The Jeff Cumberbatch Column – A Semblance of Opposition

So great was the degree of disgust felt with the governance of the outgone Democratic Labour Party administration that the vox populi determined at the recent general election that it should not even be permitted to constitute Her Majesty’s Loyal Opposition in the next Parliament. Nor did the electorate consider that any other group of individuals should do so.

This was an eventuality never contemplated by the framers of our Constitution either expressly or at all. The effect was to create a minor constitutional crisis. History will record that for reasons that up to now remain a matter of pure conjecture, His Grace the Bishop Joseph Atherley, who had campaigned as a candidate for, and as a member of the Barbados Labour Party, decided to break ranks with the governing administration in Parliament and to have himself appointed as Leader of the Opposition.

Though perfectly constitutional in my considered view, this has proven to be a most unpopular development. Some, including Professor Emeritus of History, Pedro Welch and others, have doubted its conformity with the constitutional text, arguing that a literal interpretation of the relevant provision contemplates a plurality of members in order for a parliamentary opposition and hence its leader to be lawfully constituted. Unless the literal interpretation leads to a manifest absurdity, the argument continues, then the words of the provision should be given their natural and ordinary meaning.

While I understand and respect the force of this view, the literal meaning of a legal provision must be enabled by the accepted canons of interpretation, including the one that the plural includes the singular as provided by section 4 of the Interpretation Act, Cap 1. Otherwise, as I have pointed out before, the Constitution would have effected the unlikely and patently absurd requirement that the Prime Minister and Governor General must always be male. The canon that “he includes she” is of the same genus as that of “the plural includes the singular” and the former is not to be treated as self-evident while the latter is reduced to the level of “quirkdom”. In any event, as I have also argued, the Governor General is obligated to act in this mater on her own judgment and so long as she was satisfied in her mind that Bishop Atherley was best able to command the support of a majority of those members who do not support the Government”, or that he commanded the “support of the largest single group of such members who are prepared to support one leader” then the matter was put beyond pale.

However, the appointment has also proven to be unpopular on both sides of the local political divide. The Chairman of the Barbados Labour Party, the political party under whose aegis the Bishop contested the parliamentary seat in the recent general election, has publicly rebuked Bishop Atherley for his conduct in “crossing the floor”, and has called on the goodly MP to declare whether he has left the party or intended to do so, accusing him of dishonourable conduct. According to one report, Mr Payne is quoted as saying, “I was hurt and I couldn’t believe what I was hearing. Every night during the election campaign . . . nobody articulated these policies any better than the Honourable Member for St Michael West . . . and [he comes] to this House and asks questions like: If Mia’s plan is home-grown or facilitated by the IMF; if we sent signals to the electorate of the path ahead; will the Dems be investigated for malfeasance?”

The stridency of this reproach should have served to allay the suspicions of all but the most cynical, not a few in number, that regard the Atherley defection as nothing but a plot hatched by his party to ensure the absence of a parliamentary voice for the Democratic Labour Party for the duration of the current Parliament.

Some disfavour for the appointment has also come, quite naturally, from the DLP, which perceives itself as the rightful heir to the legitimate voice of parliamentary opposition once it does not possess the reins of government.

In my opinion, the Atherley appointment, though necessitated by the Constitution, is an inadequate and unsatisfactory replacement for an organized Opposition party that is backed by competent research and technical know-how so as to be instinctive presenters of alternative policy initiatives and critical assessors of official dogma. The electorate clearly thought otherwise.

In spite of his best efforts in this regard, Bishop Atherley will always be perceived to be either overly accommodating or traitorously hypocritical in his analyses of government policy in Parliament. This is but another instance where constitutional theory does not accord with practical political reality.

One matter that has seemingly not gained popular currency but that still concerns me however is whether a House of Parliament that is inadequately constituted is competent to pass any legislation. This is in reference to the Senate that passed the recent Constitution (Amendment) Act even though it did not comprise the number of members required by the Constitution to be regarded as the Upper Chamber in section 36(1). I commented on this earlier and wondered whether I was not caviling on the ninth part of a hair, but a discussion with a senior counsel last week confirmed to my mind that much might have been effected in the name of constitutional governance in recent weeks that required deeper and more careful thought.

