Adriel Dermont Brathwaite v Attorney General of Barbados

• Jurisdiction: Barbados
• Court: High Court (Barbados)
• Judge: Madam Justice Cicely Chase
• Judgment Date: 14 March 2022
• Neutral Citation: BB 2022 HC 69
• Docket Number: CIV 109/2022

In the matter of the decision by The President to Convene the Parliament of Barbados

And In the matter of the Administrative Justice Act Cap 109B of the Laws of Barbados

Between:

Adriel Dermont Brathwaite

Applicant

and

Attorney General of Barbados

Respondent

Before

the Honourable Madam Justice Cicely Chase Q.C., Judge of the High Court

CIV 109/2022

IN THE SUPREME COURT OF BARBADOS

IN THE HIGH COURT OF JUSTICE

Appearances:

Mr. Garth Patterson Q.C. in association with Miss Michelle Russell and Mr. Rico Yearwood, Attorneys-at-Law for the Applicant

Mr. Leslie F. Haynes Q.C., Mr. Roger C. Forde Q.C., Mr. Alrick Scott Q.C., Mr. Gregory Nicholls, Mr. Kashawn Wood, Miss Simone Scott and Miss Kaila Headley in association with Messrs Carrington and Sealy per Dr. H. Adrian Cummins Q.C., Mrs. Sherica Mohammed-Cumberbatch and Mr. Jason Wilkinson, Attorneys-at-Law for the Respondent

Background and Factual Matrix

1 On the 9 ^th day of February 2022, the Applicant, Adriel Dermont Brathwaite, filed an action in the Civil Division of the High Court by way of Fixed Date Claim Form (FDCF) against the Attorney General of Barbados (AG).

The Fixed Date Claim Form of the Applicant inclusive of its grounds and relief sought

2 The Fixed Date Claim Form (FDCF) was filed together with an Affidavit of Urgency of even date on the 9 ^th February 2022. There was no Certificate of Urgency on the Court's file.

3 Regarding the Fixed Date Claim Form [FDCF], the following relief was prayed at Section B as amended by the oral application of the Respondent Q.C. on the 11 ^th day of February 2022 and by document entitled Amended Fixed Date Claim Form [FDCF] on the 17 ^th day of February 2022 as follows:

• 1. A declaration that the Senate is not properly constituted under Section 36 of the Constitution of Barbados and has not come into existence;

• 2. A declaration that by reason of the fact that the Senate is not constituted in accordance with Section 36 of the Constitution the Parliament is not properly constituted under Section 35 of the Constitution;

• 3. A declaration that Her Excellency the Most Honourable Dame Sandra Prunella Mason, President of Barbados has the power and the duty to act on her discretion in the exercise of her function of appointing two Senators to the Senate pursuant to Sections 36 (3), 62 (2) and 75 (a) of the Constitution;

• 4. (as amended) A declaration that the decision of the President not to appoint two Senators Pursuant to Section 36 (3) of the Constitution was an arbitrary, unreasonable and/or irregular and/or improper exercise of discretion and/or and abuse of power and/or irregular and/or improper exercise of discretion and/or an abuse of power and/or was made in contravention of Sections 36 and 62 (2) of the Constitution and was accordingly invalid, null and void;

• 5. A declaration that the President's failure, omission or refusal to appoint two Senators pursuant to Section 36 (3) was an arbitrary, unreasonable and/or irregular and/or improper exercise of discretion and/or abuse of power and/or was in contravention of section 36 of the Constitution and/or contrary to Section 62 (2) of the Constitution;

• 6. A declaration that the decision of the President to appoint the 4 ^th day of February 2022 as the date of commencement of the current Session of Parliament, pursuant to Section 60 of the Constitution and before the appointment by her of all twenty-one Senators in accordance with Sections 36 (1) and 62 (2) was an arbitrary, unreasonable and/or irregular and/or improper exercise of discretion and/or and abuse of power and/or was made in contravention of Section 36 of the Constitution and was accordingly invalid, null and void;

• 7. (as amended) An order of certiorari quashing the said decision of the President;

• 8. A declaration that any business that the Senate and/or the Parliament purported to transact on or after the 4th day of February 2022, including any law purportedly enacted by it, is unconstitutional by reason of the contravention of Sections 35 and 36 of the Constitution and accordingly, invalid null and void; and

• 9. Alternatively, a declaration that;

  • a. The Senate, as presently constituted with eighteen members, has no power to pass a Bill of Parliament that alters the Constitution: and

  • b. Any Act of Parliament so passed is unconstitutional and accordingly, invalid, null and void .

