The Jeff Cumberbatch Column – A Year of Constitutional and Governance Issues

At this time, people tend to reflect on the twelvemonth past and to contemplate the coming one. Today, I propose to attempt the first.

From my perspective, 2018 has been dominated by issues of governance and by their relation to the prescriptions of our supreme law. A review of my columns for the year corroborates this opinion. I had even thought of titling this week’s musing “A column of columns”.

Whether it was debate on the exclusive authority of the Prime Minister to set the date for a general election; on the legitimacy of the last governing administration retaining office in the absence of a sitting Parliament; on the unprecedented result of the May 24 general election that raised a minor constitutional crisis; on the resolution of the vacuum created in the Senate by the absence of an elected Opposition in the Lower House of Parliament; on the optics of the appointment of Bishop Joseph Atherley who had recently won a parliamentary seat as a member of the winning party as Leader of the Opposition; on the successful amendment to the Constitution so as to permit two nominated members of that Chamber otherwise disqualified to take up their seats; or on the recent unsuccessful attempt to remove the legality of the mandatory death penalty from our Constitution, local public discourse during 2018 has been consumed with the interpretation of the rules that govern our political administration.

In January, I suggested in Whose call is it, anyway? that on a construction of the relevant provisions, it was the Governor General rather than the Prime Minister who had the constitutional authority to issue the writs for a general election in certain circumstances. I wrote then-

The questions therefore beg asking, did the framers of the Constitution intend that a Prime Minister should be the sole authority in respect of the timing of elections in all circumstances of dissolution? Or does that exclusivity apply only in a case where Parliament has been dissolved by Prime Ministerial fiat? And does that imply therefore that if the House automatically dissolves itself through the effluxion of time, as in the current case, that the Governor General then assumes sole discretion as to the election date?

And I suggested an amendment-

Our regrettable lack of clarity in this matter is to be contrasted with the drafting precision of the provision in section 69 (1) of the Trinidad & Tobago 1976 Republican Constitution –“A general election of members of the House of Representatives shall be held at such time within three months after every dissolution of Parliament as the President, acting in accordance with the advice of the Prime Minister, shall appoint.” [Added emphasis].

On the issue of the senatorial vacuum in opposition, I was of the persuasion that while other learned views, including seemingly that of the government, suggested that section 75 solved the problem, our Constitution did not provide either clearly or at all for such an eventuality. While our section 75 did turgidly provide –

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-

  1. 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

  2. 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…

I begged to differ-

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.

And in An unforeseen event in May, I again sought to contrast this with the much clearer provision from Trinidad & Tobago-

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.

The conundrum was, of course, ultimately resolved by the defection of Bishop Atherley from the parliamentary group of the BLP and his subsequent appointment as Leader of Her Majesty’s Loyal Opposition, even though this was not at all free from controversy in some quarters-

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?

And some, including Professor Emeritus of History, Pedro Welch, and others, openly 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.

In A semblance of Opposition on June 24, I wrote in response-

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 to be 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…

A peaceful and blessed 2019 filled with love to all…

25 comments

  • “And I suggested an amendment-”

    Unfortunately this last remaining government is still LOST in a 1950s style of governance…it will take a life changing, earth shaking, MIND ALTERING event for any of them to WAKE UP and make the requisite amendments etc. …events that are known to occur.

    “will the Dems be investigated for malfeasance?”

    We are still waiting and reminding them daily while they PRETEND NOT TO HEAR.

    Like

  • You need to stop drinking the koolaid abot DEMS and any investigation by this govt
    This govt has an up in your face attitude about any thing to do about corruption and will always turn a blind eye and deaf ear teason being
    For one this govt have two of their own ministers involve with alleged illegal allegations and dare not do an investigation to satisfy the lurking eyes and searching souls of the people
    So you or any one expecting this govt to round up and prosecute any minister past or prsesent involve in corrupt practices is living in a fools paradise especially when corruption dwells within their house

    Like

  • “when corruption dwells within their house.”

