Grenville Walter Phillips v The Attorney-General of Barbados
| Jurisdiction | Barbados |
| Judge | Mr. Justice Barry L. Carrington |
| Judgment Date | 24 November 2021 |
| Neutral Citation | BB 2021 HC 042 |
| Docket Number | NO. CV 867 of 2021 |
| Court | High Court (Barbados) |
IN THE SUPREME COURT OF BARBADOS
IN THE HIGH COURT OF JUSTICE
CIVIL DIVISION
The Honourable Mr. Justice Barry L. Carrington, Judge of the High Court.
NO. CV 867 of 2021
Mr. Grenville Phillips in person.
Ms. Marsha Lougheed in association with Mr. Jared Richards for the Defendant.
The Applicant who is a litigant in person commenced proceedings on a Certificate of Urgency seeking judicial review of the Government of Barbados’ decision to change its form of government from a constitutional monarchy to a republic. He sought a declaration that (i) “an Act of Parliament by itself cannot lawfully make Barbados a republic and, (ii) public consent has not been obtained for Barbados to become a republic. Further, the Applicant seeks ‘a prohibition of Barbados becoming a republic until the explicit consent of the public has been transparently obtained”. At the first hearing of the matter, case management orders were made for the filing of documents. The Defendant was dilatory in filing its response and the Applicant filed a further application for an interim injunction restraining “the Government of Barbados…from changing Barbados from a Constitutional Monarchy to a Republic, until the Claim…has been determined by the Court.” The Defendant made preliminary submissions questioning the Claimant's right to commence proceedings as well as whether the matter is properly before the court.
In the Throne Speech delivered on September 15, 2020, Governor General, Dame Sandra Mason, GCMG, D.A., Q.C., on behalf of the Government of Barbados indicated that Government would take the next logical step toward full sovereignty and become a republic by the time Barbados celebrated its 55th Anniversary of Independence, on November 30, 2021.
This decision came against the backdrop of the 1998 Constitutional Review Commission Report which recommended that Barbados should become a parliamentary republic with a non-executive president elected by an electoral college and serving for a renewable four-year term of office.
In fulfillment of that recommendation, Government enacted the Constitution (Amendment) (No. 2) Act, 2021 (“the Constitution Amendment Act”) which, by proclamation came into operation on October 7, 2021. It's Long Title states that it is an Act to alter the Constitution to provide for Barbados to become a republic with a President who shall be Head of State of Barbados, and to provide for related matters.
On October 7,2021, the Claimant commenced proceedings on a Certificate of Urgency accompanied by a Fixed Date Claim Form and an affidavit of Glenville Walter Phillips, in which he seeks
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(a) a declaration that an Act of Parliament by itself cannot lawfully make Barbados a Republic,
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(b) a declaration that public consent has not been obtained
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(c) for Barbados to become a Republic, and
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(d) a prohibition of Barbados becoming a Republic until the explicit consent of the public has been transparently obtained.
The Defendant responded to the Claimant's application by way of an affidavit filed by the Attorney General, the Honourable Dale D. Marshall Q.C. M.P. who indicated that the Act was passed unopposed in the House of Assembly and was also passed in the Senate. He also indicated that the Act became law in Barbados on October 7, 2021. The learned Attorney General said that the Claimant has not established conclusively that the application is one for judicial review and that he has not stated in his pleadings what “decision” or “administrative act or omission” was challenged. Further, the Attorney General contended that the intent of the application is the review of the decision of Parliament in passing the Act which is impermissible since judicial review matters are limited to the review by the courts of the act, decisions, determinations, orders, recommendations of individuals and bodies performing public functions.
At the case management conference on October 12, 2021, it was ordered that the Defendant would respond to the Claimant's application by October 26, 2021 and then the matter would be decided on the written submissions to be filed by the Claimant and Defendant on October 26, 2021 and November 9, 2021, respectively. When the Defendant's response was not filed by the stipulated date, the Claimant on November 12, 2021 filed an Application accompanied by an Affidavit, seeking an interim injunction in the following terms:
“The Government of Barbados shall refrain from changing Barbados from a Constitutional Monarchy to Republic, until the Claim…between the Claimant …and the Defendant…has been determined by the Court”.
