The former Leader of the Opposition in the Barbados Parliament, Bishop Joseph Atherley, is reported to have questioned why this country continues to function under a state of emergency. In his response, the learned Attorney General, Dale Marshall, attempted to be condescending to the Bishop, rather than give an explanation that could stand up to scrutiny. I would not dignify his response by repeating it here. I would only say that his reasons made no sense as usual.
Continue readingBishop Atherley,
Like many Barbadians, I am exceedingly proud of the bold step which this nation is taking as we embark on our journey to republicanism. It is with that patriotic spirit that I watched the proceedings of the Houses of Parliament as they elected the first President of our coming Republic. I had hoped, like many, that the day would be one of joyous celebration, for we have waited so long for this moment, as well as solemn reflection, as we contemplate the journey thus far and where we have yet to go. It was a day designed to be bereft of partisan rancour, a day for unbridled patriotism.
Ultimately however, that was not entirely the case. In particular, one gentleman, your Leader of Opposition Business in the Senate, sought to bring the entire dignified proceedings into disrepute, in the process affronting the Parliament, the country and indeed, you, as his Leader. While I would never presume to tell you how to exercise your constitutional duties, it no doubt appears that there is no choice but to either ask the gentleman for his resignation, and if he refuses, to recommend to the Governor General that he be replaced in the Senate. I take no delight in that position, but it is the only way to staunch the bleeding. I rest this contention upon three principal grounds.
Firstly, the gentleman has repeatedly been publicly at variance with you. In our system of government, the parliamentary leader and members of his frontbench must be in lockstep. This is particularly so in the Senate, where those appointed on your recommendation, are entirely dependent upon you for their continued service. While disagreement is par for the course, the matter before us is not a resolution to acquire land. The constitutional ordering of this nation at its highest level is of such paradigmatic importance, that any disagreement on that, means that there is an irredeemable loss of confidence on the part of both parties, for how can you agree on the ‘little things’ if the ‘biggest thing’ is so contentious. A man cannot be led by a person in whom he does not confidence, nor can a man lead another in whom he has no confidence. Little wonder then that in comments to the press, he delivered of himself a fatal remark, that to partake in the process would have made him “look like a fool”. Sir, you participated in the process, in fact you advanced a joint nomination. Sir, you cannot lead a man who thinks you to be a fool.
Further, the reasons advanced for his conduct are disingenuous at best. The gentleman pretends that his issue was with the ballot. The fact is, however, that there never would have been a ballot, unless he objected (note that in Trinidad, there is no constitutional provision to allow objections when there is only one candidate). Did he object in order to have a ballot so that he could again object? Is that the philosophy of the PdP: mindless objection? He alleged to the press that there was no way for him to vote against if he wanted to. We now know that not to be true. The Parliament makes rules to regulate itself, and parliamentarians were instructed that with the ballot paper, they could have indicated approval, disapproval or abstention, with a tick, an x or ‘abstain’. What then is the true reason for his conduct?
Worst of all, the gentleman cast a long shadow over one of this country’s most historic days. A survey of the social media platforms suggests that the national conversation was not dominated by this country decisively reaffirming our confidence in ourselves or by the fact that a young woman from St. Philip would be this country’s first President. No sir, these events were seemingly overshadowed by the gentleman’s conduct. Whether it was his intention or not, his conduct gave rise to this distraction. This, perhaps, is his greatest sin. That on a day that was about Barbados, about all of us, about our past and our future, about hope tempered by pragmatism, we discussed none of these things, we discussed a single man all day.
I don’t know when, but at some point, we began to think that democracy is an adversarial blood sport of scorched earth tactics. I say, emphatically, that it is not. That if we want a solid democracy as we transition to republican status, we must have politicians who exercise maturity, who can disagree with dignity and honestyand still reach across the aisle in times of national crisis and times of national pride. That is the democracy to which we ought always to aspire.
The gentleman may continue to disagree with everything, as is the right of any in this country, but like the rest of us, he can do so outside of the precincts of Parliament, where will not affront our democracy and our nation.
