Constitutional law expert rubbishes Franklyn’s claim

A constitutional and public law expert has described as absolute nonsense a claim by former Opposition Senator Caswell Franklyn that Prime Minister Mia Mottley acted unlawfully when she appointed more than one minister in her Cabinet to some ministries.

Franklyn, who is the general secretary of the Unity Workers’ Union (UWU), said earlier this week that Barbados’ laws do not make provision for two ministers to be appointed to a single ministry and he deemed the appointments to be an unconstitutional development.

“The Constitution requires that there is a minister in a ministry and if the minister needs help, he is helped by a Parliamentary Secretary, not by another minister. These ministers have no portfolio you know. They don’t have any responsibility; they can’t sign off on anything,” he declared.

In addition to questioning the multiple ministers per ministry, such as Ryan Straughn being named Minister in the Ministry of Finance and Economic Affairs and Sandra Husbands being appointed Minister of State in the Ministry of Foreign Affairs and Foreign Trade, Franklyn also took issue with Mottley’s decision to name four senior ministers apart from Deputy Prime Minister Santia Bradshaw.

But on Friday, noted attorney-at-law Gregory Nicholls, who’s been a part-time lecturer/tutor in Public Law and Constitutional Law at the University of the West Indies (UWI), Cave Hill Campus rebuffed Franklyn’s statement and cautioned Barbadians “not to be misled by persons who do not know that they don’t know”.

“There is no provision in the Constitution that prescribes the appointment of a single minister to ministries in Barbados. So that, to say that the Prime Minister is acting unconstitutionally is incorrect. You cannot cite any provision that requires the appointment of a single minister to the ministerial portfolios determined by the Prime Minister from time to time,” Nicholls, who holds a Master’s Degree in Public Law and Constitutional Law, told Barbados TODAY.

“In fact, the practice and, dare I say, convention in Barbados and other Commonwealth jurisdictions is that the Prime Minister determines ministerial portfolios, the combination of those ministerial portfolios, the names and designations of those portfolios from time to time, without any direction or mandate as prescribed in the Constitution,” he argued, adding that the Constitution also does not prescribe what ministries should be constituted in Cabinet.

“Various statutory enactments in Barbados make references to the powers and duties of ministers and responsibilities of ministers. So that you can have the Education Act, the Housing Act, the Road Traffic Act refer to ‘the minister’. So that in the setting up of the Cabinet, the structuring of the Cabinet, the Prime Minister is free to allocate ministerial responsibility to whatever minister and in what combination in the best determination of the prime minister that decision is made.”

Nicholls, who has been practising law for the past 22 years, said the Constitution only speaks specifically to the appointment of an Attorney-General.

“Section 72 of the Barbados Constitution provides for the President, acting in accordance with the advice of the Prime Minister, to assign ministerial responsibility for any business of the government, including the administration of any department of the government. The only proviso is that one such minister who has been styled the Attorney-General, shall be assigned functions of principal legal adviser to the government,” the attorney said.

“So that there is nothing in Section 65, there is nothing in Section 62 of the Barbados Constitution that says a Prime Minister must only be allowed one ministerial allocation per ministry. So this statement that it is unconstitutional is absolute nonsense and the public should not be misled by persons who do not know that they don’t know.”

The attorney also expressed concern about the level of “misinformation” being allowed to pass as fact in the public space.

“We have a responsibility to put information out in the public space that is accurate and not put your opinion about what the law says or what the Constitution says. And too many times people are speaking about things that are constitutional, but yet saying that it is unconstitutional without going to the Constitution text or the Constitution conventions,” he said.

Nicholls added: “The courts have held that there are certain conventions, there are certain norms of the Constitution, there are certain rights that are not written in the text of the Constitution, but those customs, norms and those rights will be afforded every protection by the court because, without those things, the Constitution would not be what it is. For example, you would not find the phrase, ‘the separation of powers’ within the Constitutional text as an enforceable provision that sets about how the structure of government should be designated, but we understand the separation of powers as an important principle in a democracy,” the constitutional law expert submitted.
emmanueljoseph@barbadostoday.bb