PS I extend sincere condolence to the family and friends of Sir Fred Gollop who passed last week. I became acquainted with Sir Fred relatively recently when he joined me as the only Barbadians serving on the Regional Judicial and Legal Services Commission [RJLSC], the body charged with the management of the Caribbean Court of Justice. I found him to be, in Chaucer’s words, “a verray parfait gentilknight” and am not at all surprised at the multiple stated descriptions of him as “dignified”, “quiet”, “genial”, “humble” and “wise”. May he rest in peace.

I extend my sincere condolences too to the relatives and friends of another reader (!) of this column, the late Professor Emeritus of Education, Earl Newton, who recently shuffled off this mortal coil. Unfailingly polite, Earl was fiercely proud of his alma mater, Combermere. I recall that he and Professor Andrew Downes took me to task in the Senior Common Room one day when I dared to compare that school unfavourably with another. Rest in peace, Sir.

124 comments

  • Well Well & Cut N' Paste At Your Service

    Miller…I don’t even know what to say, very little has the ability to render me speechless. .

    Until earlier this month, most bajans who now know, including myself…did not even know the contents of the Constitution…. and the election took place at least two weeks before we found out its contents, many still don’t know, so in essence when Atherley got his legal appointment throught the GG….we knew not that we knew not about the true relationship with buckingham palace and the island..

    If anyone was paying attention they would notice that I do not even bother to cuss the beast of buckingham palace anymore, if they bothered to read the constitution they would opine that I now find cussing the beast a waste of my energy and would understand why.

    Let’s save our energy for the next phase and allow those who want to remain unknowledgeable about the realities of the island’s ownership to be free to continue deluding themselves.

    Like

  • @Caswell

    Please explain this comment. Wasn’t the Bill passed as amended and returned to the Lower House?

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  • Jefferson Cumberbatch

    Does the appointment of Bishop Atherly really reflect the collective will and conscience of the people and if his appointment was actually within the four walls of the Constitution the appointment would not attract negative commentary

    @ Mr Skeete, One might reason the same with regard to the headship of our state being placed in her Majesty the Queen of Great Britain. Does this reflect the collective will and conscience of the Barbadian people? If it does, how do we know for sure? And if it does not, whence the disintegration of the society/

    So long as the Constitution is cast in the form of a legal document, the rightful interpretation of it is purely a legal matter. Anything else is mere political blather and badinage.

    Liked by 1 person

  • Caswell Franklyn

    David

    The bill that came from the House of Assembly was passed with amendment in the Senate. In the Senate we voted to remove the clause dealing with section 75. As a result the bill had to be returned to the House.

    Sent from my iPad

    Liked by 1 person

  • Thank you for explaining Senator!

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  • Another question Caswell- was a divide called on the decision to remove clause 75? If yes what was the vote?

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  • Caswell Franklyn

    David

    A division was not called to remove the clause dealing with section 75. However, a division was taken on the final passage of the amended bill since it was a bill to amend the Constitution, there must a two-thirds vote of all members of the Senate.

    Sent from my iPad

    Liked by 1 person

  • “In my opinion, the Atherley appointment, though necessitated by the Constitution, is an inadequate and unsatisfactory replacement for an organized Opposition party that is backed by competent research and technical know-how so as to be instinctive presenters of alternative policy initiatives and critical assessors of official dogma. The electorate clearly thought otherwise.”

    Not the electorate Mr Cumberbatch but the Governor General who should have exercised due diligence given the peculiar constitutional situation and after consultation move to have the constitution amended to accommodate a one man opposition.

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  • Bernard Codrington

    @ Charles Skeete

    If the law puts a decision at the discretion of a person, can the decision be questioned when exercised? Logic would suggest to me that if the decision can be challenged it was not at his/her discretion in the first place. One may dislike the decision but we are governed by the Rule of Law.

