To make Barbados a Republic requires changes to the Constitution of Barbados. The proposed changes are contained in new legislation called the Constitution (Amendment) (No.2) Bill, 2021. This Bill appears to violate the Constitution, so I wrote open letters to the Prime Minister and all Members of Parliament expressing my concerns.
In the Senate, Bills are to be carefully read three times before they are passed. During their first reading, our senators gave their obligatory political speeches, then it was down to business. This Bill allows the politicisation of our armed forces and the Auditor General’s office, and cancels the people’s defence insurance. So I expected the Bill to be rigorously scrutinised.
SUPERHUMAN ABILITIES.
It took me over 50 minutes to read the Bill. But I have ordinary abilities. On 6 October 2021, our Senators read the bill a second time and voted on it, in two minutes and 19 seconds. This was a pedestrian pace, because they read it a third time in all of nine seconds.
Of course, our Senators are not as gifted as our elected Members of Parliament. On 28 September 2021, they accomplished their third reading of the most important piece of legislation they will likely ever read, in two seconds – a farce of the highest order.
GO TO COURT.
When giving her closing arguments on the passage of the Bill in the House of Assembly, our Prime Minister advised those who thought that the Bill was unlawful, to argue their case in the Barbados courts. So, I filed an Application for Judicial Review on 7 October 2021.
The case was heard on 12 October 2021. I represented myself, since I could not find a lawyer willing to represent me. A senior lawyer agreed to be with me in court, to give me advice as a friend of the court. Surprisingly, the Attorney General objected to him being present, since he did not file the Application. The Judge agreed with the Attorney General (AG).
WAKE UP.
I explained to the Court that I simply wanted the AG to explain how the Constitutional amendments were not in breach of Section 49 of the Constitution of Barbados. I noted that if the explanation was persuasive, I would ask the Court to stop the proceedings, and I would accept the costs.
The Judge gave strict deadlines to file the necessary documents. I filed my initial Submissions in half of the time given. The AG was very late and unresponsive, so I filed a Notice of an Application for an Injunction to wake him up. Still no response. Then the press learnt of the case, after it had been quietly ongoing for over one month. Once it was public, the AG filed his Submissions.
FINALLY, AN ARGUMENT.
I finally got to read the AG’s arguments, and found that most of them could be refuted, and the remainder easily addressed. Much of the AG’s Submissions was spent trying to get my claim dismissed – including by claiming that I had no standing.
To have standing in a judicial review application, an applicant must be one of two persons. The first is “a person whose interests are adversely affected by an administrative act or omission” [1]. The Second is “any other person if the Court is satisfied that that person’s application is justifiable in the public interest in the circumstances of the case.” [2]
MAKING STRAW MEN.
I had applied as the Second “any other person”, and argued that fundamentally changing how Barbadians are to be governed is in the public’s interest. The AG used the straw-man defence. He falsely claimed that I was the First person, and then criticised me for not stating the interests that were adversely affected.
I filed a Submission in Response to the AG, responding to all the AG’s new arguments. I explained that I had not applied as the First person but the Second, and quoted from my Affidavit to prove this. For completeness, I also provided the interests that were likely to be adversely affected by the change to a Republic, had I applied as the First person [3].
NATIONAL INTEREST.
Shockingly, the Judge believed the AG’s straw man argument, and stated: “He has not identified if and how his interests are adversely affected.” [4], as if my Submissions in Response did not exist. The judge also noted that he was not persuaded that the application was “justified in the public interest” [4].
Instead of dismissing my claim, as parts of the media have falsely reported, the judge decided the following. “This is a matter of national importance that will see a change in the country’s governmental structure”. He continued. “The public deserves a full discussion on the legal process that facilitated the change. Instead of summarily dismissing the Claimant’s application, I shall examine it against the background of what the law requires.” [5]
NO FAIR DISCUSSION.
The judge then provided his interpretation of Section 49 of the Constitution. He appeared to simply repeat the AG’s arguments, without any discussion or reference to any of my arguments in my Submission in Response. After the Judge gave his judgement, he invited comment.
I asked the Judge why he had not referenced my Submission in Response, which generally disproved the AG’s arguments. The Judge noted that my Submissions in Response was a rehash of my initial Submissions, and he dismissed it. That was very unfortunate.
I had no knowledge of the AG’s arguments in my initial Submissions. Therefore, the only opportunity I had to address them was in my Submissions in Response. Since there has not been a fair discussion of Section 49 of the Constitution in the House of Assembly, the Senate, or the High Court, perhaps one can be gotten in the Court of Appeal.
Grenville Phillips II is a Chartered Structural Engineer. He can be reached at NextParty246@gmail.com
[1] Administration of Justice Act, Cap.109B, Section 6.(a).
[2] Administration of Justice Act, Cap.109B, Section 6.(b).
[3] Claimant’s Submissions in Response, Section C3.
[4] Decision, paragraph 24.
[5] Decision, paragraph 29.
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