#BTColumn – Our ‘Senate’ improperly constituted

Disclaimer: The views and opinions expressed by the author(s) do not represent the official position of Barbados TODAY. 

by Garth Patterson

“As a core constitutional and democratic value and principle, the rule of law mandates the principle of legality – the requirement of ‘government according to law’”: Hon. Mr Justice Jamadar, Judge of the Caribbean Court of Justice.

Section 36 of the Constitution unambiguously declares: “The Senate shall consist of twenty-one persons who, being qualified for appointment as Senators in accordance with the provisions of this Constitution, have been so appointed in accordance with the provisions of this section.”

It provides that the 21 Senators must be appointed by the President, 12 of whom are appointed in accordance with the advice of the Prime Minister, 2 on the advice of the Leader of the Opposition, and 7 independent senators are appointed in the discretion of President.

The Senate is not an abstract constitutional concept; rather, it is a legislative body, comprised of a collective of 21 persons, that has life breathed into it, and whose existence and purpose are defined, by the provisions of the Constitution.

It has a definite lifespan that begins when it is duly constituted in accordance with section 36 and terminates on the dissolution of Parliament.The lifespan of the last Senate in Barbados was ended on December 27, 2021, when the President, acting on the advice of the Prime Minister dissolved Parliament.

The functions, powers and procedures of the Senate are provided for in the Constitution, whose provisions must be read within the context, and against the backdrop, of a duly constituted Senate having come into being.

The starting point of any analysis, therefore, must logically be: when and how is the Senate duly constituted – when does it come into being? The answer is to be found in section 36 alone, which prescribes both the how and the when.

The Senate is constituted by appointing the requisite number of persons (21) as Senators and it becomes a Senate when those persons “have been so appointed in accordance with the provisions of” section 36. All 21 Senators must be appointed by the President by instrument under Public Seal.

Until 21 persons have been so appointed, then there is no “Senate”, within the meaning of section 36. And any business purported to be conducted by the Senate so improperly constituted will be null and void.

Moreover, the Constitution mandates that the first order of business of the Senate shall be the election of its President and Deputy President.The office of President and Deputy President must be elected by “the Senate”, meaning all 21 of its members.

An election to any such office can only be valid if every person who is entitled to be appointed as Senator has an opportunity to participate in the election. If the Senate is (improperly) constituted with only 18 Senators, then the eventual occupants of the seats in respect of which appointments are outstanding will clearly be disenfranchised and unconstitutionally excluded from this important constitutional process. Of course, this Government is no stranger to that concept.

The Government and its surrogates have, in response to my remarks in the press on this issue, suggested that it is “rubbish” and “simplistic” to assert that a Senate must consist of 21 persons. If they are correct, then the Constitution itself is a simpleton, because that is what it states, in plain, unequivocal, simple language.They point to section 50(2) of the Constitution and argue that it lends validity to a Senate that comprises less than 21 persons.

That section states that each House (i.e., the House of Assembly and the Senate) may act notwithstanding any vacancy in its membership.But that section must be read in conjunction with section 36 and section 39(1), which deals with the tenure of the seats of Senators and outlines the circumstances under which vacancies in the Senate might occur.

It declares, “The seat of a Senator shall become vacant…”, then lists the circumstances under which a senate seat becomes vacant, including “upon the next dissolution of Parliament after he has been appointed.”

Until the Senate is duly constituted, there is no Senate, and the provisions regulating its powers, functions and procedures are not, therefore, engaged.As a matter of common sense, and in this special constitutional context, a Senate seat cannot “become vacant” unless and until a person has been appointed to sit in it. The fallacy of the Government’s argument is that a Senate may be constituted by appointing 18 persons, and that the actions of a Senate so constituted are validated because the unfilled seats are “vacant” seats for the purposes of section 50(2).That argument flies in the face of the clear language of the Constitution, which does not state that the Senate may consist of “up to”, or “no more than”, 21 Senators.

It states, the Senate “shall consist of 21 persons” (no more, no less).This is the language that constitutes the Senate – defines what a “Senate” is and how it must be composed. Until that magic, constitutionally mandated, number of 21 is achieved, no Senate comes into existence.

If there is no properly constituted Senate, then the provisions governing the procedures of the Senate, such as section 50(2), can have no application. That provision, like the section providing for a quorum, may only be engaged after the Senate has had life breathed into it.

Hence, a Senate that was properly constituted from inception may nevertheless continue to function notwithstanding a vacancy in its membership that is created in the circumstances outlined in section 39(1), or by other circumstances not specifically mentioned, including debilitating illness or death.

It may conduct business even though all its members are not present in the chamber, provided there is a quorum of eight senators besides the President.These provisions all contemplate, and assume, for their valid operation, that a Senate has been duly constituted, and has come into being, in accordance with section 36.

Then there is the misinformed suggestion that the Government may amend the Constitution by way of an Act of Parliament passed by both Houses, even though the Senate only has 18 members. The power to amend the Constitution is conferred by section 49, which requires that for a Bill for the amendmentof the Constitution to be passed, it must be supported by the votes of not less than a simple majority, or in some instances, a special two-thirds majority, “of all the members of the House.”

So, for example, the proposed amendment to reduce the age qualification for Senators to 18 years, requires the votes of not less than two-thirds of all the members of the House. This phrase is to be contrasted with the language used in section 53, which states that all questions proposed for decision in the Senate shall be determined by a majority of the votes of the members thereof “present and voting”.

A majority of all the members of the Senate is a different creature from a majority of the members present and voting.This means that the special majority required to amend the Constitution must be achieved by the voting of all the members of the Senate. If the Senate must consist of 21 Senators, then any proposed constitutional amendment that is approved by a majority of some lesser number of duly appointed Senators will be unconstitutional, null and void.

As a fundamental precept, it is imperative that, in the discharge of its mandate to govern, this Government unconditionally adheres to the rule of law. The Constitution, as our supreme law, is the fountain from which the rule of law springs; and that perverse, unlawful creature that was spawned by the appointment of a rabble of 18 Senators, which the Government now seeks to pass off as our Senate, lacks any constitutional legitimacy.

Its existence, and any purported actions taken by it, including the solemn and consequential enactment of amendments to our Constitution, is repugnant to, and violates, the Constitution and the rule of law and the Government’s attempt to foist it upon us should be roundly condemned by all right-thinking Barbadians.

We deserve more than a Government by whim and fancy – we should demand one that is uncompromising in its commitment to the rule of law. As the new government of our nascent Republic, it must do better than that.

Garth Patterson Q.C. is a Senior Partner of Lex Caribbean. He was called to the Bars of Jamaica and Barbados in 1987 and the Bars of New York and St Lucia
in 1990 and 2011 respectively.