Judge reserves decision in lawsuit challenging makeup of Parliament

A High Court judge has reserved her ruling on preliminary issues in the lawsuit challenging the validity of Parliament.

Lawyers on both sides concluded their submissions before Madam Justice Cicely Chase Q.C. on Friday when the case continued in case management during a virtual sitting that attracted almost 200 members of the public.

Former Attorney General Adriel Brathwaite is asking that the President’s decision to reconvene Parliament be quashed on the basis that only 18 of the 21 senators have been appointed since Parliament resumed back in February.

Prime Minister Mia Mottley is 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 general election, the Democratic Labour Party, make two selections to make up the 21.

“Having heard the submissions of both sides . . . the matter will have to stand adjourned until I give my decision on the preliminary issues as outlined by the parties, and consequent upon that decision we will then go back to other issues to be dealt with in the matter but have not yet been ventilated in this court,” Justice Chase said on Friday.

The judge did not set a date for the delivery of that decision.

On Friday, the court heard submissions on the composition of the Senate and whether or not it is properly constituted.

Justice Chase also heard submissions from prominent constitutional attorney Gregory Nicholls on the issue of immunity of the President. Also representing the Attorney General is Queen’s Counsels Leslie Haynes, Roger Forde and Alrick Scott, and attorneys Kashawn Wood 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.

Earlier this week, Queen’s Counsel Garth Patterson, who is representing Brathwaite along with attorneys Michelle Russell and Rico Yearwood, argued that the actions of the President not to appoint the two senators 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,” he said then.

But in reply, and pointing to several case law, Nicholls submitted that the immunity provision in Section 34 (h) of the Constitution was meant to insulate the President from being required to explain to a court the basis of how she has exercised her functions under the Constitution, where it requires political judgements to be made.

“For example, where there is no Leader of the Opposition where the President has to act in her sole discretion, we submitted that the court should exercise considerable deference to this high office and respect the immunity clause in the Constitution as intended by the framers,” Nicholls said.

He added that the President has important functions under the Constitution, some of which are legal and some political, under which decisions must be made.

It is “not for the court to second guess this discretion” to make an important political constitutional decision – that is, the appointment of opposition senators, Nicholls said.

“It is a power, not a duty in this sense and, therefore, while we accept that judicial vigilance is needed under . . . the rule of law, we contend that judicial deference and restraint is as necessary under the doctrine of the separation of powers,” he argued.

The attorney added that in considering whether the President had abused her powers, “we submit that the court should not abuse its own and, therefore, the court should accord the deference intended by the framers of the Constitution . . . that the President should not be answerable to any court for the exercise of her constitutional functions, particularly when that function concerns a power to make what is essentially a constitutional political decision and not necessarily a legal one in that sense”.

But grounding his argument in case law, Patterson replied: “It is absurd to suggest that the President, because of that immunity clause, is now above the law, is above the Constitution. While the President personally cannot be held before this court, her actions are subject to review . . . . Every person who exists in Barbados under the Constitution is subject to it and the President is no exception.”
fernellawedderburn@barbadostoday.bb