?

    In the case of the Crane and the Prime Minister what is being done may not be illegal, but it is certainly UNBLIBICAL, WRONG, IMMORAL, UNETHICAL.

    Shylock too demanded the pound of flesh to which he was entitled. And we know what the word Shylock has come to mean.

    And we wasting time talking about legalisms, linemarks, accounting, constitutions etc.

    Come let us reason together, let us talk about right and wrong.

    Like

  • Pingback: The Jeff Cumberbatch Column – The Parliamentary Interregnum | Barbados Underground

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