Motion argues Parliament not fully constituted

A constitutional motion has been filed in the Supreme Court, calling for a declaration that the Parliament of Barbados is not properly constituted because all 21 members of the Senate have not been appointed.

The 24-page suit which was lodged in court on Wednesday by attorneys Michelle Russell and Garth Patterson, Q.C. on behalf of former Attorney General Adriel Brathwaite Q.C, asks the court to quash the decision of President Dame Sandra Mason to reconvene Parliament.

The motion came a day after the House of Assembly passed the Constitutional (Amendment) Bill 2022, which reduces the age eligibility for membership of both Houses of Parliament – the House of Assembly, referred to as the Lower House, and the Senate, the Upper House – from 21 to 18 years and provides for the political party with the second-highest number of votes in an election to appoint two senators when there is no Leader of the Opposition who would usually appoint them.

The Senate was scheduled to meet today but it was not convened.

Only 18 of the 21 legislators that comprise the Upper House have so far been appointed, with Prime Minister Mia Mottley awaiting the passage of the constitutional amendment to appoint the final government senator, 18-year-old Khaleel Kothdiwala, and the two opposition senators still to be identified and sworn in.

Brathwaite, who served as Attorney General in the previous Democratic Labour Party (DLP) administration, wants the court to declare that because the Senate is not properly constituted under Section 36 of the Constitution and has therefore not come into existence, the Parliament cannot, therefore, be lawfully formed either.

In a statement issued ahead of the filing of the suit, Brathwaite sought to make it clear that his legal action against the Attorney General of Barbados in his capacity as the government’s principal legal adviser, was not being taken on behalf of any political party.

He said he was acting in his capacity as a former Attorney General “and as a private citizen who is deeply committed to the notion that our government must be according to laws”.

“I wish to make it clear that I am not bringing this action on behalf of any political party with which I may have previously been affiliated,” Brathwaite said.

“My action is guided by my profound desire to ensure that our republic remains a democracy. I place my confidence in the Courts, as the guardians of our Constitution, to resolve this pivotal and consequential constitutional crisis.”

His motion notes that in the absence of an Opposition Leader due to the 30-0 clean sweep by the Barbados Labour Party (BLP) at the recent polls, the President has the “power and duty” at her discretion, to appoint two opposition senators.

Brathwaite is therefore urging the court to declare that Dame Sandra’s decision and/or failure not to appoint two senators pursuant to Section 36 (3) of the Constitution, was arbitrary, unreasonable and/or irregular and/or an improper exercise of her discretion, an abuse of power, and a breach of the Constitution, thus making her actions invalid, null and void.

Another element of relief being sought is a declaration that the President’s decision to appoint February 4 as the date for the commencement of the current session of Parliament, pursuant to Section 60 of the Constitution and before the appointment by her of all 21 senators in accordance with Sections 36 (1) and 62 (2), “was an arbitrary, unreasonable and/or irregular and/or improper exercise of discretion and/or an abuse of power and/or was made in contravention of Section 36 of the Constitution and was accordingly invalid, null and void”.

The judge has therefore been asked to quash the President’s decision.

Brathwaite is also seeking a declaration that any business which the Senate and the House purported to transact, including enacting any laws, is unconstitutional and, therefore, invalid, null and void.

The applicant also submitted an alternate claim which requests a declaration that the Senate, as presently constituted with 18 members, has no power to pass a Bill for an Act of Parliament that alters the Constitution; and that any Act of Parliament so passed is unconstitutional and therefore invalid, null and void.

Citing 19 grounds on which relief is being sought, Brathwaite argues that the last Senate ceased to exist on the dissolution of Parliament on December 27, 2021, and a new Senate consisting of the full complement of 21 members must be constituted and brought into existence before the Senate may meet.

Two other grounds outlined are that the President is required under the Constitution to appoint Senators soon after every general election, and that while she is mandated to appoint 21 Senators in all, only 11 have been put in place acting on the advice of the Prime Minister.

“The 12th Senator whom the Prime Minister is entitled to select has not yet been nominated or appointed. By virtue of Sections 36 (3) and (4) and Section 75, the President is entitled to appoint all remaining nine senators but has only appointed seven of them.

“The President’s failure to appoint the two [Opposition] senators amount to the wrongful abdication of her constitutional duty to proceed under Section 36 to the appointment of all senators as soon as may be after every general election.

“In any event, it is an implied requirement of the Constitution that the President would not exercise her discretionary powers under Section 60 (1), unless and until all 21 senators had been appointed by her. By convening Parliament prematurely, the President has contravened the provisions of the Constitution,” the motion stated. emmanueljoseph@barbadostoday.bb