Difficult Conversations – She is Infallible

Last week, I described the Leader of the Opposition’s irresponsible actions that unnecessarily delayed the Court case, and the Judge’s rejection of his adjournment request.  I will now report the Attorney General’s main arguments.

The Attorney General offered two main arguments.  The first was that the Leader of the Opposition’s appointment was not of sufficient public interest.  Therefore, it should not warrant the court’s attention.  That argument was rejected.

The second was that the Governor General’s appointment of Mr Atherley cannot be enquired into by the Court.  It is the second argument that should concern us all, and is the subject of this article.

UNVERIFIED ASSUMPTION.

The Attorney General based his argument on the assumption that the Governor-General’s appointment is protected by section 32 (5) of the Constitution of Barbados.  I responded that this assumption should be verified.  Section 32 (5) of the Constitution of Barbados follows.

32 (5) Where the Governor-General is directed to exercise any function in accordance with the recommendation or advice of, or with the concurrence of, or after consultation with, any person or authority, the question whether he has so exercised that function shall not be enquired into in any court.

IRRELEVANT SECTION.

I argued that this section is irrelevant to the appointment of Mr Atherley, since the Governor General did not need to consult, etc, with anyone in performing that appointment function.  Section 32 (1) of the Constitution of Barbados explains two categories of Governor-General functions.

32. (1) The Governor-General shall act in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet in the exercise of his functions other than –

a.       any function which is expressed (in whatever terms) to be exercisable by him on or in accordance with the recommendations or advice of, or with the concurrence of, or after consultation with, any person or authority other than the Cabinet; and

b.       any function which is expressed (in whatever terms) to be exercisable by him in his discretion.

I argued that it was the latter function (Section 32 (1) (b)) to which the appointment of a Leader of the Opposition belonged.  Therefore, the appointment may be enquired into by a court.

OTHER JURISDICTIONS.

The Attorney General also argued that other jurisdictions gave persons prerogative powers, that were not subject to judicial review.  I argued that the Constitution of Barbados, section 1, states the following.

“This Constitution is the supreme law of Barbados and, subject to the provisions of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.”

Therefore, if other jurisdictions chose to give specific persons prerogative powers, that conflict with the Constitution of Barbados, then the Constitution of Barbados should prevail in Barbados.

Further, the Constitution appears to give the Governor-General prerogative powers, only when she makes decisions in consultation with other parties, in accordance with section 32. (1) (a).  I argued that those prerogative powers do not extend into appointments where the Governor-General exercises her sole discretion or judgement, in accordance with section 32. (1) (b).

INFALLIBILITY ARGUMENT.

The Attorney General and I agreed that the Governor-General was obliged to act in accordance with section 75 (2) of the Constitution.  Where we diverged, is that the Attorney General ignored the fundamental prerequisite for the office, which Mr Atherley evidently did not have.  Namely, the support of other members of the House of Assembly.  Even the Judge appeared to acknowledge that fact.

The Attorney General argued that since the Governor General made the appointment, then that alone proved that Mr Atherley met the qualification.  The Attorney General essentially argued that it was impossible for the Governor General to make a mistake – she is infallible.  I explained the absurdity of that Constitution violating argument.

THE PARTY’S INTERESTS.

The Barbadian press continues to promote the provable fake news that the case was dismissed (it was not), rather than report the extraordinary arguments made during the case – which are easily available to them.  Perhaps it has time to ask why.

Jesus stated that we cannot serve two masters.  The Barbadian press must decide whether they will pursue truth – or the propaganda interests of their political party.

Grenville Phillips II is a Chartered Structural Engineer. He can be reached at NextParty246@gmail.com

16 comments

  • Grenville the world has changed, you do. It have to rely on traditional media to get your message out. You share information using several social media platforms and you have access to talk shows etc.

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  • Is’nt there a transcript of this hearing. Why does’nt the writer make it available here in the public’s interest.