    And for that very reason …the subject must be kept in the PUBLIC DOMAIN every day so that the WORLD can see that NOTHING IS DONE by the current leaders ABOUT BRIBERY CORRUPTION AND THEFT OF PUBLIC FUNDS by the FORMER leaders..

    Mia and her gang are hoping that everyone will just SHUT UP AND GO AWAY…why ya think current yardfowls attack me on the regular…cause I ain’t going nowhere.

    Like

  • How times change in 2013 Commissiong was calling it unfair that dominican republic was sending illegal haitians back to haiti and they should not be in caricom, new job new mind set ,willing to send people back to haiti who are here illegally although he himself says duped. I know it is a little different situation …..but

    Liked by 1 person

  • Vincent Codrington

    @ Lawson at 9:38 AM

    There is an old Bajan saying : “Come visit me differs from come live with me”. Talk cheap ; action scarce.

    Like

  • “that dominican republic was sending illegal haitians back to haiti and they should not be in caricom”

    Actually many of those Haitians Dominican Republic were sending back, were Haitian descended BORN in Dominican Republic…and the leaders of Dominican Republic are EXTREMELY REPULSIVE AND VILE…so much so…that the country should NEVER be part of Caricom.

    If the Mia government via Comissiong wanted agricultural workers from Haiti…they should have gone through Haitian government channels…they are both lawyers and they know this…they should have known better and handled it differently…..most Haitians do not have the financial means to be TOURISTS…

    Mia went to Suriname and came back gushing about some agreement she signed with Bouterse…even though I have yet to meet a Bajan who can speak fluent Dutch….lol

    At least Haitians are bilingual and in many cases multilingual …they would have to be to be in Dominican Republic.

    Like

  • Vincent Codrington

    @ Jeff

    This year 2018 was the year with many defining moments. It provided opportunities for Barbadians to show their maturity. It is early yet, but I think we performed very well. I hope we continue to apply our native commonsense (wisdom) to the challenges that will surface in 2019.
    I wish all an awe inspiring year in 2019.

    Like

  • And to you Vincent.

    Like

  • @ Jeff
    What will it take for someone who actually understands the frailties and contradictions of our outdated system of ‘Law’…
    to admit defeat…?
    Shiite man… do you need to see an atomic weapon deployed in a city? … twice?
    ..as was required in the last world war? … YOU HAVE LOST THE BATTLE.

    Cuddear man… When are you going to call it as it TRULY is…. ???
    Lotta shiite….

    We have a pack of dishonest lawyers ..misusing an outdated and archaic court system ….and manipulating the concept of justice – to meet their own albino-centric ends …
    While even more clueless judges grapple with mind-bogglingly simple-minded legislation …composed by morons whose ONLY real objective is to win re-election for a five year term in order to secure personal pensions. for life…

    Can you even THINK of a more ‘LOSE-LOSE’ arrangement?

    Then to top it all off, we have probably the ONLY intelligent legal mind in the whole damn place wasting his time trying to make sense of the confusion….

    Steupsss…
    Do you see now why Bushie likes the whacker…?

    One CANNOT convert shiite into food, …or urine into wine.
    Best to whack the whole mess into fertiliser and start fresh…..

    Wanna borrow a little whacker…..???
    LOL
    ha ha ha

    Liked by 1 person

  • The SEEDS of DICTATORSHIP are slowly being implimented, populace both intelligent and moronic are both not observant enough to determine what’s happening. When the populace wakes up and smells the roses it’s going to be TOO LATE.

    Any democratic and constitutional ITEM that is re-written or modified, NO matter how minor, must be carefully vetted as to what the future consequences maybe. In BARBDOS case the writer of this article is a MAJOR part of the BARBADOS PROBLEM, THE PROLIFERATION OF POORLY TRAINED INEXPERIENCED LAWYERS OPERATING WITHOUT PROPER OVERSITE IN THE POLITICAL REALM.

    All LAWYERS ultimate profession is DICTATOR.

    Like

  • Jeff

    Have you had time to consider the recent Guyana situation, surrounding a no confidence motion. If so could you offer a brief comment.