    My position on the appointment of Rev. Atherley was one of the earliest submission on this matter. I remember writing with much relief that : ” God moves in a mysterious way, His wonders to perform”. That position is repeated in the first intervention on this submission under debate.
    The world is made up of tensions and contradictions, as human beings we have to live with what is satisficing to most.
    I hope this helps.

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  • Caswell Franklyn

    In Guyana the electorate votes for a party. In Barbados, we vote for individuals who have formed themselves into a party. The Constitution of Barbados does not recognise or speak to political parties when it comes to elections.

    Eric Williams had a remedy that worked to keep his MPs loyal to the PNM. He required each person who wanted to be a candidate for his party to sign an undated resignation letter addressed to the Speaker of the House of Representatives. If an MP went out of line, in William’s opinion, the resignation letter would be dated and sent to the Speaker. But he was the maximum leader and could get away with that behaviour. I noticed that Grenville Phillips had a variation of that idea but he was at best the minimum leader and it caused the fragmentation of his party.

    On the other hand, Mia has another way to ensure loyalty of her MPs – make them all ministers or parliamentary secretaries. It is called loyalty at a price.

    Sent from my iPad

    Liked by 1 person

  • Caswell Franklyn

    Charles Skeete

    If I thought for one second that Bishop Atherley’s move was unconstitutional, I would never have accepted his offer to serve in the Senate. Mind you, I , for one, am very happy that he advised the GG that he would not be sitting in the House in support of Ms Mottley.

    Let me share something with you that also motivated me to accept the appointment. On night I had a vivid dream that I was a member of the Senate. The following day I had a meeting at Pomme Marine with about 30 staff members. I told them that I would normally turn off my cell phone during meetings but I was expecting a call from the Governor-General. This was even before Bishop Atherley had notified the GG of his decision, which he had not previously discussed with me.

    Charles, I know that you are a believer, what do you think, divine intervention?

    Sent from my iPad

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  • So long as the Constitution is cast in the form of a legal document, the rightful interpretation of it is purely a legal matter. Anything else is mere political blather and badinage.(Quote)

    If the constitution was an exclusively legal document then parliament would be made redundant and we would be ruled by a constitutional court and men and women in robes like the US. In a parliamentary democracy, parliament is sovereign. The courts interpret the wishes of parliament, not give it directions.
    That is why constitutional theory (like regulation) is not a legal sub-discipline, but multi-disciplinary one. In fact, Walter Bagehot, author of the English Constitution, was a journalist, not a lawyer. It is still an important source on the authority of the British constitution.

    Liked by 1 person

  • Bernard Codrington

    @ Hal at 2:59 PM

    When the only tool a man has is a hammer ,every assignment is a nail.

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  • Piece Uh De Rock Yeah Right

    @ Senator Caswell Franklyn

    The “dream” that some of us see is not an experience that is understood by others here so you would be well advised not to share it with the unbelievers.

    It is a thing that has to be experienced to be understood by the faithless and the feckless.

    And when you “see” you either bow to it or…

    But I would pause a while to query your submission above which was and I quote

    “…I do share Jeff’s view and even threatened to take the matter to court but I came up on two problems: I only had one day’s notice; and where would I have filed it…”

    Now I would beg you just to entertain me a little for I am slow of thought as you would know

    “you had one day’s notice…” to do what?

    Accept the appointment?

    Why that would seem rather strange to de ole man when I consider that, IF THE OFFER WAS MADE, and you were very much at variance with the offer, WOULD IT NOT HAVE BEEN CONSISTENT WITH YOUR ACCUSTOMED PREDISPOSITION, to wait for a day or two OR WHENEVER THE COURT OPENED and then done what you were predisposed to do?

    Now here de ole man would beg your additional indulgence with some of my equally stupid questions but bear with me a little.

    Did you write any of these of your concerns and intentions on your computer/ipad?

    Did you share the contents of your thoughts with anyone?

    Via Ipad, Whatsapp or email?

    Be very clear with your response.

    And then i would have you revert to my warnings to you which are here on record and my comments to you and others here before that regarding downloading email attachments from so called internet buddies.

