Lawyer says no part of constitution allows for PM’s overture to DLP

A senior attorney at law is baffled as to what part of the Constitution the government’s legal advisers are using to guide Prime Minister Mia Mottley in offering the Democratic Labour Party (DLP) two Senate seats.

On Wednesday, the Prime Minister said she had received a legal opinion that cleared the way for her to offer the seats in the Upper Chamber to the party receiving the second-highest votes in the January 19 general election, which her Barbados Labour Party (BLP) won 30-nil, in circumstances where there was no Opposition Leader to choose them.

The DLP has already rejected the offer, saying there is no legal basis for it.

Queen’s Counsel Garth Patterson, in an interview with Barbados TODAY on Thursday, said the Prime Minister would have to point to the portion of the Constitution that gives her the authority to make such an offer.

“What I found strange is that she said she took the advice from the Attorney-General and she was now happy to make the offer. I don’t know if that is political gamesmanship or if she genuinely believes she has the right. I don’t think that is the case. There are powers that are conferred by the Constitution. If they are not conferred on you, you can’t exercise them. So she would have to point to the provision of the Constitution that says she has the right to choose these two senators,” the constitutional expert said.

“The power to appoint the two Opposition Senators, for want of a better word, rests with the President acting on the advice of the Leader of the Opposition. If you don’t have a Leader of the Opposition, then the Constitution says that the President must act on her own discretion. So, it means that without a Leader of the Opposition she gets to appoint nine people [seven independents and two oppositions], and the Prime Minister gets to appoint 12 to make 21.

“So she, [Mottley] only has the ability to influence the appointment of the 12 senators who can only be appointed by the President acting on the recommendation of the Prime Minister. She doesn’t have a broader discretion to weigh in on who the Opposition senators should be. And if there is no Leader of the Opposition then that discretion rests exclusively with the President without reference to the Prime Minister,” the Queen’s Counsel declared.

Patterson, a Senior Partner with Lex Caribbean, Attorneys-at-law, also weighed in on the government’s proposed amendment to the Constitution to allow 18-year-old Barbados Scholar Khaleel Kothdiwala to sit in the Senate.

“Section 49 of the Constitution provides that it can only be amended by an Act of Parliament passed by both Houses. The Senate is not properly constituted unless all 21 senators have been appointed.  Until then, it cannot lawfully conduct business, and cannot pass legislation,” Patterson explained to Barbados TODAY.

“Consequently, the proposed Constitutional amendment can only occur after the Senate is constituted by the appointment of all 21 Senators.”

The prominent lawyer said the way to get around this challenge is for the Government to choose a temporary senator.
emmanueljoseph@barbadostoday.bb