    Like

  • The truth is an anathema to Trumpettes.

    Like

  • Who are we to pass judgement on whether Barbados is a failed state, or led by incompetent or crafty structures, Do you prefer to be moderated by an albino-centric singularity that would further subjugate our class into the gutters of subservience and slavery which some are cunningly trying to resurrect?

    We have ( as a predominant Black country ) leadership by our own BLACK Brothers and Sisters, Yes, SOME questionable characters and history… many with parts to play and have many exploits to engage in creating the ultimate environment under good governance. Man has control to correct the wrongs, other than that, Nature will take its course.

    Whatever malevolent style of governance under disguised had long life, KNOWN is short-lived.

    Additionally, our own must constantly be aware of subtle suggestions and influences by those who work to thwart sound governance and the promotion of their peoples development at the expense of the majority.

    2018 saw a leap from the old standard worldwide. The GREEN VEST MOVEMENT is trending globally to keep Dictatorship style governments in check.. a word to the wise.

    2019 can be filled with accomplishment toward the goal of “majority development”.
    Tackling the most urgent and important things must come first in terms of recovery while at the same time work towards those things that fulfil the set agendas as planned.

    May “SUPPORT” support THE CAUSE for a brighter future regardless of the conditions and attachments.

    FAILURE CAN BE AVERTED in 2019….and it is so.

    Like

  • *Jeff

    Have you had time to consider the recent Guyana situation, surrounding a no confidence motion. If so could you offer a brief comment.

    @Pacha, Unfortunately, the Guyanese situation has now morphed from the merely legal into the partisanly political, an area in which I am loath to tread.

    Liked by 1 person

  • Wanna borrow a little whacker…..???

    @ Bush Tea, No thanks for your kind offer. I prefer a more surgical tool… a vorpal blade

    One, two! One, two! And through and through
    The vorpal blade went snicker-snack!
    He left it dead, and with its head
    He went galumphing back.

    Liked by 1 person

  • Ok Jeff … but you are making a basic error.
    The problem with a vorpal blade is that it it depends on a lucky hit to be successful…
    ALSO, …it tends to be ineffective against an enemy WITHOUT a head….?

    Think about that…
    If the enemy we face are consummate brass bowl morons
    unable to even work out for themselves that ‘sugar is sweet’…

    Where will you cut with your vorpie…?
    No head – means no neck….. therefore your weapon useless….

    With a whacker, however – you can whack ANY shiite… anytime, …anywhere.
    Be it…
    ..As bright as Ping Pong and Sir Fuzzy..
    ..dumb as Maripoka and Lexicon
    ..omnipotent as WARU
    ..as conceited as only GP can be
    …or even as elusive and seemingly omniscient as Pacha…

    NYLON in their donkeys….

    It is not to late Boss…
    You would be surprised how it fits into your hands …
    ..and even more so at the lovely, level playing field left in your wake…..

    Last chance…. 🙂
    going …going….. GRASS!!!

    Liked by 1 person

  • @ Wily Coyote

    Wait what is happening?

    De ole man jes lef de studio for 6 hours and when he return PEEPLE STARTING TO SEE DAT MOTTLEY IS A DICTATOR and dat she is moving full speed ahead IN THIS DIRECTION

    Whu even this article written by The Luminary Jeff Cumberbatch with his lumen of association, clearly presents a thread where the Beagle is express his fears IN COUCHED TERMS!!

    Now wunna dun see why de ole man writing about DEFECTION OF THOSE WITH BALLS?

    But unfortunately dem isnt got no balls among the 6?

    I thought that Ralph Thorne had balls but it is evident from his machinations THAT HE IS A BALLSLESS RAT as well.

