Former AG to take Senate challenge as far as CCJ

By Fernella Wedderburn and Kareem Smith

Former Attorney General Adriel Brathwaite will appeal Monday’s High Court decision that the Senate can lawfully meet with 18 appointed members although the constitution makes reference to 21.

Brathwaite’s attorney-at-law Queen’s Counsel Garth Patterson, moments after Justice Cicely Chase dismissed the legal challenge, told Barbados TODAY that his client had every intention of pursuing the matter up to the level of the Caribbean Court of Justice (CCJ).

Patterson also believes that the Mia Mottley administration should continue to delay business in the Senate until the conclusion of the matter.

But Attorney General Dale Marshall, declaring that the decision “clears the way for the business of the Senate to begin”, indicated that the Government has no intention of holding up the process any longer.

During a three-hour judgement handed down on Monday afternoon, Justice Chase ruled that the Senate is free to meet with the 11 Senators nominated by Prime Minister Mia Mottley and seven others appointed at the discretion of President Dame Sandra Mason.

The High Court judge also held that President Mason was well within her right to convene Parliament under the circumstances.
Based on the ruling, the Prime Minister is free to proceed with constitutional amendments to facilitate the appointment of 18-year-old Khaleel Kothdiwala and two DLP nominees to the Senate.

“We are obviously disappointed with the decision and we intend to appeal,” Patterson told Barbados TODAY.
“[Justice Chase] ruled against us on all of the points and so we are going to appeal…I expect by the end of the week we’ll have an appeal,” he added.
In a statement released shortly after the reading of the judgement, the AG said he was delighted at the decision, including the fact that it was handed down five weeks after being brought against the Government.

Marshall said despite the ruling administration’s confidence that the Senate was properly constituted, citizens have the right to “test” Government’s decisions in court.

“We have more than ably met that challenge brought by Mr Brathwaite, a former Attorney General, and this decision clears the way for the work of the Senate to begin in this Parliamentary term,” he declared.

“There are several new senators who are chomping at the bit to participate in national debate through the work of the Senate, and are now free to do so without pending court proceedings clouding the integrity of the sittings of that Upper House,” he added.

On the other hand, Patterson maintains that the matter should be “fully” resolved before the business of the Senate is undertaken.

“The position we’ve taken from the outset is that the Senate is improperly constituted and if we are right, then it means that anything that the Senate or the Parliament does between now and when the matter is ultimately decided will be unconstitutional and null and void, assuming that we are right,” said the senior attorney.

“I am assuming that if we are successful at the Court of Appeal, the other side will appeal it and if the other side succeeds then we will appeal it to the CCJ.

So it will likely end at the CCJ either way.

Earlier in the High Court, Justice Chase stated that Brathwaite’s argument that 21 persons must be appointed before the Senate can convene was “a very narrow interpretation” of Section 36 (1) of the Constitution.

“In other words, Section 36 (1) cannot stand on its own and there has to be a purposive and contextual approach to what is intended by the framers of the Constitution.

I do not accept the applicant’s argument that a vacancy could only arise after the 21 persons have been appointed. . . . I view it that the business of each House and, more importantly in this instance, the Senate, is allowed to continue in light of and in spite of the vacancy.

“The applicant’s argument that 21 Senators must be appointed by the President before the Senate can be properly constituted is . . . not accepted by this court and is rejected in the face of considerations of other sections of the Constitution,” the judge added.

She further stated that there are “no regulations” in Section 36 (1) or “any part” of the Constitution prohibiting the President from commencing Parliament as she did without the maximum number .

“The Constitution has to be taken in its context and indeed not out of context and there is no provision preventing the Senate from convening with the numbers of Senators less than 21. The Court also, therefore, finds that the President properly convened the Parliament on February 4, 2022, and within the timeframe stipulated for convening the first session, as she did so with 18 senators which properly allowed as the business of the Senate is to be conducted in spite of the fact that a vacancy or vacancies exist,” Justice Chase said.

Pointing to the appointment of two opposition senators under Section 75, Justice Chase stated that there is no Leader of the Opposition and as such “no guidelines” are available to the President for her consideration as to how this appointment should take effect.

The Mottley administration went to Parliament to make amendments to the Constitution to allow the Democratic Labour Party (DLP), as the party with the secondhighest number of votes in the general election although having won no seats, to select two senators; and to allow persons to be members of the

Senate from the age of 18, to facilitate Kothdiwala’s nomination to the Upper House.

“The President is perfectly at liberty to seek guidance by waiting for [the] Constitutional amendments which will seek to guide her.

This Court rules that she has done nothing wrong in seeking the guidance on waiting for the passing of legislation on the same,” Justice Chase said.

“The Court finds that having regard to the passing of the Bill on February 8, that any law so passed is not unconstitutional, invalid or null or void in light of the interpretation given to Section 36 that the Senate was properly constituted and therefore is entitled to conduct business notwithstanding the vacancies.”

On the issue of immunity granted to the President pursuant to Section 34 (1), the Court further ruled that it had “no power or jurisdiction to have the

President appear before it to answer any of the claims of the applicant, including the claims that she acted arbitrarily . . . or had an improper exercise of her discretion or exercise her powers unreasonably”.

She said the court also took into consideration the Constitutional Amendment Act 2021, Section 34 (g) (6).
“. . . . The President is exempted from suit relative to any actions . . . it is clear that any acts taken or done by the President cannot be looked into unless they are unlawful.

Absolutely no evidence has been forthcoming that the president has acted unlawfully,” she stated.

In light of that ruling, she said the oral application made by Brathwaite’s attorneys – Patterson, Michelle Russell and Rico Yearwood – for the AG to be cross-examined on his two affidavits was denied.

“ . . . The president cannot be brought before a Court and is immune and her representative being the respondent (the AG) is not in a position to respond to any questions which may arise as a result of her actions or omissions,” Justice Chase added.

The substantive arguments of the constitutional motion are set to go before the court on April 12.

The State was represented by Queen’s Counsel Leslie Haynes, Roger Forde Q.C., Alrick Scott Q.C., attorneys Gregory Nicholls and Kashawn Wood, Kaila Headley 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., Sherica Mohammed Cumberbatch and Jason Wilkinson.

fernellawedderburn@barbadostoday.bb

kareemsmith@barbadostoday.bb