Bishop Atherley, I know you to be a man with an abiding love for our nation. Every second that this iniquity persists is a stain on this country. The people of Barbados do not deserve this. I ask you, sir, simply, to do the right thing.
Yours Sincerely,
Khaleel Kothdiwala,
A Patriot
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.
SIMPLE ARITHMETIC.
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.
DIAGNOSING BLINDNESS.
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.
THE INTERPRETATION.
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.
RE-ENTRY.
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.
I spent the past year trying to get a legal request (or claim) through the Barbados court system. I had my final hearing before a Judge on 12 May 2021. It was an interesting experience that I will share, now that the case before the High Court has ended.
The day after the final hearing, I was contacted by some news outlets for my reaction to the Judge’s decision. I explained that in deference to the Attorney General of Barbados, I would prefer that he be given the opportunity to respond first. I would happily and willingly respond after that.
FAKE NEWS.
The press interviewed the Leader of the Opposition. Based on that interview, the press reported that my claim was dismissed, or thrown out. That is fake news.
The facts are that at the hearing, the judge clearly stated that the only request that she was going to grant was mine. Further, the only requests that the Judge explicitly dismissed, or threw out, were those made by the Leader of the Opposition, and the Attorney General.
I informed the press of these facts, and expected them to correct the news record. They have not. To ensure that there is an accurate historical record, I plan to write a few articles on the case. This first article addresses the first dismissal at the hearing – that of the Leader of the Opposition.
MAKING A CLAIM.
My claim was about getting the Supreme Court’s interpretation of a section of the Constitution of Barbados. The specific section is 74 (2), which describes the method that the Governor General should use when appointing a Leader of the Opposition.
Whenever a person wants to make a claim about the Constitution, the person that must defend that claim is the Attorney General. As the person who made the claim, I am called the Claimant. The Attorney General, who must defend the claim, is called the Defendant.
When making a claim, the claim documents must be filed at the Court’s Registry. Then a copy must be served on (or given to) the one listed as the Defendant. This I did on 10 July 2020.
INTERESTED PARTIES.
Since the Governor General and the Leader of the Opposition had interests in this matter, I subsequently served (hand-delivered) copies of my filed claim to them. I also encouraged them to submit their interpretation of section 74 (2) of the Constitution, to the court.
A hearing before a judge was scheduled for 19 October 2020. On 16 October 2020, the Leader of the Opposition (through his attorney) filed an application to make a submission. During the hearing, the Judge explained that she was promoted to the Court of Appeal, and that another Judge would be assigned.
DELAYS.
We had a hearing on the 3 February 2021 before the assigned Judge. The Leader of the Opposition asked to make a submission. The Judge gave him a deadline of 3 March 2020 to file his submission. The judge also gave the Attorney General and I, a deadline of 22 March 2021 to respond to the Leader of the Oppositions’ submission.
With the Leader of the Opposition’s submission out of the way, the Judge then gave the Attorney General and I a deadline of 12 April 2021, to file and exchange our submissions. A final hearing was then set for 12 May 2021 to resolve this matter.
MISSED DEADLINES.
The Leader of the Opposition not only missed his deadline, but he never filed a submission. During the final hearing on 12 May 2021, the Judge noted that he had not filed his submission. The Leader of the Opposition responded that he intended to ask for an adjournment.
The main role that the Leader of the Opposition played during the court case, was to waste everyone’s time. To her credit, the Judge dismissed the Leader of the Opposition’s intent – before he could frustrate the system any further.
A glaring problem with our Judicial system, is unconscionable delays by lawyers. If lawyers do not have the time to give a professional standard of service to each of their clients, then they probably have too many of them. They should stop taking more clients, and employ competent staff to share the load.
In my next article, I shall describe the dismissal of the Attorney General’s request.
Submitted by Grenville Phillips II
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.
