The Jeff Cumberbatch Column – A Barbadian Miscellany I

The local constitutional conundrum wrought by the cocktail of the unforeseen results of the recent general election; the nominations to the Senate of at least three individuals ineligible under existing law; and the charmed creation of an Opposition leader from among the ranks of the governing administration continued apace last week. It was all to be added to by the news that three interested parties had filed a petition against Barbados before the Inter-American Commission on Human Rights challenging the legitimacy of the statutory provisions in our Sexual Offences Act that criminalize buggery between consenting partners and serious indecency. The latter is an offence that, on a literal interpretation, covers almost any imaginable sex act-

An act of “serious indecency” is an act, whether natural or unnatural by a person involving the use of the genital organs for the purpose of arousing or gratifying sexual desire.

Needless to say, it is rarely prosecuted when it occurs between consenting adults.

The incongruity of the appointment of His Grace the Bishop Joseph Atherley MP as the Leader of the Opposition, given the substance of his recent electoral campaign, was brought home forcibly this week with the disparate views expressed by the Opposition leader and his nominated Senator during debate in the Lower and Upper Chambers with regard to the provisions of the Constitution (Amendment) Act 2018.

The appointment of a formal Opposition leader so as to give the façade of bipartisan parliamentary consideration of legislation is not a credible substitute for an Opposition party enabled by trained research assistance and other administrative support. However, in light of the express text of the Constitution, the Governor General had little option but to appoint Bishop Atherley, once he had declared his intention of not supporting the Government and once that assertion accorded with her judgment According to section 74 (2)-

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…

As for the constitutional amendments themselves, two were of course necessary to enable the governing administration to have in Parliament those whom, in its considered opinion, are best able to articulate its policies in the Upper House. Few would begrudge the new administration this right, especially given its overwhelming support by the electorate. And I am not among those who believe that the Constitution is unalterable. After all, even the document itself creates the means for its own alteration.

However, one would reasonably expect in the interests of civic engagement and trust that any fundamental changes would be made subject to public discourse after the case for their revision has been clearly put. I do not imagine that the amendment relating to the residency requirement of a senator would qualify as a fundamental alteration at the present day, although the level of entrenchment of that particular provision might legitimately raise an eyebrow as to the framers’ rationale.

Less so, however, is the amendment relating to the proscribed dual nationality of the parliamentarian or, as it is so euphemistically put in the Constitution, one who is “by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign Power or State…”

A similar provision is located within most of the regional Constitutions. For example, section 48(1) of the Trinidad & Tobago Constitution 1976 states-

No person shall be qualified to be elected as a member of the House of Representatives who-

  • is a citizen of a country other than Trinidad and Tobago having become such a citizen voluntarily, or is under a declaration of allegiance to such a country…”

and section 40 (2)(a) of the Jamaica Constitution provides-

“No person shall be qualified to be appointed as a Senator or elected as a member of the House of Representatives who- 

is, by virtue of his own act, under any acknowledgment of allegiance, obedience or adherence to a foreign Power or State…

The reason for this disqualification seems to be a secular version of the axiom that “no man can serve two masters”, but the absence of popular discourse on the issue before its passage robbed the nation of its being able to weigh in intelligently on the matter. I had commented a few days ago in an opinion  piece entitled An unforeseen event that the Constitutional draftsman had made a hash of our section 75 which might have been intended to cater to the circumstance where there was no apparent Leader of the Opposition in the Lower Chamber but, which had, by its less than lucid provision, created some doubt in that regard. I had suggested as an alternative the clearer Trinidad & Tobago provision-

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]

I note however, from the text of the Bill that we have chosen to retain the identical text from the original section 75, while nevertheless mandating the Governor General to “after consultation with the political parties which do not support the Government, act in his discretion in the exercise of any function in respect of which it is provided in the Constitution that the Governor-General shall act in accordance with the advice of the Leader of the Opposition…”

This new provision appears now to require the Governor General to consult in a circumstance where the former provision empowered him to act in his sole discretion. I trust that it would have been noted by officialdom that there is a constitutional ouster clause applicable to any such  arrangement. Section 32(5) provides –

Where the Governor-General is directed to exercise any function in accordance with the recommendation or advice of, or with the concurrence of, or after consultation with, any person or authority, the question whether he has so exercised that function shall not be enquired into in any court.

Finally, I observe that the debate in the Senate yesterday proceeded in the absence of at least one of the nominated members. The government, doubtless out of an abundance of caution, had chosen to appoint two Senators pro tempore. The legislation was accordingly passed and I might be “caviling on the ninth part of a hair” but the question does beg asking, “Was the Senate legally constituted in those circumstances?” And what is to be made of the provision in section 36 (1)?

The Senate shall consist of twenty-one persons who, being qualified for appointment as Senators in accordance with the provisions of this Constitution, have been so appointed in accordance with the provisions of this section.

