Two years ago, we all witnessed our Constitution being violated to install a Leader of the Opposition. When Mr Atherley crossed the floor of parliament, he became an independent member. But he wanted to become the Leader of the Opposition.
You do not become Leader of the Opposition by simply wishing to be one. There are mandatory constitutional requirements that Mr Atherley had to meet, to qualify for that post. These qualifications are explicitly stated in the Barbados Constitution, Section 74.2, copied below.
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,
1) 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,
2) 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”.
In both of these scenarios (referenced for clarity as 1 and 2), the Leader of the Opposition must have “the support” of at least one other parliamentarian to qualify for the post. Mr Atherley never had that mandatory “support”, and he still does not have it.
It is plainly obvious to any casual observer, that there is currently no person in the Parliament of Barbados, who can qualify for the post of Opposition Leader. Not a one. Yet, we have had to watch this farce play out for the past two years.
The Leader of the Opposition has a constitutional role of advising the Governor-General. If no person is constitutionally qualified to be Leader of the Opposition, then Section 75 of our Constitution allows the Governor-General to use her discretion, and advise herself.
So, what does the Constitution of Barbados allow in the current circumstance? Section 74.4 allows the Governor-General to revoke the appointment of the Leader of the Opposition if, in her judgement, he does not command this mandatory “support” of another parliamentarian – which he clearly does not.
If the Parliament of Barbados has not been properly constituted, then are any of the laws passed, or appointments made during the past two years valid? Can any of the new Ministers constitutionally claim that any part of the past two years Barbados can contribute to their pension?
Why would 29 parliamentarians, with everything to lose, spend two years ignoring these valid concerns? Why would they actively enable an unconstitutional parliament, knowing full-well that Mr Atherley does not have the constitutionally required support of any of them? What were they thinking by unnecessarily dragging this out for so long?
The new Ministers, who have not qualified for a pension, need to understand that this is not an academic exercise – for them. There will be a reckoning. There will come a time when they are no longer in government.
An Attorney General, from a rival political party, may decide not to ignore this critical constitutional concern. They may find that their enabling role in this farce, has disqualified them from any benefits they thought that they had accumulated during the past two years.
To address the common excuse that the Interpretation Act allows it, Section 36.2 of the Interpretation Act states: “In an enactment – (a) words in the singular shall include the plural; and (b) words in the plural shall include the singular.” Therefore, the support can be reduced from members to only one member, but “support” is still required.