Submitted by Grenville Phillips II, Leader of Solutions Barbados
After the BLP won all seats in Parliament, we were told that our Constitution is flawed. It is not that our Constitution did not anticipate all members of parliament sitting on the Government side with no Opposition. Rather, our Constitution does not allow it. Constitutionally, there must always be an Opposition in our Parliament.
To increase the protection of the public’s interests, our Constitution (section 74.1) makes it mandatory for the Governor General to appoint a Leader of the Opposition. If an opposition leader is not appointed, then the voters get to decide with another general election.
To avoid holding another general election, Mr Atherley decided to be the Opposition Leader. However, there are mandatory constitutional requirements that Mr Atherley must meet in order to qualify for that post.
Our Constitution (section 74.2) gives the Governor General strict instructions for appointing the Opposition Leader. There are only two options available to her. The first option is to appoint the person who “is best able to command the support of a majority of those members who do not support the Government”.
When the Governor General appointed Mr Atherley, he was a formal member of the BLP, who had sworn, on his sacred honour, that he would support the BLP’s policies. Moments after he was appointed, Mr Atherley confirmed that he did not oppose the BLP’s policies, but intended to ensure that the Government carried them out.
By his own admission, Mr Atherley disqualified himself from being appointed under the first option, which specifies that the post is for the leader of those “who do not support the Government”. However, even if he did not swear fealty to the BLP, Mr Atherley would still be disqualified under the first option. This is because the Constitution requires him to have “support” of other opposition parliamentarians, which he did not have.
The second option is to appoint the person who “commands the support of the largest single group of such members who are prepared to support one leader”.
Mr Atherley explained that he was only becoming Leader of the Opposition to satisfy the constitutional requirement that there be an Opposition Leader, and for no other reason. With the Bible on which he swore nearby, and with his family beside him, he promised the public of Barbados that he would not form a political party.
Mr Atherley was one individual, and not a leader of a group of parliamentarians. Therefore, this automatically disqualified him from the post under the second option, since a group is comprised of a minimum of two persons.
To force Mr Atherley’s appointment, some argued that since the Interpretation Act supports singular and plural being used interchangeably, his appointment was in order. Let us examine this assertion. The Interpretation Act (section 36.2) states: “words in the singular shall include the plural; and words in the plural shall include the singular.”
In the first option, Mr Atherley needed the support of other “members”. The Interpretation Act can only reduce this requirement to one other “member”, which Mr Atherley clearly did not have. In the second option, Mr Atherley needed the support of a “group”, which is already singular (the plural being “groups”). So the Interpretation Act cannot justify his appointment.
Since Mr Atherley is disqualified by both available constitutional options, then on what basis did the Governor General appoint him? We are told not to ask such questions. Instead, we are supposed to shut up, accept the farce, and believe the absurd idea that only in Barbados, the singular of “group” is “individual”.
If our Constitution can be broken (not bent) so easily, without any recourse, then our Constitution offers us no protection whatsoever. This establishes an extremely dangerous precedent, that is foreseen to be also abused by any other political administration. The members of the Barbados Bar Association, who believe this to be a farce, are doing our country a grave disservice with their silence.
Instead of trying to solve a non-existent constitutional crisis, the Governor General should have informed Mr Atherley that he did not qualify. To avoid another general election, Mr Atherley could have resigned from the BLP, and encouraged one other Member of Parliament to join him (the PM would likely have allowed it). Only then could he qualify for the post of Opposition Leader. Our Constitution simply does not allow him to qualify by himself, and the Governor General should have known that.
Since we cannot have a Parliament without an Opposition Leader, and since Mr Atherley’s appointment appears to seriously violate our Constitution, is Parliament, as currently constituted, rogue? If so, then we may now have a constitutional crisis.
Grenville Phillips II is a Chartered Structural Engineer and President of Solutions Barbados. He can be reached at NextParty246@gmail.com
During the Barbados Labour Party’s (BLP) 81st Annual Conference in Queen’s Park on Saturday, Mottley described Opposition Leader Bishop Joseph Atherley, De Peiza and Solutions Barbados’ leader Grenville Phillips as “Eenie, Meenie and Miney” who were poor alternatives to the BLP Government.
