Constitutional lawyer says neither Upper nor Lower House can meet

There is uncertainty about the ability of this country’s Parliament to begin carrying out the affairs of the state, without all 21 senators referenced in Barbados’ Constitution appointed and in place.

On Wednesday, Dame Sandra appointed seven independent senators to join the 11 senators selected by Prime Minister Mia Mottley, leaving three controversial senate seats still vacant. They are the two opposition seats, which cannot be nominated according to custom without a sitting opposition leader and an outstanding government seat which the Mottley-Government has indicated, has been reserved for 18-year-old Khaleel Kothdiwala.

Nevertheless, constitutional law expert Garth Patterson Q.C. sees nothing unusual about Dame Sandra’s delay in naming two opposition senators.

He maintains that the president has total discretion to appoint them, but believes the process may require a more measured approach that includes consultation with various political parties.

“She is not obliged to act on the advice of any of those persons,” Patterson told Barbados TODAY.

“There is nothing that precludes her from seeking out the advice of others and it doesn’t have to be a political party or a politician. She could take her advice from whichever sources she feels are appropriate, that will uphold the constitutional function that she has to perform and honour the spirit of the constitution.

“So it may be that she is taking the time to deliberate on the matter before announcing her selection, but there is no mystery. It is her job, it is her discretion, it is her function under the Constitution and she has to exercise it and she will in due course,” the Queen’s Counsel added.

In the meantime, Patterson is adamant that the Senate cannot meet until the process of appointments is completed, potentially delaying the business of the two houses of Parliament.

“The Constitution says there shall be a senate consisting of 21 senators. So until you have 21 senators, you don’t have a Senate,” said Patterson.

“The Constitution doesn’t specify a timeline for [the President] to do it, but presumably to ensure that the business of the country is conducted in regular order, she will perform that function in the very near future.”

But he added that even if the President nominates the two opposition senators, PM Mottley is yet to nominate one more senator. According to Patterson, the nominee cannot be 18-year-old Khaleel Kothdiwala, who, though touted by the Prime Minister is too young, according to the law of the land.

“The Prime Minister has to nominate a 12th person for the senate to be constituted. I have no doubt that they will do so, because the same amendment that is called for to allow an 18-year old to sit in the Senate, that amendment cannot occur unless the Senate is constituted to be able to pass the law amending the constitution,” said Patterson.

“It’s a chicken and egg situation. You want to put in an 18-year-old, but you have to amend the Constitution to do so, but to amend the constitution, you need to appoint 21 senators,” he reiterated.

Meanwhile, veteran pollster and political analyst, Peter Wickham, is not convinced that the President has the power to independently choose the opposition senators.

He described the period as a constitutional disagreement regarding the choice of Opposition Senators where the BLP’s lawyers believe a constitutional amendment is necessary while the DLP believes the power rests solely with the president.

As such, Wickham favours Prime Minister Mia Mottley’s invitation for a meeting with the Democratic Labour Party to discuss the way forward.

“While the Garth Patterson and Trisha Watson argument is compelling, the fact of the matter is that neither of them is in government currently and I think that we have to follow the inclination of the government in this matter and wait until such time as the parties meet,” said Wickham.

“This leaves us in a interesting situation where the DLP is saying that they are not meeting with the Prime Minister to decide on anything because the president is the one who has to advise. And, the Prime Minister is basically saying that they need to advise the President based on a meeting and conversation that they will have and I think it may come to a situation where the two seats are taken up by whichever opposition parties are willing to come forward,” the pollster added.

Wickham said it was even more unclear whether either of the Houses can meet without all senators being appointed.

“But on the other hand, one can argue that Parliament is fully constituted because all of the principal advice makers have met and offered their advice, so then they can go about and do their business because it is fully constituted,” said Wickham.
kareemsmith@barbadostoday.bb