The Jeff Cumberbatch Column – The Parliamentary Interregnum

Interregnum: a lapse or pause in a continuous series; a period during which the normal functions of government or control are suspended –Merriam-Webster dictionary

For the most part, Barbadians appear to have accepted the constitutional interpretation advanced by the Honourable Prime Minister and others that his office possesses the exclusive jurisdiction to determine the date of the next general election, notwithstanding that the Governor General is expressly invested under section 62(1) of the Constitution with the mandate to issue the writs for a general election after every dissolution of Parliament.

As I argued at length and submitted in this space some three weeks ago under the title Whose call is it anyway?, I do not agree that this is a necessary interpretation of the relevant provision, even though it must suffice for now as an actuality until otherwise judicially determined (should it ever come to that). But I am also acutely aware that any further discussion on this matter in the public domain is highly likely to morph from one of the issue of an informed interpretation of the constitutional text into one of partisan bickering and grandstanding ; matters for which I have very little time, if any at all. In any case, to my best knowledge, the issue has not been seriously pursued further.

As a further limb to the argument, I note that both sections 61(2) and 61(5) of the Constitution make express reference to the Governor General having to act in accordance with the advice of the Prime Minister although, given the construction now sought to be placed on section 62(1) and in light of the provisions of section 32, especially subsection (1), there would have been no need for these subsections to do so expressly.

Concerns have also been more recently raised in some quarters as to the constitutional legitimacy of the continued existence of Cabinet at this time, although it appears that much of the negative public discourse here is understandably directed rather at the notion that its members are being fully remunerated during this period of parliamentary interregnum than at the more arcane issue as to whether its continued existence under the current dispensation is indeed permitted by the Constitution.

The current state of affairs is, however, at least at first blush, legally consonant with the Constitutional text. According to section 63(3)-

The office of a Minister, other than the office of Prime Minister, shall become vacant-

(a) upon the appointment or re-appointment of any person to the office of Prime Minister;

(b) if his appointment to his office is revoked by the Governor-General, acting in accordance with the advice of the Prime Minister, by instrument under the Public Seal ;

(c) if, for any reason other than a dissolution of Parliament, he ceases to be a member of the House of which he was a member at the date of his appointment as a Minister; or

(d) if he is not a member of either House at the date of the first sitting of Parliament after a dissolution of Parliament.

Clearly, this provision contemplates that the office of a Minister should survive any dissolution of Parliament, and it may be naturally reasoned that the Cabinet, comprising these very Ministers, likewise survives that event. It bears remarking, however, that the text of this provision makes no express reference to the Cabinet.

Nevertheless, the continued existence of Cabinet qua Cabinet may indeed be further presumed from the provision in section 64(1):

There shall be a Cabinet for Barbados which shall consist of the Prime Minister and not less than five other Ministers appointed in accordance with the provisions of section 65.

From this, we may assume that the continuous existence of the Cabinet is a constitutional reality (“There shall be a Cabinet for Barbados…”). At the same time however, the following subsection, s. 64 (2), stipulates that Cabinet is not to be wholly unfettered in its conduct of what is popularly referred to as “the people’s business”-

The Cabinet shall be the principal instrument of policy and shall be charged with the general direction and control of the government of Barbados and shall be collectively responsible therefor to Parliament. [Emphasis added]

Arguably, therefore, in a circumstance where Parliament has been dissolved, this constitutionally stipulated collective responsibility is incapable of realization. From this, the question next begs asking, “Did the founding fathers necessarily contemplate the existence of a period, sustained or at all, without the parliamentary oversight of an existing Cabinet? In other words, may there be an active (as opposed to a lame duck) Cabinet in the absence of a sitting Parliament under our constitutional framework?

I am forced to recognize however that notwithstanding its partisan allure, this argument resonates more in the context of constitutional theory than in practical reality. After all, given the current configuration of our Parliament where, through a combination of the size of the membership of Cabinet and of a political culture that instinctually estops a member of Parliament from voting otherwise than with his or her party, Parliament is practically controlled by the Cabinet rather than the Cabinet being collectively responsible to Parliament as the Constitution mandates.

What is politically intriguing about this entire debate however is that the official Opposition would appear to have scant moral authority to pursue this line of argument, having chosen to abdicate its role in the last Parliament, immediately before its dissolution by effluxion of time. It might, nonetheless, be partially excused on the basis that it woefully misread the likelihood of a prolonged period of parliamentary interregnum, although it must also be recognized that Mr Stuart had earlier hinted at this eventuality. It has now materialized.