[Nation Newspaper 27 October 2019]
The political barbs Prime Minister Mia Mottley lobbed at the three visible faces who represent the dissenting voice of political parties in our democratic system has evoked some public comment. Mottley in an address at the 81st Annual Conference of her political party used the occasion to rev up her political base – throw some reed meat at the loyal subjects. To intuitive political observers this is standard fare.
Have we forgotten not too long ago in order to avert a constitutional crisis serious consideration was given to creating Senate seats for the Democratic Labour Party (DLP)? That idea was scrapped presumably because our system of government is derived from a first past the post and not propositional representation. Bishop Joseph Atherley conveniently defected to the Opposition side and as they say the rest is history.
Leaders of organizations anchor positions taken based on values and purpose partially influenced by management philosophers of the past like Elton Mayo, Peter Drucker, Henry Gantt, Edward Deming et al. Political leaders will cite Machiavelli, Madison et al for the same reasons. Unlike Verla De Peiza, Grenville Phillips II, Joseph Atherley et al Mia Mottley – the political animal that she is – will not ignore the opportunity to stoke her popularity within the party. Imprinted on her mind are the faces of Dale Marshall, Ronald Toppin, Gline Clarke and George Payne who were instrumental in ousting her as leader of the BLP to make way for the return of Owen Arthur in 2010. So far she has adhered to Sun Tzu’s advice to “keep your friends close and your enemies closer”. Mottley wears the scares of her confrontations within the BLP to give currency to the position by many that politics is as a blood sport.
To cut a log story short, Mia Mottley is Prime Minister of Barbados AND leader of the Barbados Labour Party. This blogmaster anticipated her message to the annual party conference would have been laced with the usual political rhetoric and hyperbole. What Phillips, Da Peiza and Atherley must do is to exercise political gravitas in the counter to be seen as relevant in the minds of the electorate. Make no mistake, the average Joe will entertain a political actor who is not averse to riposte.
The Prime Minister at the Conference threatened to withhold a subvention Owen Arthur approved (Cabinet decision) for all political parties represented in the House of Assembly. Richie Hayne’s of the National Democratic Party (NDP) received the subvention of $150,000 when he displaced the BLP as the official Opposition. The subvention is allocated in the Estimates to Parliament under the authority of the Clerk of Parliament to disburse to the Leader of the Opposition to assist with administrative expenses. Arthur was sensible enough to appreciate a democracy is as strong as a quality opposition.
Prime Minister Mia Mottley should immediately suppress the temptation to rescind the practice of giving the subvention to political parties sitting in parliament. Given the overwhelming majority of the BLP sitting in the Lower House why has she made this an issue?
A word to the wise should be sufficient.
Since the shellacking the Democratic Labour Party (DLP) received at the polls in the last general election held on the 24 May 2018, the citizenry has had to make do with a contrived opposition. The Reverend Joseph Atherley who presented himself as a Barbados Labour Party (BLP) candidate was influenced by a divine intervention- the blogmaster suspects- when the 30-0 result was careening towards a constitutional crisis to cross the floor.
The adversarial nature of the politics practised in Barbados has quickly exposed the passive political persona of Atherley. Under his style of leadership the People’s Party for Democracy and Development (PPDD) will struggle to compete in what is popularly referred to as a blood sport. To Atherley’s credit he was able to lure trade unionist and social commentator Caswell Franklyn to his team, who to date has been the member of the party equipped to bare visible political fangs. He is supported by a youthful but inexperienced Crystal Drakes. Drakes continues to grow in stature as time passes.
The 30-0 now 29-1 has created a vacuum in Barbados politics. Our system of government was designed to accommodate an inquiring opposition IN parliament. What cannot be refuted is that an elected opposition represents an alternative government in waiting. At the time of posting this blog there was no evidence the PPDD had announced 30 candidates, therefore, if something unforeseen were to demand a general election there would be concern.
It gets more interesting.