4 The grounds on which the relief was being sought were set out at pages 5 to 14 inclusive of the FDCF.

5 The Applicant sets out the following grounds:

• 1. He is a citizen of Barbados and former Attorney General. He is an Attorney-at-Law a public minded citizen with a right to apply to the Court seeking strict compliance by the President and the legislative branch with all the provisions of the Constitution and other applicable laws. The High Court has the inherent jurisdiction and/or jurisdiction under the Administrative Justice Act Cap 109B of the Laws of Barbados to grant relief if the Court is satisfied that the person's application is justifiable in the public interest:

• 2. The Respondent is sued in his capacity as Chief Legal Advisor to the Government of Barbados. He is the proper party to be sued for judicial review applications or constitutional law matters where impugned administrative acts or omissions as those defined by the Administrative Justice act Cap 109B (AJA) are those of a head of state such as the President. The Attorney General is also the proper party to be sued where any claim is made which seeks to impugn and legislation that may have been, or is in the process of being enacted by the Parliament .

6 The Applicant referred to the dissolution of the Parliament of Barbados by Her Excellency the Most Honourable Dame Sandra Prunella Mason the President acting on the advice of the Prime Minister on the 27 ^th December 2021. As a result, all of the seats of the Senate became vacant pursuant to Section 39 of the Barbados Constitution. Writs of a general election were issued and a general election was held on the 19 ^th January 2022 and as a result thereof, all 30 candidates of the Barbados Labour Party were elected to the House of Assembly. Thereafter, Her Excellency the Most Honourable Dame Sandra Mason President appointed a total of 18 persons to sit in the Senate.

7 Further, by Proclamation on the 3 ^rd February 2022, relying on the powers granted to her pursuant to Section 60 (1) of the Constitution, the President appointed Friday the 4 ^th February 2022 for the commencement of a new Session of Parliament. On that day, both Houses of Parliament were convened and purported to transact business in accordance with the requirements of the Barbados Constitution including electing a Speaker and a Deputy Speaker of the House of Assembly and in the case of the Senate, electing the President and the Deputy President of the Senate.

8 On Friday the 4 ^th February 2022, a Bill entitled “An Act to alter the Constitution to change the qualifications for membership of the Senate and the House of Assembly” was laid in the House of Assembly. The Bill sought to alter Sections 37, 43 and 75 of the Barbados Constitution pursuant to Section 49 thereof and on the 8 ^th February 2022, the House of Assembly unanimously passed the said Bill.

9 The Applicant contended that the Senate is not properly constituted under Section 36 of the Constitution. That Section states that the Senate shall consist of twenty-one persons, who being qualified for appointment as Senators in accordance with the provisions of this Constitution, have been so appointed in accordance with the provisions of this Section.

10 The Applicant contended that the Senate must be constituted with 21 Senators in accordance with Section 36 of the Constitution before the Senate may meet and that the Senate does not exist unless it is constituted as required by that Section, with the 21 Senators as stated.

11 Moreover, the Applicant contended that until the Senate is brought into existence, Parliament is not properly constituted in accordance with Section 35 of the Constitution and may not be convened. Section 35 states that “The Parliament shall consist of the President, a Senate and a House of Assembly.”

12 The Applicant contended as a further ground that the President has the power and the duty to act in her discretion in the exercise of her function of appointing two Senators to the Senate pursuant to Sections 36 (3), 62 (2) and 75 (a) of the Constitution.

13 He explained further that as a result of the Barbados Labour Party winning all 30 seats in the House of Assembly, there is no person qualified to hold the office of the Leader of the Opposition. Therefore, Section 75 (a) of the Constitution is engaged and the President is required by Sections 36 and 62 (2) to proceed to the appointment of all twenty-one of the Senators and not just 18 Senators.

14 The Applicant said that the decision of the President not to appoint two Senators in accordance with Section 36 (3) was arbitrary, unreasonable, irregular and an improper exercise of the discretion or an abuse of power made in contravention of Sections 36 and 62 (2) of the Constitution and was therefore invalid, null and void because Section 62 (2) of the Constitution requires that as soon as may be possible after every general election, the President shall proceed under Section 36 to the appointment of Senators.

15 The Applicant further contended that Section 36 of the Barbados Constitution requires the President to approve 21 Senators in all and she has appointed 11 Senators acting on the advice of the Prime Minister. The twelfth Senator who the Prime Minister is entitled to select, has not been nominated or appointed.

16 By virtue of Sections 36 (3) and 36 (4) and Section 75 of the Barbados Constitution, the President is entitled to appoint all of the remaining nine (9)...