32 comments

  • Well Well & Cut N' Paste At Your Service

    Apparently the new GG is still too busy celebrating and preening with pride to address these important legalities and issues issues negatively impacting the country.

    I have even less respect now for any of these lame brained, brainwashed pretenders, given the recent Windrush scandal…so they may as well stop all the pretentiousness and get on with their jobs as they are being paid to by taxpayers.

    That scandal and the historical mindless laziness of black leaders/governments and the yardfowls whom they elevate to taxpayer funded positions of pretension and power were the last straw and should not be tolerated by the majority citizens for not even one more day let alone the last 60 years..

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  • Dentistry Whisperer (M. Pharm. D) LinkedIN

    The rule of tyranny?  What if Barbados’ “Election day” was announced today (Sunday 22nd, April; what could you do? Nothing. The national force is under the orders of Stuart anyway. Therefore the average Bajan is boxed in and helpless. If election day was announced to be on April 26, 2018 (Stuart’s birthday) he would be re elected. Sample size using Chi. Sq was used. RegardsHaynes Darlington (M. Pharm. D)

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  • @Jeff Cumberbatch

    Presumably, the constitution was debated in the House of Assembly pre-constitutional independence? If so, is there a transcript of Hansard? Also, was a draft Parliamentary Act part of the Marlborough House discussion pre-independence? If so, are the minutes lodged in the pubic records office?

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  • Talking Loud Saying Nothing

    I was expecting your post to have concentrated on the “Windrush” betrayal.

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  • Is there a need for a fixed term parliament in Barbados? Recent UK legislation now determines the timing of parliamentary elections. It has removed the Royal Prerogative to dissolve Parliament and sets the date of the general election on the first Thursday in May in every fifth year, since May 7, 2015. The next election is due on 7 May 2020.

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  • Jeff Cumberbatch

    Presumably, the constitution was debated in the House of Assembly pre-constitutional independence? If so, is there a transcript of Hansard? Also, was a draft Parliamentary Act part of the Marlborough House discussion pre-independence? If so, are the minutes lodged in the pubic records office?

    @ Hal, you are of course aware that our Constitution is not a local creation but the Schedule to an Order made by Her Majesty as follows-

    Her Majesty, by virtue and in exercise of the powers vested in Her by section 5 of the Barbados Independence Act 1966 and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:

    This Order may be cited as the Barbados Independence Order 1966.

    This order shall come into operation on 30th November 1966 (in this Order referred to as “the appointed day”):

    I do not believe that the text of the Constitution was the subject matter of local Parliamentary debate…Perhaps the issue of Independence was but I have never read it in Hansard,

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  • Jeff Cumberbatch April 22, 2018 8:44 AM

    The order in council was an outcome, but there would have been a discussion, both as part of the independence discussions with the Foreign and Colonial Office, and, presumably, in the local House of Assembly? At the very least there would have been drafts of the final document.
    Here is a good subject for a post-graduate student to work on. After the 30-year-rule, all those documents would be lodged in the public records office in Kew, West London. In my youth I would have been off there in a shot.

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  • de pedantic Dribbler

    @Dean Jeff, well reasoned and presented argument particularly when taken in conjunction with your other excellent article a few weeks prior. I would seek your clarification on one aspect of your essay.

    In this context of what you stated what is the operational difference of “active” Cabinet as opposed to a “lame duck” Cabinet?

    For all practical purposes isn’t any cabinet operating during a dissolved parliamentary suspension by nature in “lame duck” status…Even if for example the dissolution was based on the adverse circumstances of martial law?

    BTW, I favor your line of reasoning which suggests that …it’s definitely fair to say that the framers would NOT have practically considered “the existence of a period, sustained or at all, without the parliamentary oversight of an existing Cabinet”. (Where was the precedent or expectation for such an event?)

    So if they determined that cabinet – despite its obvious party persuasive power to drive policy mandates – shall be under the oversight of Parliament than this question goes beyond theory and is in fact a practical matter to engage the courts and definitely some updated precision from the same parliament.

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  • @Dee Word

    You need to have extended your query to speculate why the framers of the Constitution would have left this gapping backdoor ajar if the overarching tenet of a good governance system- as practised by Barbados- requires oversight of the parliament and the working committees. Of course this will open the debate about how effective said working committees have been. Why did they not state what the 90 days are provisioned to support?

