Constitution and powerof the PM
Within the past ten days, matters of immediate constitutional moment diverted my attention away from an analysis of the legal issues on CLICO; my passion for constitutional issues having, for once, trumped my infinite interest in the application of legal principles to developments in corporate affairs.Clico can wait; the Constitution cannot!On July 1, Prime Minister David Thompson told the country that he was taking two months leave and that he was placing the reins of Government in the hands of Deputy Prime Minister Freundel Stuart. The language used by Mr Thompson was interesting. He told the country that he was “devolving” on Mr Stuart the authority to make whatever decisions he deemed necessary to keep the social and economic ship of state on an even keel.If the cause for taking leave was his illness, the effect of the speech raised issues which challenge the boundaries of prime ministerial power, for it is legally impossible for any prime minister to “devolve” the authority of his office to another! The consequences of this purported devolution, including the appointment of new comer Mr Adriel Brathwaithe as Her Majesty’s Attorney General in Barbados, may now be examined.Firstly, the Constitution records His Excellency the Governor General as the only person empowered to appoint and anoint an MP as prime minister. As the late Right Excellent Errol Barrow once made clear, the office of prime minister is not something that a sitting prime minister can leave by will to another MP. Neither, in my opinion, can an incumbent prime minister “devolve” upon any member of parliament who acts as prime minister, the power to make any decisions he deems necessary, simply because the incumbent has no such legal power, and in any event, on appointment, an “acting prime minister”, already has full prime ministerial power.In fact, Section 67 of the Constitution empowered the Governor General to authorise Mr Stuart to perform all the functions (except one) conferred on Prime Minister Thompson by the Constitution, the prime minister being “unable to perform the functions of his office, through illness or absence from Barbados”. As usual in such matters, His Excellency acts on the advice of the prime minister, but may act in his own discretion if the prime minister’s illness makes it impracticable for him to get the prime minister’s advice or if he is abroad.So that while Mr Thompson’s “devolution statement” was constitutionally barren; when coupled with the fulsome anointing heaped by him on Mr Stuart’s head, it is pregnant with political implications for any “ambitious restlessness” which may have been raising, or may in future raise its destabilising head within the governing party.As Mr Thompson departed the island to continue treatment, Barbados therefore had a Prime Minister, Mr Thompson, and an “Acting Prime Minister”, i.e. Mr Stuart, who was carrying out the functions of the Prime Minister; but whose substantive job was still Attorney General and Minister of Home Affairs, to which he would have reverted once Mr Thompson returned to his post as, “God willing”, he anticipated in his address to the country. So far the only real issue was the devolution point, but more was to follow.Last Tuesday, with “acting” Prime Minister Stuart in Jamaica, the House of Assembly met, with Mr Ronald Jones being described also as “acting” Prime Minister. Some questions arise: Did we have two acting prime ministers at the same time? Was Mr Jones sworn in to perform the functions of Prime Minister, in the absence of both Mr Thompson and Mr Stuart abroad?Normally these routine matters do not intrude, but we discovered later rather than earlier on Tuesday, in an “out-of-its normal place” announcement in the House that the highly prestigious constitutional office of Attorney General had been conferred on Mr Adriel Brathwaithe. Leader of the House, Hon. Chris Sinckler stressed that it was a substantive and not an acting appointment, and that the new Attorney General had already been sworn in by the Governor General.When was this substantive appointment made? And who advised that it be made? Mr Stuart, or Mr Jones? Where does it leave Mr Stuart, since constitutionally speaking he does not now have a substantive ministry but is “only” performing the very important functions of the office of Prime Minister, while the substantive Prime Minister recuperates overseas.In fact, from the moment Mr Brathwaithe was appointed Attorney General, Mr Stuart’s status as a (substantive) minister became tenuous and arguable, simply because he could only qualify to act as Prime Minister because he was already a minister (Attorney General and Home Affairs) in the first place and now he is not!What then is the state of affairs as Mr Stuart arrives back in Barbados? If Mr Jones was appointed “Acting Prime Minister” in Mr Stuart’s absence abroad, then does Mr Stuart set foot again on Barbadian soil technically and constitutionally without the legal authority as a minister? Further, if Mr Stuart’s acting appointment was “revoked” when Mr Jones was appointed “Acting Prime Minister”, then Stuart is no longer a minister which is a precondition to become an acting prime minister. These questions need answers. What we know for sure is that the Hon. Adriel Brathwaithe is the substantive Attorney General and Leader of the Bar in Barbados, and entitled now to be appointed a Queen’s Counsel, even if his appointment has a shelf life of only two months!Ezra Alleyne is an attorney at law and a former Deputy Speaker of the House of Assembly.