Prominent lawyer at odds with Queen’s Counsel over consequences of Senators’ absence

The Barbados Constitution does not bar Parliament from getting on with the business of the State, even with the appointment of three more Senators still outstanding, an expert in constitutional law has argued ahead of Friday’s opening of the House of Assembly.

In fact, prominent attorney Gregory Nicholls has rubbished suggestions by colleague Garth Patterson Q.C. that Parliament is not constituted until all 21 Senators are in place and this could delay the operation of both houses of the legislature.

“I vehemently disagree with my learned friend’s conclusion,” Nicholls told Barbados TODAY as he suggested that Patterson may have incorrectly merged the provisions set out in Section 35 in the Constitution that speak to the establishment of Parliament as an institution with Section 36 that outlines the composition of the Senate.

“There is nothing that requires the full composition of Parliament to be present on its first sitting in order for Parliament to be thereafter constituted. That is rubbish.

“What Mr Patterson appears to be doing is to conflate Section 35 and Section 36 that it cannot be established unless it is fully composed and that is not how you read the Constitution,” Nicholls argued.

In an interview with Barbados TODAY on Wednesday, Patterson had said: “The Constitution says there shall be a Senate consisting of 21 Senators. So, until you have 21 Senators, you don’t have a Senate.”

But Nicholls rubbished that position, citing Section 50 (2) of the Constitution which outlines that each house may act, notwithstanding any vacancy in its membership.

“This is the critical point here. The Senate shall comprise 21 members – that is under Section 36. Section 50 (2) provides that a vacancy does not prevent the house of the Senate from acting. So that if the opposition senators have not been appointed by the President or if all 12 senators have not been appointed on the advice of the Prime Minister, then that does not prevent the Senate from acting,” he insisted.

The constitutional expert further explained what constitutes a vacancy.

“If we had an unfortunate situation where a Member of Parliament died, the vacancy is filled by an election writ being issued, and an election must be called in 90 days. But let’s say it is not practical to have the election called within 90 days or let’s say that something that is required by the Constitution to be done, like the passage of the Estimates before March 31, you are going to say ‘we are not going to fulfill the constitutional obligation to pass the Estimates of Revenue and Expenditure because there is a vacancy in the House?’

“That is a ludicrous argument and one that does not accord with the provisions of the Constitution when properly considered and Mr Patterson is dead wrong.”

Nicholls was also at pains to point out that there is no provision in the Constitution that the Senate must first be fully constituted before it can act, or that at its first session all members must be present. He cited the quorum for the Upper Chamber that stipulates there must be eight senators plus the President of the Senate to conduct business.

Nicholls said: “It doesn’t say that all 21 must be present at the first sitting and thereafter the quorum shall be eight. You can’t read language into the Constitution that is not there. In fact, if the President is not present, the Deputy President can preside; if the Deputy President is not there, a senator who is not a minister or a Parliamentary Secretary can preside.

“In fact, the Constitution tells us that where there is a vacancy in the Office of the President and a vacancy in the Office of the Deputy President, the Senate is constituted and somebody else can preside over the proceedings of the Senate,” the attorney maintained.

Nicholls sought to drive home his case by noting that the first action of the Senate is to elect a President.

“Are you saying that when the Senate first meets it is not constituted because there is no President? We should not read words into the constitutional text to suggest things that we feel are convenient or expedient for the argument of the day. A vacancy does not invalidate the proceedings of the Senate and there is no requirement that the full composition of the Senate should be in existence at its first sitting.”

An adamant Nicholls further drew reference to the fact that former Independent Senator Alphea Wiggins, who served in the last Senate, was sworn in 117 days after she was named by then Governor-General Dame Sandra Mason.

“Nobody could reasonably argue on reading the Constitution that the Senate was not established and validly constituted because all 21 senators were not present at the first sitting. We can’t ignore the specific provision in the Constitution for a quorum…. All questions proposed for a decision in the Senate shall be determined by a majority of the votes of the members thereof present and voting, that is important,” he said.

Nicholls also maintained that Prime Minister Mia Mottley did not err when she disclosed her intention to initiate an amendment to the Constitution to facilitate the appointment of two senators from the party which scored the second-highest votes in the election, given the absence of an Opposition Leader following the Barbados Labour Party’s second consecutive 30-0 win in general elections.

He made clear that Government is the one to initiate the talks and it is then for the President to act.

“So, the PM is right in her articulation, in her desire to address what is now a repeated circumstance that, in her judgment, affects the quality of the democratic process…. That is the Prime Minister’s judgment and the Government’s decision and determination that this should be addressed by way of constitutional amendment is nothing unusual. There is nothing wrong with the PM suggesting this is the way a constitutional amendment can be framed.

“The President has a discretion to exercise and the President has exercised that discretion so far. There is nothing that is working out of sync, there is nothing that is working improperly,” Nicholls argued.
kareemsmith@barbadostoday.bb