    “…Then said David to the Philistine, Thou comest to me with a sword, and with a spear, and with a shield: but I come to thee in the name of the LORD of hosts, the God of the armies of Israel, whom thou hast defied…”

    De Ole man tells all uh wunna watch and see the Hand of God

    Liked by 2 people

  • @ the Luminary Jeff Cumberbatch

    My exposure to Lewis Carroll is limited so de ole man was forced to “duckduckgo your poem” (I doan do Google heheheheheheh)

    I found this verse which follows your own cryptic? verse which read

    “…”And hast thou slain the Jabberwock?
    Come to my arms, my beamish boy!
    Oh frabjous day! Callooh! Callay!”
    He chortled in his joy…”

    So, bereft as I am of your sartorial eloquence, de ole man shall try to extrapolate and I beg your indulgence should i reach “too far to the right of your centre”

    Since your submission,as all of your submissions, are surgical in their intent, de ole man will presume that your Carroll reference IS NOT PULLED OUT OF A HAT like the drivel of the ole man

    That caused me to examine what the passage referred to and stry to determine what it calls the beast, “the Jabberwock”,

    Now, in all me days I have never heard of a Jabberwock, I have heard of a Bogolord and a Muguffy and of late, a Mugabe, apparently that last one is a beast, but never a Jabberwork oh yes I also hear of a Chewbacca which can be a physihog or an oblong head like Kerrie.

    So, de ole man must assume that “your Jabberwock beast” has a head, because you do not “attack headless things, or things that are purposeless.

    Should de ole man, given the timbre and context of your column of columns, assume that you are in fact “attacking” a literal “head” and WILL, with surgical precision, remove the head of this beast?

    Like

  • Ninofnine

    Brother, it is share lunacy to believe that just because the faces which conduct the nation affairs are Black that somehow we are in command of our own destiny.
    When we are incapable of defending ourselves effectively from and internal or external foe, and in addition to this, we do not even possessed the landmass and natural resources to be considered a self-reliant nation.

    Liked by 1 person

  • Nineofnine

    I honestly believe that some of the folks and particularly the ones that have never travelled outside of the island of Barbados, cannot envision that they’re nothing more than a dot on world map and with no type of international influence whatsoever.

    Like

  • Lexicon

    Lets dabble on babble, your thoughts are not my thoughts.

    We are well aware, that coconuts are brown on the outside but white on the inside.
    Do you realize the power you have in just saying NO. Its the most fortified quantum mechanism in defense of any onslaught from foe, small or large, internal or external. As for defense from external foe or fear of siege, the enemies’ enemy becomes your friend and defense.

    Lack of landmass nor resources should not determine or command ones destiny.. It is in the thinking that either create or deny the opportunity, even the synchronicity that can bring about the desired objectives. For instance, does a telecommunications giant need great landmass to be successful, or an agriculturist that produces produce using hydroponics or does a production facility require great mass of land?

    The natural resources are there to be self reliant..
    ENERGY is the primary driver of any economy.
    Ocean tides and currents generate energy, in addition to wind and solar energy or even go a step further to harness geo-thermal energy by just drilling a hole into the earth. If you desire oil, there are plenty deposits offshore. That alone garners self reliance… these are 5 options.

    Products and Services are a mere production and innovation set of probabilities that can move toward export.

    Yes, BARBADOS is a dot, see it as a bright dot of light in what was once a sea of darkness.

    International Influence is there, you need to see the whos who doing what internationally. Barbados is already on the map… that can further be exploited.

    Like

  • Nineofnine

    What does United States, France, Russia, South Korea, China, Pakistan and India, all have in common that makes their influence fell on the world stage that Barbados does not have?

    Now, your point about landmass is fair and well founded, but I was thinking about landmass in terms of military strategies…

    The enemies’ enemy becomes your friend and defense … now I am not so sure about that because after 9/11 President George W. Bush threatened to downgraded the Grantley Adams Airport if the government of Barbados wouldn’t in supported of the war in Iraq.

    Like

  • Wasn’t in support

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  • lexicon

    One can have the sophistication of weaponry, a hacker can devastate them all.

    As for that lot, daddy gone or have “vanished underground”.. now watch what will become of the others. Future proves past. none of them can escape to Mars.

    Barbados should have told him where to put that downgrade or even ask him about the Israelis.

    Like

  • Crazy stuff

    Like

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