The Democratic Labour Party (DLP) – the other half of the two political parties to have dominated elective politics in Barbados – continues to struggle since the 24 May 2018 to win hearts and minds of Barbadians. Like Atherley, President Verla De Peiza of the DLP lacks the charisma- in her case add support from the party base to do what is necessary to transform the DLP. Like the PPDD the DLP is in the process of selecting candidates to represent all 30 constituencies. A good critique is that De Peiza as shadow person for finance has been ‘outspoken’ by both Senator Crystal Drakes and of recent former Senator Maxine McClean. To hear from deputy Irene Sandiford-Garder one has to visit her Facebook page.
The ideal position is for a third party movement to emerge to create viable options for a fedup electorate. Despite a record number of third party registrants contesting the last general election, they have flattered to deceive. Not one has differentiated itself by advocating policies that resonate. It should be clear to new political parties they must have an all-encompassing approach to winning the hearts and minds of the electorate. One cannot turn up six months before an election with a realistic hope of winning. To Atherley and De Peiza who have been unable to deposit representatives in ALL the constituencies, this must be regarded as an insult to the people they want to represent. Have we reached a point where the needs of the party trump the needs of the people they want to serve?
Come on you other political parties, get your act together!
The 24 May 2018 result has created a situation where we have a de facto dictatorship.
Political parties select different colours to allow the public to identify their party and Candidates. This well-established practise in Barbados avoids confusion. The party colours of the three political parties that received the most votes in the last general election were: red for the BLP, blue for the DLP, and green for Solutions Barbados.
Political parties select different colours to allow the public to identify their party and Candidates. This well-established practise in Barbados avoids confusion. The party colours of the three political parties that received the most votes in the last general election were: red for the BLP, blue for the DLP, and green for Solutions Barbados.
We have been asked to comment on Atherley’s party, PPfDD, selecting the colour of Solutions Barbados, rather than choose their own separate colour. Our comments follow.
Solutions Barbados do not think that Atherley and PPfDD have done anything illegal. They have a right to select any colour they wish, including red and blue. However, while their action may be legal, it is highly unethical. It is also highly deceptive since their action can only confuse the public when they are trying to identify candidates.
Their actions are particularly disturbing since they claim to be morally and ethically superior to the BLP and DLP. If they were a party of rebels, then this type of unethical behaviour would be expected. But they claim to be a party of God, with several pastors among them who know that doing what is ethical, is more important that satisfying a legal standard. They have started very badly.
According to Atherley, the PPfDD formed about seven months ago. Why did they not spend that time creating a separate identity? Why attempt to deceive the public, while prominently claiming God as a supporter? They must know that God is not the author of confusion, so why are they trying to confuse the public?
The Bible describes satan as a deceiver, and the god of this world. The PPfDD are invited to confirm which god they are serving, by either repenting, or stubbornly continuing with their deception. They should know that their unethical behaviour is entirely consistent with that of the other fellow.
Grenville Phillips II is President of Solutions Barbados. He can be reached at NextParty246@gmail.com
At this time, people tend to reflect on the twelvemonth past and to contemplate the coming one. Today, I propose to attempt the first.
From my perspective, 2018 has been dominated by issues of governance and by their relation to the prescriptions of our supreme law. A review of my columns for the year corroborates this opinion. I had even thought of titling this week’s musing “A column of columns”.
Whether it was debate on the exclusive authority of the Prime Minister to set the date for a general election; on the legitimacy of the last governing administration retaining office in the absence of a sitting Parliament; on the unprecedented result of the May 24 general election that raised a minor constitutional crisis; on the resolution of the vacuum created in the Senate by the absence of an elected Opposition in the Lower House of Parliament; on the optics of the appointment of Bishop Joseph Atherley who had recently won a parliamentary seat as a member of the winning party as Leader of the Opposition; on the successful amendment to the Constitution so as to permit two nominated members of that Chamber otherwise disqualified to take up their seats; or on the recent unsuccessful attempt to remove the legality of the mandatory death penalty from our Constitution, local public discourse during 2018 has been consumed with the interpretation of the rules that govern our political administration.
