Difficult Conversations: The Good the Blind and Ugly
A fundamental concept in interpreting contracts, is that words must have their normal meaning in the language of the contract, unless those words are redefined in the contract. Using this concept, any normal reading of Section 74 (2) of the Constitution of Barbados, shows that the Leader of the Opposition must have the support of other Members of the House of the Assembly.
I tried interpreting Section 74 (2) in a manner that allowed the appointment, without violating the Constitution. Despite my 30 years of experience in construction contract law, I was unable to do so.
On the other hand, Barbadian lawyers claimed that the Interpretation Act provided enough elasticity to justify the appointment, without violating the Constitution. But they would not explain how. Lawyers, journalists, social commentators, and politicians and their supporters dismissed my concerns, claiming that I was blind to the obvious.
The appointment can be likened to a simple arithmetic equation: 1 + 1 = 2. The Constitution provides the 1 + 1 side of the equation, and leaves it to readers to calculate the obvious correct answer. The Governor General calculated it to be 48.6.
I tried to use all the elasticity available in arithmetic to find a different result. I found that through rules of rounding, it is possible for 1 + 1 to equal 1. For example, 0.6 + 0.6 = 1.2. It is permissible to round 0.6 up to 1. It is also permissible to round 1.2 down to 1. This allows 1 + 1 to equal 1.
Similarly, 1.4 + 1.4 = 2.8, which can be written, through rounding, as: 1 + 1 = 3. However, there is no similar rounding, that provides enough elasticity to stretch 1 + 1 into 48.6. But Barbadian lawyers asserted, with no reasonable explanation, that it was so.
I concluded that either I was blind, or Barbadian lawyers, journalists, social commentators, and politicians and their supporters were blind. If I was blind, then I risked giving less than excellent advice to my Clients, and misleading the public. So, I needed to have my ‘eyes’ checked.
This blindness cannot be diagnosed by an optician, but by a Judge. So, I filed a claim to understand how the Constitution of Barbados could be interpreted in a manner that justified the appointment, without violating the Constitution.
A WASTE OF TIME.
I saw how lawyers frustrate our excellent judicial system. I filed all my documents on-time. The lawyers either filed theirs late (by up to 5 months), or did not file them at all – it was an embarrassingly disrespectful spectacle. The lawyers spent their time trying to convince the Judge to dismiss my simple non-contentious request. They failed – miserably.
At the final hearing, the Judge apologized to me for the time-wasting that had occurred. The Judge then graciously shared her computer screen with all parties present, and provided an elegant interpretation of Section 74 (2), which I appreciated.
Using the arithmetic analogy, for 1 + 1 to equal 48.6, we must violate the rules of arithmetic and use algebra. The number 1 must be redefined as the character 1. Perhaps the equation is more recognisable as: x + x = 48.6. Therefore, x = 48.6/2 = 24.3. The character x equals the character (not numeral) 1. Therefore, 1 + 1 = 48.6.
The Judge explained that the Law addresses situations that it was intended to address. When situations occur that the Law did not anticipate, then the Law should not be used to restrict progress.
The Judge explained that the 30-0 result was unprecedented, and not anticipated by the Constitution. Therefore, the abnormal situation is not covered by the normal interpretation of the Constitution. The normal reading of the Constitution, where Mr Atherley requires “support” from others to qualify, may be put aside – or violated, to accommodate the unforeseen situation.
The ruling confirmed that I am not blind. My Clients can be assured that my interpretations of Contracts and Contract law remain sound, and they will continue to receive my best advice.
So, where do we go from here? I think that the Judge erred in Law, because our Constitution does anticipate the House of Assembly functioning without a Leader of the Opposition, as explicitly described in Section 75. Therefore, we were not yet in a situation where we needed to violate the Constitution. However, I already got what I wanted from the experience, and it cost me nothing.
So, I left the Court, comforted that I can still see clearly enough to give my Clients excellent advice, and not mislead the public. However, I re-entered the world of: partisan journalists, dishonest press coverage, arrogantly dismissive lawyers, and a public only too willing to be misled – by the blind.
BLIND AND UGLY.
I will let Jesus the Messiah, who will judge us all at the end, have the last words.
“Woe to you also, lawyers! For you load men with burdens hard to bear, and you yourselves do not touch the burdens with one of your fingers.”
“Woe to you lawyers! For you have taken away the key of knowledge. You did not enter in yourselves, and those who were entering in you hindered.”
“Let them alone. They are blind leaders of the blind. And if the blind leads the blind, both will fall into a ditch.” Luke 11:46 & 52. Matthew 15:14.