#BTColumn – The Irish solution

Disclaimer: The views and opinions expressed by the author(s) do not represent the official position of Barbados TODAY. 

by Garth Patterson

It turns out that we aren’t alone – and I’m not referring to aliens. Exactly two years ago, a general election was held in the Republic of Ireland for the Dáil Éireann, which is the lower house, and principal chamber, of the Oireachtas (Irish legislature).

The election was called following the dissolution of the House by the President, at the request of the Taoiseach (Prime Minister), Leo Varadkar, on 14 January 2020.

The general election for the upper chamber, the Seanad (or Senate), was held on 30th March 2020 and 49 senators were elected to the Seanad.

However, that did not complete the complement of 60 senators contemplated by the Constitution of Ireland, which provided for the remaining eleven senators to be nominated by the incoming Prime Minister. Article 18.1 of the Irish Constitution provided that the Senate “shall be composed of 60 members, of whom 11 shall be nominated members and 49 lacuna between the general election of the House in February 2020 and the election of the new Prime Minister, Micheál Martin, on 27th June 2020.

Consequently, the remaining 11 senators were not nominated by Prime Minister Martin until June 27.

The Senate, in the meantime, had only the 49 newly elected senators in place, and several of them pressed hard for the President to convene the first sitting, notwithstanding the fact that 11 of the Senate seats had not yet been filled.

After a firestorm of controversy, a constitutional motion was ultimately filed in the High Court in mid-June 2020 by ten of the 49 newly elected senators seeking a declaration that the Senate was entitled to sit and pass legislation, notwithstanding that the Prime Minister had not appointed the eleven senators, and that the Oireachtas (comprising the House and Senate) was not debarred from functioning as a legislature.

The three-judge Divisional Court, after hearing the arguments, delivered its 30-page decision (Senator Ivana Bacik et al v An Taoiseach et al [2020] IEHC 313) on June 29, 2020, unanimously holding that the Constitution clearly and unambiguously meant that the Senate must be comprised of all 60 members.

The Court rejected the plaintiffs’ contention that the Senate was permitted to sit before the Prime Minister had nominated the 11 senators and held that the first meeting of the Senate could only lawfully take place when all 60 members identified in Article 18.1, elected and nominated, were in place.

What follows is a summary of the principal reasons, delivered by the President of the Court, for the decision, which all apply with equal force to Barbados’ current constitutional crisis.
Applicable principles of interpretation

The Constitution, as the fundamental law of the State, must be accepted, interpreted, and construed according to the words which are used; and these words, where the meaning is plain and unambiguous, must be given their literal meaning.

Words denoting numbers, places or identified persons admit of no debate. If a literal interpretation of one provision might bring it into conflict with the literal meaning of another provision, then it is legitimate to resort to the harmonious approach with a view to interpreting both provisions in a way which avoids inconsistency.

The words, the Senate “shall be composed of 60 members …”, considered on their own, and without reference to their Constitutional context, are clear and unambiguous.

They are expressed in the imperative “shall”.

The words tell us what the Senate is composed of. The words “composed of” are words used in everyday speech.

There is no ambiguity about any of that.

Article 18.1 (our section 36) clearly and unambiguously means that the Senate, an institution or organ of State, that is created by the Constitution must be comprised of 60 members. References elsewhere in the Constitution to the Senate are to be interpreted in the same way.

Casual Vacancies and Quorum
The Court rejected the plaintiffs’ argument that the provisions of the Constitution that deal with casual vacancies and quorum show that the Senate can function without its full complement of members.

It said that Article 18.1 (our section 36) prescribes the complement of members necessary to constitute the Senate and, having done so, it was then necessary to consider what should be done in the event that a vacancy subsequently arose in order to ensure that the Senate would, in such event, continue to have its full complement of members.

Similarly, to ensure the smooth running of the Senate, it was necessary for the Constitution to provide that the Senate could fix its own quorum. However, both of those provisions pre-suppose that the Senate has a fixed number of members.

Those provisions reinforce the meaning of Article 18.1 explained above rather than to undermine it.
The reference to the Senate in those provisions is a reference to the organ of State containing the 60 members prescribed by Article 18.1.

Meaning of “Senate”
On each occasion where the Constitution bestows upon the Senate a power or a function, that power or function is bestowed upon the body whose composition, and thus its identity, is as described at Article 18.1 (our section 36).

It means that the Senate must be composed of 60 members, 49 elected and eleven nominated. It does not have a variable meaning depending upon the context in which it appears.

The basic principle of construction is that, when a body is defined in one part of a legal document, it is that definition that describes the body whenever it is referred to throughout the document.
Article 15 (our section 35) of the Constitution provides for the Oireachtas as the National Parliament and makes clear that the Oireachtas consists of the President and two Houses, namely a House of

Representatives and a Senate.
Neither of the latter terms are otherwise defined and when Article 15 refers to Senate, it has in mind a Senate composed in accordance with Article 18.1 (our section 36). That is an inescapable conclusion.

The people chose a bicameral Parliament with an upper House comprised not just of elected members but also of nominated members. That is an integral element of the constitutional architecture of the form of democracy chosen by the people when they enacted the Constitution.

Senate does not exist
Article 6 makes it clear that the powers of government are exercisable only by or on the authority of the organs of State established by the Constitution. This means the Senate must be as established by the Constitution i.e., Article 18.1 (our section 36).

Article 18.9 (our section 39) makes it clear that the members of the Senate cease to hold office prior to an election. The constitutional scheme clearly envisages that there will be periods when the Senate cannot sit and during which periods legislation cannot be passed by the Parliament.

The fact that provides that the members of the Senate cease holding office before a general election, rather than providing for a dissolution of the Senate, is immaterial.

The Senate does not exist unless it is constituted as required by Article 18.1 (our section 36).

There is nothing in the terms of the Constitution which would permit the convening of a partially constituted Senate comprising only the 49 elected senators.

Postscript
The Irish experience, and the decision of the Divisional Court, provides a clear roadmap for, and solution to, this ugly constitutional quagmire in which our Government finds itself.

The Senate is not properly constituted and an assemblage of eighteen senators does not comport with the unambiguous meaning of “Senate” set out in section 36 our Constitution i.e., 21 persons appointed by the President in accordance with that section.

As presently constituted, the Senate and, by extension, Parliament are neither fish nor fowl. They simply do not exist, and any laws passed by this phantom Parliament will be invalid.

Garth Patterson Q.C. is a Senior Partner of Lex Caribbean. He was called to the Bars of Jamaica and Barbados in 1987 and the Bars of New York and St Lucia in 1990 and 2011 respectively.