Attorney says President’s decision not to appoint opposition senators must be questioned

Queen’s Counsel Garth Patterson is insisting that the High Court must seek to find out why President Dame Sandra Mason has not executed her duty to appoint opposition senators to the Upper House.

He said on Wednesday that the Constitution outlines “a clear power to act” in selecting the opposition senators and the President should be scrutinised for failing to exercise that power.

Patterson stated that position as he put forward issues on points of law that he considers the court should deal with, in the lawsuit challenging the composition of Barbados’ Parliament on the basis of an incomplete Senate.

The Queen’s Counsel along with attorneys Michelle Russell and Rico Yearwood are representing former attorney general Adriel Brathwaite Q.C. in the civil matter being heard virtually before Madam Justice Cecily Chase Q.C.

Brathwaite is asking that the President’s decision to reconvene Parliament be quashed. Since Parliament resumed back in February all but three of the 21 senators have been appointed, with Prime Minister Mia Mottley hoping to appoint an 18-year-old to the Upper House and have the party that won the second largest number of seats in the January 19 polls, the Democratic Labour Party, make two selections.

Patterson contended on Wednesday as the matter continued in case management, that the President has a duty to appoint 21 senators; a discretion as to who the seven independents senators are; and a discretion by virtue of Section 75 of the Constitution as to who the two opposition senators will be.

“There is a clear power to act. There is a clear duty imposed by Section 62 (2). There is . . . a clear discretion to choose from all the people out there that represent opposing views to the Government, two people to represent the opposition voice in the Senate. That is what the discretion is, not whether to appoint but who to appoint,” he argued.

He charged that the Prime Minister had “announced that ‘notwithstanding that the President has this power, I am going to take it away from her and I am going to put it in the hands of the opposition party, whoever that is’.”

Patterson maintained that the discretion vested in the President has not been exercised while the power and the function had not been performed.

“We say that there is a legitimate question that follows – why not? What is . . . the reason why the President has failed to discharge that function? It speaks to itself. The fact that the President has not exercised that function in relation to the opposition senators when she has long ago appointed the so-called independent senators, demonstrates not that there was not opportunity, not that there was not the power, but there is something that has prevented the President from performing that duty. It is a legitimate inquiry for this court to determine what that thing is and was it lawful. Was it lawful for the President not to exercise that discretion? That is a matter that is well within the province of these courts in the exercise of its supervisory jurisdiction,” the senior attorney argued.

Charging that the Senate was not properly constituted as prescribed under Section 36 of the Constitution of Barbados, Patterson further argued that the actions of the President were open to scrutiny.

“Immunity is a right that is personal to the President, which protects the President from being called before the courts. It doesn’t protect actions. The actions of the President are open to scrutiny in appropriate cases, regardless of whether the President herself has immunity and regardless of the language of the Constitution that seeks to oust the jurisdiction of the court in appropriate cases.

“The court has pursuant to its supervisory jurisdiction, the clear power to review the actions or omissions of the President,” he said, adding that it was beyond question that the court has the requisite jurisdiction and power.

“ . . . . Our courts are uniquely placed to look into the question as to whether or not constitutional powers have been properly exercised,” he said.

The attorneys representing the Government’s interest will respond and put forward their issues on points of law when the case management continues on Friday.

The state’s legal team consists of Queen’s Counsel Leslie Haynes, Roger Forde Q.C., Alrick Scott Q.C. and Gregory Nicholls along with Simone Scott from the Attorney General’s Chambers, with instructing attorneys from the chambers of Carrington & Sealy represented by Dr Adrian Cummins Q.C., Shericka Mohammed-Cumberbatch and Jason Wilkinson.

fernellawedderburn@barbadostoday.bb