Today’s Barbados Advocate editorial should be of interest to the BU family – David, blogmaster
For me, as a public legal scholar, one of the more gratifying aspects of the current politico-constitutional enigma owed to the unprecedented outcome of last month’s general election and its consequences, has been the eagerness of citizens generally to seek knowledge on and to discuss what is the appropriate constitutional resolution of these issues. Indeed, some have not been timid to offer their own views publicly on these matters.
In this connection, a number of individuals have recently drawn my attention to an article by my now retired academic colleague, the erstwhile Deputy Principal and Professor Emeritus of History, Pedro Welch, in another section of the press.
Under the caption, “Unconstitutional appointment”, Pedro argues that the appointment of His Grace, the Bishop Joseph Atherley MP, as Leader of the Opposition was not permitted by a close reading of the Constitution and may be unconstitutional. Pedro uses an argument based purely on English grammar to suggest that the relevant section in the Constitution, section 74, contemplates an Opposition with what he terms a “plurality of association”. He states,
“The implication seems clear. The Constitution assumes that a plurality of association is required for an aspirant to the office of Leader of the Opposition to be recognized as having the support that qualifies him/her to be so appointed. Under this assumption, it seems clear that a single person cannot, by definition, be considered to have majority support or group support in the absence of a plurality of such support. In short, a single person cannot constitute a majority in the absence of like-minded others…We may also note that most dictionaries define a majority as the greatest number or part, thus requiring a plurality.”
I commend Pedro for adding the discipline of his scholarship to the public debate and accept the force of his reasoning so far as the English language is concerned. He broached the issue with me on Monday last week and I am pleased to see that he has written on it.
However, against his argument, there are certain conventions in drafting that are to be considered in the construction of a legal provision, One of these, well known to most laypersons, is that “the masculine reference includes the feminine”. As a consequence, it would scarcely be argued that the appointment of the current Governor General, or even that of the current Prime Minister would be unconstitutional simply because the constitutional text, in reference to these offices stipulates, “he”, “him” or “his”.
As it pertains to the Governor General, section 74 (2), for instance, provides-
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]
And for the Prime Minister, section 70 mandates-
The Prime Minister shall, so far as is practicable, attend and preside at all meetings of the Cabinet and in his absence such other Minister shall preside as the Prime Minister shall appoint.
Despite ordinary English usage, it would not be seriously contended by anyone that, by virtue of the words of these sections, the Constitution assumes that the holders of these offices would be men only.
Another convention of statutory interpretation, though one much less well known, is that words in plural form or number include those in the singular and vice versa. Indeed, section 4 of the Interpretation Act, Cap 1 of the Laws of Barbados, captures both of these conventions neatly-
“In this Act and in all Acts, regulations and other instruments 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 provided-
( 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.” [My emphasis]
Thus, the relevant section, s. 74(2), already cited above, would cover the circumstance where there are more members than one who do not support the government (members) as well as that where there is a single member that does not support the government. In that latter case, the notion of a majority would be otiose and therefore meaningless.
This piece is being prepared on the day that Bishop Atherley is scheduled to present his parliamentary response to the Prime Minister’s mini-budget. The nature and content of his response today will serve to establish, in the public mind, the genuineness of his opposition to the governing administration, but once Her Excellency. the Governor General, was so persuaded in her judgment, she had little option in the circumstances other than to appoint him to the position.
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