In January, I suggested in Whose call is it, anyway? that on a construction of the relevant provisions, it was the Governor General rather than the Prime Minister who had the constitutional authority to issue the writs for a general election in certain circumstances. I wrote then-
The questions therefore beg asking, did the framers of the Constitution intend that a Prime Minister should be the sole authority in respect of the timing of elections in all circumstances of dissolution? Or does that exclusivity apply only in a case where Parliament has been dissolved by Prime Ministerial fiat? And does that imply therefore that if the House automatically dissolves itself through the effluxion of time, as in the current case, that the Governor General then assumes sole discretion as to the election date?
And I suggested an amendment-
“Our regrettable lack of clarity in this matter is to be contrasted with the drafting precision of the provision in section 69 (1) of the Trinidad & Tobago 1976 Republican Constitution –“A general election of members of the House of Representatives shall be held at such time within three months after every dissolution of Parliament as the President, acting in accordance with the advice of the Prime Minister, shall appoint.” [Added emphasis].
On the issue of the senatorial vacuum in opposition, I was of the persuasion that while other learned views, including seemingly that of the government, suggested that section 75 solved the problem, our Constitution did not provide either clearly or at all for such an eventuality. While our section 75 did turgidly provide –
During any period in which there is a vacancy in the office of Leader of the Opposition by reason of the fact that no person is both qualified in accordance with this Constitution for, and willing to accept, appointment to that office, the Governor-General shall-
act in his discretion in the exercise of any function in respect of which it is provided in this Constitution that the Governor-General shall act in accordance with the advice of the Leader of the Opposition; and
act on the recommendation of the Prime Minister in the exercise of any function in respect of which it is provided in this Constitution that the Governor-General shall act on the recommendation of the Prime Minister after consultation with the Leader of the Opposition…
I begged to differ-
We should note that the section does not present the two elements as alternatives, in which case the draftsman would have used “or”, but rather as cumulative (“and”), thereby intending that both elements should be satisfied. Nor does it seem to import clearly that the second element (willingness to accept) is relevant only where the first element of qualification is satisfied.
And in An unforeseen event in May, I again sought to contrast this with the much clearer provision from Trinidad & Tobago-
Where the office of Leader of the Opposition is vacant, whether because there is no member of the House of Representatives so qualified for appointment or because no one qualified for appointment is willing to be appointed, or because the Leader of the Opposition has resigned his office or for any other reason, any provision in this Constitution requiring consultation with the Leader of the Opposition shall, in so far as it requires such consultation, be of no effect.
The conundrum was, of course, ultimately resolved by the defection of Bishop Atherley from the parliamentary group of the BLP and his subsequent appointment as Leader of Her Majesty’s Loyal Opposition, even though this was not at all free from controversy in some quarters-
The Chairman of the Barbados Labour Party, the political party under whose aegis the Bishop contested the parliamentary seat in the recent general election, has publicly rebuked Bishop Atherley for his conduct in “crossing the floor”, and has called on the goodly MP to declare whether he has left the party or intended to do so, accusing him of dishonourable conduct. According to one report, Mr Payne is quoted as saying, “I was hurt and I couldn’t believe what I was hearing. Every night during the election campaign . . . nobody articulated these policies any better than the Honourable Member for St Michael West . . . and [he comes] to this House and asks questions like: If Mia’s plan is home-grown or facilitated by the IMF; if we sent signals to the electorate of the path ahead; will the Dems be investigated for malfeasance?
And some, including Professor Emeritus of History, Pedro Welch, and others, openly doubted its conformity with the constitutional text, arguing that a literal interpretation of the relevant provision contemplates a plurality of members in order for a parliamentary opposition and, hence, its leader, to be lawfully constituted. Unless the literal interpretation leads to a manifest absurdity, the argument continues, then the words of the provision should be given their natural and ordinary meaning.
