Former Attorney General Adriel Brathwaite has gone to the Court of Appeal, asking it to set aside the entire ruling of High Court Justice Cicely Chase who earlier this month gave the go ahead for the Senate to meet and to do business.
The March 14 decision of Justice Chase dealt a blow to Brathwaite’s contention that the Upper Chamber doesn’t have the required numbers to be properly constituted.
In a 13-page notice of appeal lodged on Monday through Brathwaite’s lead attorney Garth Patterson Q.C., the court is being asked to stay the proceedings in the High Court, pending the hearing and determination of the appeal.
If this request is granted, it could mean the suspension of the Upper Chamber while the appeal is being heard.
Today however, Attorney General Dale Marshall, who is the respondent in the case, said that Government was ready to fight the appeal, but had no intention of suspending the business of the Senate because a challenge to the High Court decision had been filed.
Patterson filed the notice of appeal against Justice Chase’s ruling, which, among other things, dismissed the appellant’s argument that the Senate is not properly constituted under Section 36 of the Constitution of Barbados.
The judge had also rejected his claim that it was necessary to appoint 21 Senators before the Upper Chamber could be properly constituted.
The Madam Justice also ruled that President, The Most Honourable Dame Sandra Mason, had the power to, and did properly convene Parliament with 18 Senators; that she was under no duty to appoint 21 Senators before convening Parliament, and that a Senate consisting of 18 members may pass legislation amending the Constitution.
But the appellant has submitted 12 grounds with 26 subsections to try to convince the Appellate Judges that Justice Chase erred in her whole ruling.
The former Attorney General is contending that going on the contents of Section 36 of the Constitution of Barbados, a Senate was not properly constituted until 21 persons had been appointed as Senators by the President.
The applicant is also insisting that after the dissolution of Parliament, no new Senate comes into existence until 21 Senators are appointed in accordance with Section 36 of the Constitution.
“The learned judge erred in law in deciding that a Parliament and, by extension the Senate, does not cease to exist after a Parliament is dissolved; and/or a Parliament cannot be validly constituted unless each of its constituent bodies is properly constituted,” Brathwaite stated in another ground.
The former AG also wants the Court of Appeal to order the Government to pay all his costs incurred during the proceedings in the High Court as well as in the upcoming appeal.
The applicant is also urging the Court to make an order that the appeal be heard expeditiously and that time be shortened as necessary to facilitate a speedy hearing.
“We will of course be resisting the appeal and our legal team has been on stand-by to begin work on this next stage of the case. They would only have been waiting to have the Notice of Appeal served on them and this has happened,” Attorney General Marshall told Barbados TODAY.
“The Senate has been meeting and will continue to meet to do the work for, and on behalf of the people of Barbados. There is no sense in which we will allow the fact that an appeal has been filed to stymie the work of government,“ the AG declared.
Meanwhile, the government has filled its last remaining Senate vacancy with the naming of well-known attorney-at-law Gregory Nicholls, who was sworn in this morning at State House by President Dame Sandra Mason.
Nicholls took the spot previously earmarked for teenage nominee Khaleel Kothdiwala who was unable to take up a place in the Senate without a change to the Constitution to amend the age stipulation. Prime Minister Mia Mottley withdrew the proposed amendment to the Constitution when it was indicated that the measure would not be supported by enough Independent senators to make up the required two-thirds vote in the Upper Chamber.
President Dame Sandra is likely to name the final two independent senators later this week to complete the full slate of senators in this current parliament.
In a separate statement earlier today, former AG Brathwaite said while he was “heartened” by the courage of the five independent senators who spoke up against the “undemocratic overreach” of the Government by resisting an attempt to once more implement major constitutional amendments to entrenched provisions “without consultation with citizen stakeholders”, there is much more work to be done.
He added: “It is vital that this unnecessary constitutional crisis, one created by the Prime Minister of this country should never again be repeated.
“The question whether the Senate is properly constituted with less than 21 senators remains unsettled, despite the ruling of the High Court and despite the signals sent by the Government that the remaining senators will soon be appointed,” Brathwaite stated.
He said that these are matters for which there is an urgent call for certainty, which will only come when the highest court, the Caribbean Court of Justice, adjudicates on them.
emmanueljoseph@barbadostoday.bb
