Former Attorney General of Barbados Adriel Brathwaite is asking the Court of Appeal to set aside the ruling of High Court judge, Justice Cicely Chase, who earlier this month ruled that the Senate can lawfully meet with 18 appointed members although the island’s Constitution refers to 21.
In a 13-page notice of appeal on Monday, Brathwaite’s attorneys are asking the court to stay the proceedings in the High Court, pending the hearing and determination of the appeal.
But Attorney General Dale Marshall, who is the respondent in the case, said the Mia Mottley government is ready to fight the appeal and has no intention of suspending the business of the Senate because a challenge to the High Court decision had been filed.
“We will of course be resisting the appeal and our legal team has been on standby 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,” Marshall told the online publication, 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,” he added.
In a lengthy judgment on March 14, Justice Chase deemed the move by President Dame Sandra Mason who convened Parliament with 18 of the 21 Senators properly allows 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 in her ruling.
The three missing legislators included the two that the main opposition Democratic Labour Party (DLP) as the party with the second-highest number of votes in the January elections was offered, and 18-year-old Khaleel Kothdiwala whose appointment had to be preceded by a change in legislation.
Justice Chase said Brathwaite’s argument that 21 persons must be appointed before the Senate can convene was “a very narrow interpretation” of Section 36 (1) of the Constitution.
“In other words, Section 36 (1) cannot stand on its own and there has to be a purposive and contextual approach to what is intended by the framers of the Constitution.
But in his appeal, Brathwaite through lead attorney Garth Patterson Q.C., submitted 12 grounds to show that Justice Chase erred in her whole ruling.
Patterson is arguing 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.
He is also arguing 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, who served as attorney general between 2010-18, 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.
He is also urging the Appeal Court to issue an order that the appeal be heard expeditiously, and that time is shortened as necessary to facilitate a speedy hearing.
On Monday, attorney Gregory Nicholls was sworn as the government’s Senator replacing 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 Mottley withdrew the proposed amendment to the Constitution after it became clear that she would not have received the two-thirds majority vote needed to ensure passage of the amendment.
President Dame Sandra is likely to name the final two independent senators later this week to complete the full slate of senators in the current parliament.
Meanwhile, in a statement on Monday, Brathwaite praised the five independent senators who spoke up against what he termed the “undemocratic overreach” of the government by resisting any attempt to once more implement major constitutional amendments to entrenched provisions without consultation with citizen stakeholders.
“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 said, adding that these are matters for which there is an urgent call for certainty, which will only come when the highest court, the Trinidad-based Caribbean Court of Justice, adjudicates on them.
CMC/
