AG’s legal team rubbishes claims that all 21 senators needed for Parliament to be valid

The Attorney General’s legal team fighting a lawsuit challenging the constitutionality of the current Parliament has argued that the legislative business of the country should not come to a halt because of a vacancy in the Senate.

The lawyers have also contended that the arguments put forward by opposing counsel to support the claim that the Senate is not property constituted are “legal gymnastics”.

Legal representatives for Attorney General Dale Marshall Q.C. and lawyers for former attorney general Adriel Brathwaite – who is contending that with only 18 of 21 members appointed, the Senate and, by extension, Parliament is not properly constituted – on Friday concluded ventilating preliminary issues on points of law that they want Madam Justice Cicely Chase Q.C. to take into consideration in the matter.

The lawsuit which is being heard virtually is at the case management stage.

Brathwaite’s team of lawyers, led by Garth Patterson Q.C. that also includes Michelle Russell and Rico Yearwood, has argued that Section 36 of the Constitution specifically states that the Upper House “shall” consist of 21 members.

“That’s an absolute number and it really doesn’t admit any debate whatsoever; 21 is 21, it isn’t 18, that must be obvious. The plain and ordinary meaning of the words ‘shall consist of 21’ is that it is 21 not up to, or no more than, or maximum of; it is 21, period,” Patterson contended earlier this week.

However, Alrick Scott Q.C, one of the Attorney General’s lead lawyers, on Friday argued that other sections of the Constitution must be taken into consideration.

He charged that Patterson’s argument “requires legal gymnastics” to exclude Section 39 (1) (a) of the Constitution from the meaning of the words “any vacancy” in Section 50 (2).

Scott said the meaning given to the section by his team was that each House of Parliament “may act notwithstanding any vacancy in its membership”.

“The plain meaning of Section 50 (2) is that the Senate is properly constituted and can exercise its powers and perform its duties notwithstanding that there are fewer than 21 members appointed to the Senate.

“ . . . By Section 50 (2), the Senate can be properly constituted by an indefinite number of persons – say 18, 19 or 20 – the maximum number being the mandated maximum of 21 set by Section 36 (1) and the minimum set by the quorum provision of the Constitution, namely eight besides the presiding person,” the AG’s attorney said.

He further argued that the court must have in its mind the purpose of that specific section which, he said, was to enable either House of Parliament to convene and lawfully conduct its business notwithstanding a vacancy.

“Its purpose is that [the] legislative business of the country should not come to a halt because there is a vacancy, however, caused. The caucus can be realised at any time,” Scott said.

The Queen’s Counsel went on to explain that the dissolution of Parliament was directed to the members of the Senate and not the bodies. He said when Parliament is dissolved all the seats are vacated, but the bodies – the House of Assembly and Senate – remain to be filled again in accordance with the composition provisions of the Constitution.

“If as the applicant seeks to argue dissolution, the House of Assembly and the Senate somehow ceases to exist – it begs the question as to what happens to the President, is she to be reappointed? We say this is all part of the legal gymnastics . . .

“It is quite clear that Parliament comes to life again by the first meeting following dissolution . . . . Dissolution brings the proceedings to an end, organs remain; members vacate their seats; the general election is held; meetings held; [and the] proceedings recommence – nothing complicated. You don’t need legal gymnastics to explain that simple principle,” said Scott who added that if Section 50 (2) applied to the first meeting then on February 4 the new session of Parliament was “brought to life”.

Scott is representing the Attorney General along with Queen’s Counsels Leslie Haynes and Roger Forde, and Gregory Nicholls and Kashawn Wood 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