    Liked by 1 person

  • Jeff Cumberbatch

    At the very least there would have been drafts of the final document.

    Hal, If you are referring to our Constitution, none of these was made public too my best knowledge. In any case, our version differ only slightly from all of the other regional Constitutions except Trinidad& Tobago’s.

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  • Jeff Cumberbatch

    In this context of what you stated what is the operational difference of “active” Cabinet as opposed to a “lame duck” Cabinet?

    @DPD, as I suggested, this is more in the realm gof theory than practical reality. The active Cabinet would possess al the powers and be able to craft policy as if Parliament had not been dissolved; the lame duck Cabinet would be obliged to be more circumspect in its policy initiatives.

    What this entire episode has exposed more than anything is the clamant need for deeper thought on and reform of the Constitution.

    Thanks for your kind sentiments.

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  • In essence – Jeff – is confirming that King 👑 Freundel Jerome Stuart is on sound legal authority in delaying the General Elections up to this very time .

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  • Sad commentary on politics in Barbados

    “Folk want action, not talk” you could read the article.

    http://www.nationnews.com/nationnews/news/150255/folk-action-talk

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  • Jeff Cumberbatch

    *In essence – Jeff – is confirming that King 👑 Freundel Jerome Stuart is on sound legal authority in delaying the General Elections up to this very time

    @FLB. I am doing nothing of the kind, I think that the PM is taking advantage of the peace-at-all-costs, conservative, non-litigious nature of Barbadians typo achieve his own end. In fact, the matter has now moved beyond law into the realm of realpolitik.

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  • But Jeff you concede that PM Stuart has not compromised the Constitution of Barbados by the utilization of the 90 day period ?

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  • Jeff Cumberbatch

    @ FBLP,
    No he has not. The Constitution allows that. But I do not as agree that the PM alone has the power to issue the writ for a general election,

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  • I have read Mr Cumberbatch’s dissertation and perhaps in my ignorance i still am not any wiser as to whether our learned Prime Minister is within his right legally or otherwise to call or not to call elections since the dissolution of Parliament.
    Notwithstanding my comment above, as FBLP indicated, the inference can indeed be drawn from your commentary that Mr Stuart is on solid legal ground in delaying the calling of elections

    Liked by 1 person

  • Jeff Cumberbatch

    @ CS, My point is that he may or may not be legally right, but that may only be determined by a court of competent jurisdiction. The reality is that nothing is being done to prove him wrong, so he remains right until then. My view as expressed in my earlier column is that the PM does not have the exclusive power to call the date for elections once the House dissolves itself. I am also of the view, as I told Fractured earlier. that the matter is no longer one of law, but rather one of realpolitik.

    Being right or wrong in law does not come from a mere legal opinion one way or the other, no matter how well informed.

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  • Being right or wrong in law does not come from a mere legal opinion one way or the other, no matter how well informed.
    +++++++++++++++++++++++++++++++++++
    In fact, being ‘right or wrong’ in law is nothing but an arbitrary concept that is best correlated to one’s ability to enforce a particular point of view.
    Recall that the legality of Slavery was at one time a major controversy being debated.
    Very soon, marijuana – that could get you YEARS in jail now, may be on tap at government receptions…

    Put another way…. the ‘law’ is just a lotta shiite.

    Why Jeff even bothers to articulate these legal positions continues to amaze Bushie.
    Froon is just as likely delaying elections because he, or someone who influences him, has some shady business to finish…

    The ONLY real question is this…
    What manner of people can sit idly by, …while an idiot ruins their home and country…?
    …and what level of balls will it take for Bajans to say ‘enuff is enuff’?

    ….or how much jobby can a brass bowl take…?
    So far, the answer seems to be approaching infinity…

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  • ….and since Barbados has no court of competent jurisdiction..oh well.

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  • What in effect is happening here is a move towards fixed date elections. We have all been asking for the election date to be fixed and now we are a step closer. We can now calculate the almost precise date for the writs to be issued and the election called. No one should now be caught by surprise at the announcement. We should all be ready.

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  • I like Jeff’s description of the average bajan……’peace-at-all-costs,conservative,non-litigiousness.’Only an RH bajan would put up with these downgrading muddarferkers.

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  • Walter Blackman

    Jeff Cumberbatch:
    “…….. Barbadians appear to have accepted the constitutional interpretation advanced by the Honourable Prime Minister and others that his office possesses the exclusive jurisdiction to determine the date of the next general election…….