To be continued…

 

 

 

98 comments

  • Jeff Cumberbatch

    Has anyone suggested that attention be paid to the disparity in interest between interest paid to Bank depositors, and those charged by Credit Card issuers? 22%, or more, as against i% or lower on deposits”

    @ Alvin, This is a purely matter of contract. The Central Bank regulates banking institutions, The FTC regulates the fairness of the PROCESS of contracting not the RESULT!

    Like

  • Jeff

    Where we agree is this.

    There was an election and a House of Assembly was elected.

    The House nominated a PM

    A cabinet was chosen.

    The GG appointed the PM

    Like

  • And what would you and Pedro suggest had the DLP won one seat only?

    ++++++++++++++++++++++

    Same as if they had won zero, but if and only if no other group opposing the Government which was present in House when it divided who had won one or more seats.

    It is quite possible I think, for there to be two parties each winning one seat and an opposition to be formed.

    Suppose the D’s had won say 5 seats, the S’s scraped 1 and the Bees got 24.

    It is also quite possible for those 6 who oppose the Government to coalesce and the leader of the opposition chosen to be the S.

    In that case the party winning one seat provides the leader of the opposition.

    Would all hell break loose and people say the constitution needs to be amended because we never had a situation like that before?

    Off course not because the constitution foresees all possible combinations of outcomes and parties, once the number of parties does not exceed 30!!

    If you look at the constitution it gives a limit of 24 seats or as many as Parliament decides.

    Parliament decided 30.

    It doesn’t explicitly say that there can be no more parties represented in the house than 30 ….. but it is kind of obvious … not just because I say so!!

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  • Are you aware that the plural includes the singular and vice versa in egal drafting and statutory interpretation?

    +++++++++++++++++++++++

    I would imagine the masculine includes the feminine otherwise we couldn’t have a Dame Sandra, or for that matter, a Dame Nita!!

    Did they have to change the constitution to permit Dame Nita to become the GG?

    I could see the singular including the plural but if the plural is specifically used I would think that is the clincher.

    Tell you what, redraft the phrase Pedro thinks indicates plurality and see if it makes sense and could be interpreted as meaning the plural also.

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  • Jeff,

    Regarding this extract that you quote ”“by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign Power or State…””….

    Surely this may be considered to exclude the UK and Canada, as ultimately for each of the three, Barbados, the UK and Canada, the Head of State is the Queen?

    As such, pledging allegiance to the Queen, to become a citizen of either of UK and Canada is not pledging allegiance to a ‘foreign’ power, because the Queen is the Head of State for Barbados.

    Like

  • (2) 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.

    ++++++++++++++++++++++++++++++++++++++++++

    Perhaps you can get it done but if you try making it singular it seems like you also have to remove the word majority.

    “a majority of those members” becomes “that member”

    Would this be a proper interpretation to not only make the singular apply and also drop a word?

    If you leave majority, then the opposition would consist of the leader and a minimum of one other member of the house.

    In which case he would command the majority support of a group of 2, himself and one other.

    Actually it would be unanimous support.

    Unanimous would count as a majority, would it not?

    Like

  • Maybe another Bee will decamp and defect to the benches of the opposition to keep Reverend Joe company.

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  • From Wiki ”I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.[11]”

    And ”I, [name], [swear by Almighty God] [do solemnly, sincerely and truly affirm and declare] that, on becoming a British citizen, I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, her heirs, and successors, according to law.”

    While both the Canadian and British requirements state adherence to their laws as citizens, the underlying and overruling allegiance, clearly stated, is to the Queen. The Head of State for Barbados.

    It can be argued that there is no need for change for that aspect of the Constitution to allow dual nationality with respect to the UK and Canada.

    Like

  • Crusoe … Crusoe ….. Crusoe

    I have already discovered through experience that lawyers exist just to complicate simple matters

    Like

  • Does the constitution allow for a Deputy PM?

    If so, it must allow for a deputy leader of the opposition.

    When you think of it like that Reverend Joe really needs a deputy.

    Like

  • (2) When the Senate first meets after any dissolution of Parliament, it shall, as soon as practicable, elect a Senator, not being a Minister or Parliamentary Secretary, to be Deputy President of the Senate; and whenever the office of Deputy President becomes vacant for any reason other than a dissolution of Parliament, the Senate shall, as soon as convenient, elect another Senator to fill that office.

    ++++++++++++++++++++++

    Did the Senate elect a Deputy on Friday?

    If so who, and if it did, who is the President of the Senate?

    Like

  • Jeff Cumberbatch

    In this Act and in all Acts, regulations and other instru- ments of a public character relating to the Island now in force or hereafter to be made, unless there is something in the subject or context inconsistent with such construction,
    or unless it is therein otherwise expressly providd-*
    ( a ) words importing the masculine gender include females; and
    (b) words in the singular include the plural, and words in the plural include the singular.