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  • Sir, this is a serious accusation levelled against the Barbadian Media, and one which should be a cause for concern for all Barbadians, if what you are suggesting turns out to be factual.
    However, I know that I am troubled by your suggestion regarding the fact that the Barbadian Media, isn’t objective in its dispensed of the facts surrounding this case, due political partiality .

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  • This is part of the issue, we like to tip toe around the issues. Grenville knows if he sent the transcript it would be published. To hell with traditional media. Does he have the transcript is the question.

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  • Our democracy doomed, if the Barbadian Media lacks the testicular fortitude to objectively report the news for the fear of political reprisal or in view of political partiality.

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  • The number of trained lawyers on the rock rigorous analysis of the decision should not be an issue. There are serious concerns re the constitutional crisis which was averted and how it was possibly orchestrated.

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  • Vincent Codrington

    @ David Bu

    What was the constitutional crisis?

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  • @Vincent

    There not a constitutional crisis, there were arguments as you know that the 30-0 could have precipitated one. Will search for Jeff Cumberbatch’s article that addressed it.

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  • Vincent Codrington

    @ David Bu

    Thanks. I was making sure I understood your point.

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  • @Vincent

    See Jeff’s contributions on the subject and ensuing commentary.

    https://barbadosunderground.net/?s=Jeff+Cumberbatch+Atherley

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  • Hi David:

    The submissions I and the AG made to the court are at the Registry. The AG’s submission was 500 pages – in response to my 15 pages. The traditional media does not think that was important. They prefer to promote the fake news that the case was dismissed.

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  • Critical Analyzer

    @Grenville

    This is opposition leader appointment story is not fake news, it is nonsense news. You totally wasted your money and time bringing that case. You would have been better served giving that money to me or using that lawyer money to help someone else fight their worthy case.

    The court cannot adjudicate on the governor general’s appointment unless she wants to appoint someone against Cabinet’s majority wishes and as far as I know, none of the sitting MPs i.e. people that won their seats objected to him claiming the opposition leader seat.

    You need to pick proper hills worthy of defending before you decide to fight. What would you have demanded if you had won?

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  • NorthernObserver

    @GPII
    Exactly what was your request (claim?) which was ‘not denied’ ( granted?)
    Or, what were the tangible result(s) of the Judge’s decision.

    Liked by 1 person

  • CA:

    I represented myself. The claim was the same arguments I made in my articles. Therefore, the cut and pasting cost me all of $0.00. The AG’s submission was about 500 pages. Lawyers tend to charge about $500/page. You can do the arithmetic.

    Since the loser normally pays, guess who had to pay. Hint – it was not me.

    NO:

    My claim was essentially what I had asked for since the appointment. Namely, how could the Section 74 (2) of our Constitution be interpreted in a manner that could justify the appointment, without violating the Constitution. The Judge gave all of us present the interpretation. It showed that every lawyer that commented on this topic was dead-wrong.

    It also shows that the press in Barbados is willing to behave very badly. They continue to promote the lie that the case was dismissed. I plan to address the Judge’s ruling in my next article.

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  • nextparty246May 26, 2021 2:51 PM
    “My claim was essentially what I had asked for since the appointment. Namely, how could the Section 74 (2) of our Constitution be interpreted in a manner that could justify the appointment, without violating the Constitution. The Judge gave all of us present the interpretation. It showed that every lawyer that commented on this topic was dead-wrong.”
    ++++++++++++++++++++++++++++++++++++++++

    Grenville,
    Well Done! You are a man with both civic-minded courage and financial means to expose this glaring deficiency in a court of law.

    But you are not the first or only person to cast jurisprudential or ‘legal’ aspersions on that section of the Constitution.

    That ‘obfuscatory’ section was written to reflect the nuances of an entrenched Westminster-based political party system never contemplating to make any ‘clear’ provision for what took place in May 2018.

    It needs serious redressing under the revised Constitution of the coming republic where a system of proportional representation based on the number of votes cast for the candidates campaigning under a political party umbrella.

    Like

  • NorthernObserver

    My apologies I didn’t understand there was ‘another article’.
    Family gatherings at the Phillips clan must produce some interesting banter.

    Like

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