    I do not agree that this is a necessary interpretation of the relevant provision, even though it must suffice for now as an actuality until otherwise judicially determined (should it ever come to that).”

    Fractured BLP April 22, 2018 10:42 AM
    “In essence – Jeff – is confirming that King 👑 Freundel Jerome Stuart is on sound legal authority in delaying the General Elections up to this very time .”

    Fractured BLP,
    Another pesky, anachronistic Infants C graduate (Pachamamum, stop squirming), not yet even understanding that there is a difference between straight and crooked thinking, dares to influence the way an international audience thinks.
    Is this one more sign that the end of the world is near?

    Of course, that is the natural instinctive reaction that your writings might evoke from many readers. However, I see the opportunity for everyone to benefit when I view you through a political prism.

    With the content, logic, and quality of your writings out of the picture, you exude tenacity and energy. These are two invaluable political attributes.Were you to acquire the ability to think clearly, and to recognize that every industry has its jargon and finesse (for example, in politics one must always seek to be accurate in identifying official positions held by individuals. Therefore, to make reference to King Freundel Stuart, even in jest, is tantamount to exhibiting a mixture of asininity and profound ignorance. But I digress.), then you would have forged an ability to make a worthwhile contribution to the DLP and Barbados.

    As an initial attempt to get you involved in the process of thinking clearly, I will summarize the situation which has evolved to date:
    All readers and Barbadians recognize and accept that the life of parliament is 5 years, and that the Prime Minister has the legal right to set the date of elections BEFORE parliament is dissolved.
    If the Prime Minister refuses to set an election date before Parliament is dissolved (through the effluxion of time), who then has the right to set the election date AFTER parliament has been dissolved under such circumstances? The Prime Minister? The Governor General? Gearbox?

    The Prime Minister, in essence, has previously warned, and has now asserted that he alone has the legal right to call elections anytime, parliament or no parliament, as long as the election date does not cause a violation of the law.
    Jeff holds the view that there is no clear-cut provision in the constitution which gives the Prime Minister an unfettered right to call elections after parliament has been dissolved. He thinks that the matter could only be determined by a challenge in court. He concedes, though, that in the absence of a court case, the Prime Minister’s interpretation “must suffice for now as an actuality”. The Prime Minister threatened to make this move.No one said anything. He did it. Still no one said anything. Should he go on to win the next election, he will be hoisted upon many shoulders and hailed as the greatest political strategist the universe has ever seen. Should he go down ingloriously in defeat, he will be hoisted on his own petard, and will be forever vilified as a weak, bungling, pathetic, incompetent leader who could not even call an election date whilst parliament was “alive”. So great are the stakes for the PM in the 2018 Elections.

    However, as a people, we are tasked with the responsibility of shaping and redefining our future as circumstances change. I have sensed some support for an amendment to the constitution which would clearly provide for the setting of a fixed date for elections, once the Prime Minister refuses to set an election date before parliament is dissolved.

    I believe that a future Prime Minister, too compromised, unprepared, incompetent, or lazy to call an election whilst parliament is “alive” should have that power taken away once parliament has been dissolved. Therefore, I would support such an amendment.

    Would you?

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  • Piece Uh De Rock Yeah Right

    @ Mr. Cumberbatch.

    De Ole Man is going to ask this question knowing that you are not going to answer it.

    Bear with me as i set up its fanciful parameters as is the ole man’s wont.

    There are only two lawyers in Barbados.

    YOU AND DAVID COME SING A SONG.

    Unlike David who some say his songs are directed “against anyone other than the BLP because his cousin is …” or of whom, in times recent, has been singing the cacophany of “as long as you are a socialist you can do no sin”, and ergo his constant cant of “free Lula, or Maduro is being targeted by the US of A”

    De ole man believes that David C shall in similar vein, soon cry out that “Pol Pot should be lauded as a hero and not a villain” and that “3 million deaths of Kampucheans was wrongly recorded” for instead of murder such, a la Come Sing a Song means that “3 million revolutionaries were liberated for the good of Kampuchea/Cambodia”

