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.
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.
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.
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).
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.