In A semblance of Opposition on June 24, I wrote in response-
While I understand and respect the force of this view, the literal meaning of a legal provision must be enabled by the accepted canons of interpretation, including the one that the plural includes the singular, as provided by section 4 of the Interpretation Act, Cap 1. Otherwise, as I have pointed out before, the Constitution would have effected the unlikely and patently absurd requirement that the Prime Minister and Governor General must always be male. The canon that “he includes she” is of the same genus as that of “the plural includes the singular” and the former is not to be treated as self-evident while the latter is to be reduced to the level of “quirkdom”. In any event, as I have also argued, the Governor General is obligated to act in this mater on her own judgment and so long as she was satisfied in her mind that Bishop Atherley was “best able to command the support of a majority of those members who do not support the Government”, or that he commanded the “support of the largest single group of such members who are prepared to support one leader” then the matter was put beyond pale…
A peaceful and blessed 2019 filled with love to all…
It could scarcely be considered unfair or invalid to argue that the appointment of Bishop Joseph Atherley as the Leader of Her Majesty’s Loyal Opposition in the Lower House of Parliament was not a universally popular one.
From those who considered that a literal interpretation of the Constitutional text does not accommodate an individual MP being appointed leader of the Opposition in the absence of a plurality of likeminded individuals; to some members of his own party who questioned his sudden volte-face after his successful electoral campaign on a BLP platform; and to others who saw themselves robbed of the likelihood of a voice during this iteration of parliament, given the stated intention of the Prime Minister; they all questioned the propriety and validity of his appointment.
To date, no one has sought to challenge the appointment in a court of law however, and while I myself had expressed in this space some equanimity as to how his contributions might be perceived, it now appears, if we are to judge from his contributions to the recent parliamentary debate on the Integrity in Public Life Bill 2018, as reported in the Barbados Advocate for last Thursday [p.9], that the goodly Bishop has settled firmly into his role as the effective conscience of the people in Parliament.
First, he questioned a perceived link between the political class and certain criminal elements that, even with the protection of absolute privilege, he does not appear to have named. His larger point here was made in the context of electoral campaign financing, which he suggested ought to be the subject matter of legislative enactment.
As to the Bill itself, Bishop Atherley is reported as querying the omission of judges from the list of “specified persons in public life” in the Second Schedule. The newspaper report does not indicate whether there was any ministerial response to this query but it was the subject matter of court action in Trinidad & Tobago in the case of the Integrity Commission v The AG of Trinidad & Tobago.
There, by an amendment in 2000, the then governing UNC administration had included judges as among persons in public life subject to the Act. However, after objection from the judges, the Integrity Commission sought a determination from the Court as to whether having regard to the provisions of the Constitution and the Integrity in Public Life Act, judges and magistrates were indeed persons in public life subject to the provisions of the Integrity in Public Life Act as amended.
Mme. Justice Jones, who heard the matter, thought that subjecting the judges to the provisions of the Act constituted an alteration of the terms of service of those Judges appointed before the Act came into effect; impermissibly sought to control the manner in which judges function in their office; and sought to discipline judges in their capacity as judges in a manner that was contrary to the constitutional provisions designed to ensure the independence of the judiciary. She concluded therefore-
In my view… the provisions of the Act which allow for action to be taken and punishment to be inflicted against a Judge for duties imposed in the capacity as Judge are inconsistent with …the Constitution.
Her Ladyship also found that the inclusion of magistrates ran counter to the need to maintain a level of independence necessary to ensure that Magistrates as members of the lower Judiciary were accorded the autonomy appropriate to their status as members of the Judiciary.
In this regard, she determined-
“…not only is the provision giving the Commission some disciplinary control over the Magistrates inconsistent with the Constitution but, given the statutory provisions establishing the Commission, an exercise of disciplinary control over Magistrates by the Commission would not provide the insulation acknowledged by the Constitution to be necessary to ensure that the independence provided to Magistrates as members of the Judicial arm of the State is not eroded.
It bears remarking that Barbados has expressly included magistrates in the copy of the Bill that I have seen on the Barbados Parliament website.