    To the astute looker on, which I am not, it seems that the move by Fumbles is as follows

    a.change the Chief Justice and the Governor General to his stool pigeons
    b.appoint a Commissioner of Police that is also a stool pigeon
    c.appoint a Barbados Defense Force Commander in Chief who is also a stool Pigeon

    so you have the Military, Judiciary and Executive replaced by your peeples

    d.enact such laws under which any prolongation of cabinet, irrespective of its legal challenge, WILL WHEN SUCH PROLONGATION BE EXTENDED AS A RESULT OF CONTRIVED PUBLIC UNREST, it will be possible to enact Emergency Powers Act

    e.De ole man had already hit the send but and was not able to put this step in first which is to BUY RIOT GEAR FOR THE POLICE & NEW GUNS AND ARMOURED VEHICLES FOR THE BDF and keep those off island until the right time to bring them in. Send some trusted ingrunt DLP fellers off island to tran in how to operate that machiners WHEN THE TIME COMES

    f.Bring MIAMI JOHNSON back to barbados to use specific gerymandering techniques and dead people names and false IDs for the day of the general elections.

    g.Follow such ID Fraud with these two actions –

    EMERGENCY POWERS INTERVENTIONS where certain venues will have staged shooting incidents in areas where representatives of the contesting political parties live.

    ELECTION STATIONS HR FALLOUTS where, as a result of the aforestated “staged shootings”, certain polling stations will be undermanned/woman-ed due to this “martial law will be strategically declared” in

    Of course, these shootings will be in strongholds that the the BLP WILL WIN, AND STAFFING SHORTAGES ENSUINGLY WILL BE EXPERIENCED DURING GENERAL ELECTIONS, when BLP candidate counting officers would be INCAPABLE OF ATTENDING THEIR RESPECTIVE POLLING STATIONS.

    So my question to you My Cumberbatch, AFtEr ALL THAT LONG WINDED, PROLIX STUFF, is, why you don’t commence this constitutional action given (a) the deficit of the existing law (b) the fact that you are the de facto ONLY LAWYER with the gravitas to see and act on this and (c) the impact that such an action will have to give these power foolish incompetents some pause to their plans?

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  • Folks here don’t seem to have the slightest understanding of human nature. The PM’s party has been in power for two terms and judging by the comments on BU (and BU does reflect the pulse of the nation right David?) his Party is in for a sound thrashing so sound in fact that the LOP has been heard to tell her constituents that when they elect her they will not only be electing an MP they will be electing a PM….. but I digress.

    Back to human nature, if the PM senses that he is in for a defeat and he will have to relinquish all the perks and niceties that come with the Office wouldn’t he be tempted to hang onto the position as long as he is legally(?) able to and I have a question about that Commissiong has been suing the Gov’t left and right why didn’t he initiate an action against the Gov’t for its failure to call an Election within whatever time he believes has been proscribed by law? Any way my point is the PM didn’t want to miss out on pot lucks at the CHOG in London where he can dine on tea and crumpet (no not that other crumpet) and talk shop with his confreres.

    Before I go there are a few here who have downplayed the PM’s legal smarts but it looks like he is so canny that he has managed to hang on long past midnight while the best legal brains in the country are left fiddling their thumbs and commiserating with each other.

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  • @Sargeant

    Did the PM travel to the CHoC? Believe he bailed.

    Why should Comissiong be the one to sue? What about those vested read political parties?

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  • @David

    I picked Commisiong because he has been the one coming forward to challenge the Gov’t, quick recall-Fingerprinting for Bajan travelers and Hyatt- .What other parties? There is only one other Party and it might have been happy to have someone doing the heavy lifting for them or alternatively they were only paying lip service in their opposition to the two issues mentioned.

    The PM bailed? Didn’t know that but my other point about the perks of office still stands.

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  • We always love to pick on certain people–politicians and lawyers. Other Bajans from across the length and breadth of Bdos could have simply down tools too until the PM announced the date–much more symbolic and efficient than a law suit.

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  • @enuff

    History supports it. It is always left to the citizen extraordinaire to lead the charge.

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  • QEH: Emergency surgeries only

    ” The decision taken by the Heads of Department Theatre Users’ Group is due to the continued shortages of medical supplies and pharmaceuticals, plus problems with the autoclaves (used to sterilise surgical instruments).

    These shortages were largely due to the QEH owing suppliers, given the slow release of funds from Government, compounded by the scarcity of some critical pharmaceuticals globally.”

    Like

  • @Hants

    The QEH just received a Canadian Accreditation 2018-2021. How come?

    Like

  • I guess yuh could get ISO 9001 and still be short of autoclaves. #itistheeconomystupid

    Like

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