A Jeff Cumberbatch Column – An Unforeseen Event
A few people only would have accurately predicted the outcome of last Thursday’s general election that resulted in the former Opposition Barbados Labour Party romping to victory by capturing all thirty of the parliamentary seats at stake.
Among those who we may number as not having foreseen such an eventuality would have been the framers of our 1966 Constitution. Indeed, if we were to judge from the text they produced, it might be argued that, to the contrary, they contemplated that there would always be an opposition in parliament and a possible leader thereof, although that individual might not always be willing to serve in that role.
This is my assessment from a reading of the various sections of the Constitution pertinent to the issue. First, there is section 74 (1) that appears to presume the continuous existence of an Opposition in Parliament –
There shall be a Leader of the Opposition, who shall be appointed by the Governor-General by instrument under the Public Seal.
Second, section 74 (2) provides for the mode of his or her appointment, once more apparently making an identical assumption-
Whenever the Governor-General has occasion to appoint a Leader of the Opposition he shall appoint the member of the House of Assembly who, in his judgment, is best able to command the support of a majority of those members who do not support the Government, or if there is no such person, the member of that House who, in his judgment, commands the support of the largest single group of such members who are prepared to support one leader: [Emphasis added]
At least two of my learned friends, Justice Christopher Blackman in last Sunday’s issue of the Sunday Sun, and Ms Lynette Eastmond in Tuesday’s Barbados Advocate, have expressed the view that the issue is satisfactorily resolved by the provision in section 75. According to this-
During any period in which there is a vacancy in the office of Leader of the Opposition by reason of the fact that no person is both qualified in accordance with this Constitution for, and willing to accept, appointment to that office, the Governor-General shall-
(a) act in his discretion in the exercise of any function in respect of which it is provided in this Constitution that the Governor-General shall act in accordance with the advice of the Leader of the Opposition; and
(b) act on the recommendation of the Prime Minister in the exercise of any function in respect of which it is provided in this Constitution that the Governor-General shall act on the recommendation of the Prime Minister after consultation with the Leader of the Opposition…
It seems clear from a preliminary reading of this turgidly drafted section that while it is premised on the absence or non-existence of a Leader of the Opposition, that premise is not the broad one contended for by some in the present scenario, but rather is cribbed, cabined and confined by that absence or non-existence being for the express reason stated and that reason only, namely, by reason of the fact that no person is both qualified in accordance with this Constitution for, and willing to accept, appointment to that office… [Emphasis mine]
We should note that the section does not present the two elements as alternatives, in which case the draftsman would have used “or”, but rather as cumulative (“and”), thereby intending that both elements should be satisfied. Nor does it seem to import clearly that the second element (willingness to accept) is relevant only where the first element of qualification is satisfied.
It is readily conceded that the section is regrettably drafted and it is to be negatively contrasted with the much more lucid (though to different effect) provision to be found in section 83 (6) of the Trinidad & Tobago Republican Constitution of 1976-
Where the office of Leader of the Opposition is vacant, whether because there is no member of the House of Representatives so qualified for appointment or because no one qualified for appointment is willing to be appointed, or because the Leader of the Opposition has resigned his office or for any other reason, any provision in this Constitution requiring consultation with the Leader of the Opposition shall, in so far as it requires such consultation, be of no effect. [Emphasis mine]
It would appear that both of my learned friends and others have read the Barbadian provision as being identical to this one, when in fact it is not; since the T&T section requires only one of the stipulated prerequisites to be satisfied.
In the absence of a clear provision to cater to the current circumstances, the Honourable Prime Minister, Ms Mia Mottley, seemingly in agreement with the argument advanced here, has graciously indicated her preference for a constitutional amendment that would permit the party, other than that which comprises the governing administration, that captured the most votes in the election to nominate two members of the Senate, as the official Opposition would be able to in ordinary circumstances.
This amendment too will require careful drafting as it purports too alter, even if only slightly, the entitlement to Senate representation from one of the number of those first past the post to a semblance of proportional representation. I imagine, however, that she is contemplating a sunset clause to fit the current scenario. It is now up to the Democratic Labour Party to determine whether it will be aware of Greeks bearing gifts or whether it will look this gift horse intently in the mouth.
It is not an open and shut matter and will bring into sharp focus the regard of the political effectiveness of the Senate in our system of governance.