As an adjunct to his contribution on the Bill, Atherley also raised an issue that has been in the public domain since it was recognized that the patently dissuasive monetary penalties proposed in the original public draft of the Act had been substantially reduced (from between $250 000 on summary conviction and $500 000 on conviction on indictment to between $10 000 and $20 000 respectively.
The official responses to this query do not appear to have been particularly cogent. According to another section of the printed press, the Honourable Attorney General is quoted as averring that the figures will “revert” to those originally promised. He did not consider that an explanation for the alteration was warranted or mattered at this point-
“There is an explanation for why the fines came down and it has nothing to with political will, but at this point I don’t think any explanation matters.”
Another member of the Cabinet offered an explanation in yet another section of the press. According to the Honourable Minister of Energy and Water Resources, Mr Wifred Abrahams, in Barbados Today, “…the changes were made by the parliamentary draftsperson responsible for preparing the Bill for presentation in the two houses of Parliament with a view to ensuring that the fines were consistent with other domestic penalties…those fines were changed without reference to the drafting Committee or to the Attorney General…”
This is, by itself, a surprising revelation. I have always been informed that the draftsperson is a mere amanuensis or scribe of the legislative intendment of the policymakers rather than a determinant of such policy. And while I could understand a drafter pointing out a patent inconsistency with a constitutional requirement, this is not alleged by Mr Abrahams. Indeed, the sole requirement of the supreme law in respect of punishment that might impinge on the current debate is that in section 15(1) to the effect that
No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.
This clearly does not apply here without more.
Comparatively, in Trinidad & Tobago, for failing to make the required declaration or for making a false declaration, a person in public life is guilty of an offence and liable on summary conviction to a fine of two hundred and fifty thousand dollars and to imprisonment for a term of ten years; and where the offence involves the deliberate non-disclosure of property the Court may, in addition,
(a) where the property involved is situated in Trinidad and Tobago, declare that it be forfeited to the State;
(b) where the property involved is situated outside of Trinidad and Tobago, order that an amount equivalent to the value of the property (the value to be assessed as directed by the Court), be paid by the person in public life to the State.
Now, that is dissuasive punishment and for non-disclosure merely besides.
The unprecedented 30-0 victory by the Barbados Labour Party (BLP) at the polls on 24 May 2018 created a Constitutional crisis UNTIL St. Michael West M.P. solved the problem by agreeing to be Leader of the Opposition.
Events to date confirm that the decimation of the Democratic Labour Party (DLP) caught even the BLP leadership by surprise- tinkering with the Constitution – always a messy business – with a basket of pressing issues to confront from Day 1 is not what Prime Minister Mia Mottley has the appetite for at this time.
In the short term Atherley has made the sacrifice to cross the floor to assume the Leader of the Opposition role. His monthly salary will jump from 60K to 129K per annum but this is the smaller issue. He has averted the need for Mia to tangle with the issue of making deep amendments to the Constitution of Barbados at an early stage in her administration. Ask yourself, which member of parliament crosses the floor after one week of being elected without first declaring his grievances to his constituents and the wider public as a matter of courtesy?
Atherley’s decision to assume the Opposition role is obviously strategic. A ‘sympathetic’ leader of the Opposition in the House of Assembly opens up a pathway for Prime Minister Mia Mottley to attack governance issues, more importantly it removes the nettlesome issue of making significant amendments to the Constitution at an early period in her tenure.
The blogmaster is pleased that the citizens of Barbados have a front row seat to observe the fragility of the democracy we practice exposed. It should be a learning opportunity we grasp with both hands. A past US President Thomas Jefferson is credited with saying that “Eternal vigilance is the price of freedom”. Now more than ever in our history if the democracy we practice is to work as envisaged by the framers of the Constitution, people and stakeholder participation will be critical. The level of apathy and disaffection by citizens is well documented on BU’s pages.
We need to participate in our government in ways we have not done up to now. We hope Bishop Joseph will live up to the biblical meaning of his name.