    @ Crusoe, interesting point but somehow I do not think that the reference is to the Head of State as much as the Government, The Queen is also head of state in Papua New Guinea, I think, Would a Barbadian dual national there also be excluded?

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  • (b) words in the singular include the plural, and words in the plural include the singular.

    +++++++++++++++++++++++++++++

    We agree, the masculine includes the feminine so for example Santia Bradshaw could just as easily stand in Joe’s shoes.

    I repeat the question Jeff.

    How do you go from a “majority of those members” to a “majority of that member” and make any sense?

    Do we envisage cutting the Reverend Joe in two?

    I am sure he did not sign up for that.

    If the word majority is left out then pandemonium would reign on the benches of the opposition in deciding who should be the leader of the opposition.

    You could argue that pandemonium can’t reign if there is only one member but I can’t find the word pandemonium in the constitution because decisions are made on a simple or 2/3 majority.

    0 is indivisible into a majority and minority

    1 is indivisible into a majority and minority assuming you want a whole member

    2 is the smallest number that is divisible into a majority and a minority except the majority would be unanimous.

    Plurality works.

    At a minimum, that plurality is 2.

    Imagine Reverend Joe resigns or is called home.

    Who replaces the leader of the opposition?

    Yes, there will be a by election to fill the vacant seat but what if that new member was a Bee?

    We would be back in potter, whether Reverend Joe had a companion or not!!

    Like

  • What might work but it would still be contrived, would be for the Bees in parliament to split on the issue of the unconstitutionality issue.

    The Bees do have a natural split, those who are in as first timers and want to qualify for pension after 8 years and the old hands for who that is not an issue.

    How many first timers in the Bees would lose out if an election was called?

    Husbands, Sands, Sutherland, etc etc.

    If there are enough, there could even be a new government.

    That division would still be contrived because it would be for personal gain and not for the reason the opposition is supposed to exist, to be a voice for those 41,000 people who oppose the Government.

    .

    Like

  • @John
    June 10, 2018 8:32 PM

    Lol.

    @Jeff, Along the same lines, yes. I get the point re the focus being government.

    Like

  • @Jeff,

    Forgive me, I was being somewhat mischievous.

    Like

  • Jeff Cumberbatch

    De nada, Crusoe!

    Like

  • Jeff Cumberbatch

    How do you go from a “majority of those members” to a “majority of that member” and make any sense?

    Do we envisage cutting the Reverend Joe in two

    @ John, you are being intentionally obtuse. That the plural includes the singular does not mean that wherever there is a plural word, it has to be grammatically restated in the singular. Rather, it means that the sense must be changed to accommodate the singular. The word majority would thus be otiose in this context. To borrow David’s phrase. “you may have the LAST word!”

    Like

  • Yeah…like in…. a majority of one.

    Tek dah..

    Like

  • @ John, you are being intentionally obtuse. That the plural includes the singular does not mean that wherever there is a plural word, it has to be grammatically restated in the singular. Rather, it means that the sense must be changed to accommodate the singular. The word majority would thus be otiose in this context. To borrow David’s phrase. “you may have the LAST word!”
    +++++++++++++++++++++++++++++++++++++++++++

    Kind of you Jeff!!

    Would just point out that replacing he with she and his with her works with the masculine/feminine aspect.

    Why don’t you try redrafting the clause in the constitution in the singular and show us poor idiotic non lawyers how it is done?

    If you are able to I would love to see the result!!

    Like

  • … and besides, after Reverend Joe was cut in two there would be a problem, … only one seat to fill!!

    So Reverend Joe can breathe easy!!!

    Like

  • SoMe times I wonder if people post on the blog just to be fashionable or for educational purposes
    I view the blog as educational and it is amazing how we spend so much time trying to be full of ourselves and fulminating on mundane issues while on the other hand sweeping serious issues under the carpet
    Here we have up for discussion the view of some persons including eminent Professor Pedro Welch that the appointment of Reverend Atherly as Leader of the Opposition is in breach of the Constitution and we spend time discussing brassbowlery
    Would time not be better spent badgering the Constitutional lawyers to give their opinion on the whether the Governor General erred and if so lobby for an amendment to allow the goodly Reverend to rightfully be seized of the honour bestowed on him

    Like

  • How many first timers in the Bees would lose out if an election was called? Husbands, SANDS, Sutherland, etc etc.
    +++++++++++++++++

    If elections were called Sands would not lose his seat because he is NOT an elected member of parliament.

    John has contributed so much shiite to this topic……….it’s simply amazing!!!

    I have to agree with Charles Skeete re: “Sometimes I wonder if people post on the blog just to be fashionable”……….

    ……….and Jeff Cumberbatch re: “John, you are being INTENTIONALLY OBTUSE.”

    Like

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