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-
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
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…