The Defendant filed his Affidavit in Response and Written Submissions on November 10, 2021 and November 9, 2021, respectively. The Claimant filed Submissions in Response on November 18, 2021. However, as the court will deliver a decision before November 30, 2021, there is no need to consider the application for the interim injunction.
It should be noted that at the ex parte hearing of the urgent application, the court enquired of the Claimant if he had engaged the services of counsel considering the importance of the matter. He responded that he had not, and expressed difficulty in procuring the services of counsel.
The Claimant indicated his belief that the fundamental alterations to the Constitution as embodied in the Constitution Amendment Act are contrary to the laws of Barbados. He alleged that Parliament is attempting to alter the Constitution in violation of section 49(3) and (7).
In addition, the Claimant stated that there cannot be a change from a constitutional monarchy to a republic without the consent of the public. He indicated that a referendum was necessary as provided for in the Referendum Act Cap. 11A (“Referendum Act”) and contended that making Barbados a Republic without the consent of the public ‘appears to be a violation’ of that Act. The Claimant's Submissions in Response were 50 pages and should have addressed the law only, but contained mostly irrelevant facts and conjecture and failed to address the legal arguments raised in any meaningful way. For example, in his response to the submission that the Referendum Act was not proclaimed and is not a part of the law, the Claimant sought to argue why it should still be considered, instead of seeking to persuade the court of its validity. In my opinion, none of the responses merited reproducing as part of his submissions.
Counsel for the Defendant raised several objections to the matter filed by the Claimant. Firstly, they contend that the Claimant's Fixed Date Claim Form does not identify the legislative provision or rule of the Civil Procedure Rules, 2008 (“CPR”) on which his application is based, pursuant to section 6 of the Administrative Justice Act, Cap. 109B (“Administrative Justice Act”).
Counsel further contends that the Claimant failed to establish that he has locus standi to make an application for judicial review either under the Administrative Justice Act or in accordance with Part 56.2 of the CPR. They argue that the true intent of the Claimant's application is the judicial review of the decision of Parliament relating to the passing of the Constitution Amendment Act, which is not permissible.
Counsel also argued that the Claimant misunderstood the constitutional requirements for altering the Constitution and that the requisite two thirds majority was obtained in both houses of Parliament. Consequently, counsel submitted that the Claimant's assertion that an Act of Parliament by itself cannot lawfully make Barbados a republic, is a gross misunderstanding of the law. Counsel submitted that the Claimant's argument that there must be a referendum under the Referendum Act, is misconceived since that Act has not been proclaimed and does not form part of the law of Barbados.
Finally, Counsel strongly contended that ‘the cumulative effect of the errors, infelicities, misconceptions and legal deficiencies in the Claimant's case is of such magnitude that the pleadings cannot be sensibly amended.’
The Claimant's Application is for judicial review, which can be made pursuant to the Administrative Justice Act as set out at section 3(1), or the CPR at Part 56. The grounds on which the court may grant relief, or put differently, the basis on which the court is empowered to act is found at section 4 of the Administrative Justice Act. It should be noted that on an application made under the CPR, the Claimant is required to state the grounds listed at section 4 of the Administrative Justice Act. They are:
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(a) that an administrative act or omission was in any way unauthorized or contrary to law;
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(b) excess of jurisdiction;
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(c) failure to satisfy or observe conditions or procedures required by law;
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(d) breach of the principles of natural justice;
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(e) unreasonable or irregular or improper exercise of discretion;
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(f) abuse of power;
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(g) fraud, bad faith, improper purposes or irrelevant considerations;
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(h) acting on instructions from an unauthorised person;
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(i) conflict with the policy of an Act of Parliament;
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(j) error of law, whether or not apparent on the face of the record;
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(k) absence of evidence on which a finding or assumption of fact could reasonably be based; and
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(l) breach of or omission to perform a duty.
The Claimant has not alleged a breach of any of these grounds in order to commence proceedings for any breaches and to procure the relief which he seeks. He asserts that the Constitution Amendment Act on its own is incapable of changing the current form of government to that of a republic. He has not provided any facts on which the court can...
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