    I think I may have crudely referred to it as having sex with everybody out there without a condom

    I thing i may even have called you an internet illiteratus and suggested that you have your systems examined by more knowledgeable parties.

    Preferably someone stateside because whereas spying on a next feller’s computer in barbados is not a crime that can be prosecuted with any effectual results CAUSE WE JUDGES ENT GOT A CLUE BOUT ANYTHING, an infraction of this type, WHEN DISCOVERED BY US AUTHORITIES, is a federal crime and falls under Unlawful Access to Stored Communication.

    Up deah you does get lock up.

    But since I doubt that you will respond to me I will project that you either talked to someone about your intent to carry this matter to court by one of the above means AND, because they understood your premises to do same, you were stopped by this senatorial bribe, UNWITTINGLY? so, because the depth of the information that you had MERITED THIS INTERVENTION.

    So what does the Caswell Franklyn that we here at BU look up to do in this case?

    If de ole man’s conjecture is true, and your confirmation being absent, neither confirms or disclaims such since de ole man arrived at my final point WITHOUT THE BENEFIT OF YOUR RESEARCH, which I dont know that you have heheheheheheh

    But if my conjecture is true would such mean that you would resign on a point of principle and what your teacher taught you? or you are going to continue to take the senator’s monthly salary?

    I sorry, I going back to the Mugabe Regime/Legacy tingy

    @ Mr. Charles Skeete

    Not a man here realiseth that you are arguing specifically on the point “Does the appointment of Bishop Atherley really reflect the collective will and conscience of the people…”

    One smiles at that submission because either your detractors refuse to acknowledge the point tht you are making…or they simply DO NOT SEE THAT POINT.

    I too had opinioned that two of the less useful BLP successful representatives “cross the floor” and become the opposition.

    I think that i had suggested the useless sandra for this one and another person I ent too sure cause i does write so much dribble all the time that…

    But the 20/20 point of view is that the advice that Atherley and the BLP were given to overcome this hurdle was not the very best BUT WITH ALL DUE CREDIT TO MAM and the more serious issue of the economy and the requirements of servicing the foreign debtors SHE HAD LITTLE CHOICE IN THE MATTER.

    Ideally, to have brought some semblance of “opposition” to the constitutional parameters, Atherley should have joined one of the Political parties that had run AFTER HE HAD HAD IT DENUDED OF ALL OF ITS MEMBERSHIP.

    But the fact is that any actions that he has made and will continue to make are going to be suspect.

    You only need to ask Senator Caswell Franklyn what has been his interactions with the Leader of the Opposition since Atherley got his last instructions and debriefed with the BLP and he will tell you that he has not been having any really substantive meeting with Atherley.

    In fact that would only make me ask the Senator, if he has two ipads cause any communications that come forom Atherley on his Ipad WILL BE LIKE HAVING SEX WID WUFFLESS WOMENS without a condom

    I got to stop using that condom allegory doah cause Hoodie and Lorenzo out there lurking …

    Like

  • Jeff Cumberbatch

    That is why constitutional theory (like regulation) is not a legal sub-discipline, but multi-disciplinary one. In fact, Walter Bagehot, author of the English Constitution, was a journalist, not a lawyer. It is still an important source on the authority of the British constitution*

    @.Hal, Surely you are aware that the Btish Constitution is not a legally drafted document but rather a bundle of historical conventions and Royal Prerogative. I should be surprised if a lawyer were an authority in that context, Britain is NOT Barbados !

    Like

  • Jeff Cumberbatch

    @ Hal, are lay journalists authorities on the Human Rights Act too? Why do you think that they are not?

    Like

  • William Skinner

    @ Caswell
    Please note that not one of the MPs
    signed that letter !

    Like

  • Caswell Franklyn

    Piece

    As a result of that dream I told 30 people assembled together that I was expecting a call from the GG. At that point in time the BLP had thirty seats in the House so only the PM or the GG could have made me a senator. Knowing my relationship with the PM, it would have been far fetched to contemplate an appointment from that source, in any event, I would not have taken it. I therefore misinterpreted my dream to mean that I would have been an independent senator appointed by the GG in her own discretion.

