The Barbados Court of Appeal has reserved judgment in the constitutional motion brought against Attorney General Dale Marshall challenging the composition of the Senate following the 2022 General Elections.
The appellate panel comprising Chief Justice Sir Patterson Cheltenham and Justices Jefferson Cumberbatch and Rejendra Narine heard arguments on Thursday from counsel for respondent Marshall and claimant Adriel Brathwaite, a former Attorney General under the Democratic Labour Party (DLP).
Through his attorney Garth Patterson, KC, Brathwaite is contending that when President Dame Sandra Mason convened Parliament, it was not properly constituted according to the Constitution which he argued requires 21 senators. Only 18 had been appointed at that time. “Here you have a situation where the Constitution says the President was required to appoint the senators as soon as [possible] after the election. She did not do so after 79 days, which is unprecedented. So the question is whether or not the President’s actions were in keeping with the letter and spirit of the Constitution,” Patterson told Barbados TODAY at the end of the appeal hearing on Thursday.
“So it is a case where we are saying the Government is not free to act outside of the Constitutional framework. If the Constitution says 21 it must mean something,” the senior counsel added.
Patterson explained that if the Court of Appeal were to rule in his client’s favour, the implications would be far-reaching, since all of the measures and decisions of Parliament which have been passed since then would be deemed null and void and without effect.
But attorney for the State Roger Forde, KC, who is joined by Leslie Haynes, KC in the matter, argued to the appeal justices that the Constitution of Barbados gives immunity to the Head of State from being sued.
“We did our arguments today as to what the section means, and I argued that by virtue of Section 34 (h) of the Constitution the President, as the Head of State, is immune from suit. You can’t sue the President while exercising her functions. And that is going to be a game-changer in the event that the court holds that you can sue the President,” Forde told Barbados TODAY.
He said it is not unusual pointing out that the president of the United States can’t be sued, neither can anybody sue the Queen of England.
“We added that provision to our Constitution that you can’t sue the Head of State. Prior to becoming a republic, our Head of State was the Queen,” the senior counsel noted. “It is my opinion that our Constitution gives her [the President] the same immunity that the Queen had in the UK. This is the gist of what we argued today in addition to Section 35 of the Constitution,” Forde disclosed.
“Section 35 of the Constitution says that a Senate shall comprise of 21, and what we argued was that 21 only dealt with composition. It just says that must be the maximum…You could have a senate without 21.
“What we are saying, the acts of the President are not even reviewable, so the court can’t even do that,” the KC contended. The missing three senators at the time were two from the “opposition” and one initially allocated to 18-year-old Khaleel Kothdiwala whose appointment had to be preceded by a change in the legislation.
Since there was no elected Opposition after the January 19, 2022 General Election, these seats were to be “offered” to the Democratic Labour Party (DLP) as the party with the second highest number of votes in the poll.
When this case went before High Court Justice Cecily Chase, she ruled that the Senate could meet with18 members. She dismissed the preliminary arguments in the constitutional motion brought by Brathwaite.
In a lengthy judgment, Justice Chase deemed that the move by President Dame Sandra Mason who convened Parliament with 18 of the 21 Senators properly allowed for the business of the Senate to be conducted. “The business of each House of Parliament, and more importantly the Senate, is allowed to continue its business in light of or despite a vacancy or vacancies,” she said.
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