    Little did I know the following day that Bishop Atherley would have broken ranks with the BLP and become Leader of the Opposition and that he would have selected me to be one of the two Opposition senators.

    The point that I wanted to take to court is whether the Senate was duly constituted to proceed to conduct business.

    Sent from my iPad

    Liked by 1 person

  • @Hal, are lay journalists authorities on the Human Rights Act too? Why do you think that they are not?(Quote)

    I am not sure you mean by ‘lay’, Jeff. But as you know, the Human Rights Act is a codification of moral beliefs. It includes a breath of issues, from the way citizens are treated by the police, to race relations and gender issues and everything in between.
    No one person is an expert on all those issues. The court is the institution through which these issues are arbitrated, thus the importance of lawyers. But that does not mean knowledge or even expertise. That is why UK law firms now buy in expertise – they deal with the law and the experts with the arguments..
    The differentiating issue is a right of audience. In the UK a right of audience was a much debated issue until the creation of solicitor advocates and the issue is still often played out in tribunals and county courts.
    As to Barbados NOT being Britain, I thought the guiding principles were the Westminster/Whitehall principles. Is that all a bad joke or convenience or just often misunderstood?
    I am sure I have never said Barbados WAS Britain or even that it should be like Britain. I simply seek to contradict the absolutist claims made by some people regarding legal theory. Bad law is bad law, whether it is British or Barbadian.

    Like

  • Piece Uh De ROck Yeah Right

    Senator Caswell Franklyn

    I thank you humbly for your response.

    And therein de ole man starts to comprehend this even more.

    First of all, for all here assembled, I must state that I do not mean to impugn your character by this line of narrative.

    What I am seeking to find out is if you had composed and then shared any of your concerns about the senate BEING DULY CONSTITUTED prior to your appointment.

    I am suggesting that this very action on your part MAKES YOU AN ADVERSARY and since they know what is in your machine, given that you accept their pdfs, both you and The Luminary Jeff Cumberbatch, it is then a fact that they know what you are planning even before you know what you are planning!

    It is for this reason that I have shared previously that your machines have been compromised and I am sure that you will take the precautions that I have been hinting at.

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  • “Not a man here realiseth that you are arguing specifically on the point “Does the appointment of Bishop Atherley really reflect the collective will and conscience of the people…”

    Piece…that point has been deemed moot from the day…two weeks or so AFTER the election, …WHEN we finally read the british drafted Barbados constitution in it’s entirety and realized the reality….because…

    Until earlier this month, most bajans who now know, including myself…did not even know the contents of the Constitution…. and the election took place at least two weeks before we found out its contents, many still don’t know, so in essence when Atherley got his legal appointment throught the GG….we knew not that we knew not about the true relationship with buckingham palace and the island…..VIA the british designed constitution.

    So again in essence…the people spoke on election day…once they did, the constitution kicked in.

    The people will once again exercise their will come next election, unless the Mia government keeps her promise and put everything to referendum and let the people decide everything going forward that concerns and impacts their lives….. as is provided for in the constitution.

    I don’t think it can be broken down any clearer than that..

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  • John. We are into the second month after over 111 Thousand individuals made the decision to place an X to ensure who runs the country. I bet that if the electorate had to go back to elect a Government the results will be the same 30, however, the percentage would increase to near the 100% mark since the performance of the ministers are showing results. Sewage abated, the transparency is evidence and the bloodline leaders is showing that she knows how to manage and her ministers cannot negotiate alone. Now you still want to go back to the polls? BTW. The blame must be placed squarely on the past PM and his Fine-ants minister along with a campaign manager who did everything wrong, even the refusal to allow prominent ministers to be part of the senate using an olive branch resolution.

    Like

  • Was Fred Gollop a qualified lawyer?

    Like

  • Pingback: The Jeff Cumberbatch Column – A Year of Constitutional and Governance Issues | Barbados Underground

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