MUSINGS

Constructive opposition

It could scarcely be considered unfair or invalid to argue that the appointment of Bishop Joseph Atherley as the Leader of Her Majesty’s Loyal Opposition in the Lower House of Parliament was not a universally popular one.

From those who considered that a literal interpretation of the Constitutional text does not accommodate an individual MP being appointed leader of the Opposition in the absence of a plurality of like-minded individuals; to some members of his own party who questioned his sudden volte-face after his successful electoral campaign on a BLP platform; and to others who saw themselves robbed of the likelihood of a voice during this iteration of parliament, given the stated intention of the Prime Minister; they all questioned the propriety and validity of his appointment.

To date, no one has sought to challenge the appointment in a court of law however, and while I myself had expressed in this space some equanimity as to how his contributions might be perceived, it now appears, if we are to judge from his contributions to the recent parliamentary debate on the Integrity in Public Life Bill 2018, as reported in The Barbados Advocate for last Thursday [p.9], that the goodly Bishop has settled firmly into his role as the effective conscience of the people in Parliament.

First, he questioned a perceived link between the political class and certain criminal elements that, even with the protection of absolute privilege, he does not appear to have named. His larger point here was made in the context of electoral campaign financing, which he suggested ought to be the subject matter of legislative enactment.

As to the Bill itself, Bishop Atherley is reported as querying the omission of judges from the list of “specified persons in public life” in the Second Schedule. The newspaper report does not indicate whether there was any ministerial response to this query, but it was the subject matter of court action in Trinidad & Tobago in the case of the Integrity Commission v The AG of Trinidad & Tobago.
There, by an amendment in 2000, the then governing UNC administration had included judges as among persons in public life subject to the Act. However, after objection from the judges, the Integrity Commission sought a determination from the Court as to whether having regard to the provisions of the Constitution and the Integrity in Public Life Act, judges and magistrates were indeed persons in public life subject to the provisions of the Integrity in Public Life Act as amended.

Mme. Justice Jones, who heard the matter, thought that subjecting the judges to the provisions of the Act constituted an alteration of the terms of service of those Judges appointed before the Act came into effect; impermissibly sought to control the manner in which judges function in their office; and sought to discipline judges in their capacity as judges in a manner that was
contrary to the constitutional provisions designed to ensure the independence of the judiciary. She concluded therefore – In my view… the provisions of the Act which allow for action to be taken and punishment to be inflicted against a Judge for duties imposed in the capacity as Judge are inconsistent with …the Constitution.

Her Ladyship also found that the inclusion of magistrates ran counter to the need to maintain a level of independence necessary to ensure that Magistrates as members of the lower Judiciary were accorded the autonomy appropriate to their status as members of the Judiciary.

In this regard, she determined – “…not only is the provision giving the Commission some disciplinary control over the Magistrates inconsistent with the Constitution but, given the statutory provisions establishing the Commission, an exercise of disciplinary control over Magistrates by the Commission would not provide the insulation acknowledged by the Constitution to be necessary to ensure that the independence provided to Magistrates as members of the Judicial arm of the State is not eroded.

It bears remarking that Barbados has expressly included magistrates in the copy of the Bill that I have seen on the Barbados Parliament website.

As an adjunct to his contribution on the Bill, Atherley also raised an issue that has been in the public domain since it was recognised that the patently dissuasive monetary penalties proposed in the original public draft of the Act had been substantially reduced (from between $250 000 on summary conviction and $500 000 on conviction on indictment to between $10 000 and $20 000 respectively.

The official responses to this query do not appear to have been particularly cogent. According to another section of the printed press, the Honourable Attorney General is quoted as averring that the figures will “revert” to those originally promised. He did not consider that an explanation for the alteration was warranted or mattered at this point – “There is an explanation for why the fines came down and it has nothing to with political will, but at this point I don’t think any explanation matters.”

Another member of the Cabinet offered an explanation in yet another section of the press. According to the Honourable Minister of Energy and Water Resources, Mr Wilfred Abrahams, in Barbados Today, “…the changes were made by the parliamentary drafts-person responsible for preparing the Bill for presentation in the two houses of Parliament with a view to ensuring that the fines were consistent with other domestic penalties…those fines were changed without reference to the drafting Committee or to the Attorney General…”

This is, by itself, a surprising revelation. I have always been informed that the draftsperson is a mere amanuensis or scribe of the legislative intendment of the policymakers rather than a
determinant of such policy. And while I could understand a drafter pointing out a patent inconsistency with a constitutional requirement, this is not alleged by Mr Abrahams. Indeed, the sole requirement of the supreme law in respect of punishment that might impinge on the current debate is that in section 15(1) to the effect that No person shall be
subjected to torture or to inhuman or degrading punishment or other treatment.

This clearly does not apply here without more.

Comparatively, in Trinidad & Tobago, for failing to make the required declaration or for making a false declaration, a person in public life is guilty of an offence and liable on summary conviction to a fine of two hundred and fifty thousand dollars and to imprisonment for a term of ten years; and where the offence involves the deliberate non-disclosure of property the Court may, in addition,

(a) where the property involved is situated in Trinidad and Tobago, declare that it be forfeited to the State;

(b) where the property involved is situated outside of Trinidad and Tobago, order that an amount equivalent to the value of the property (the value to be assessed as directed by the Court), be paid by the person in public life to the State.

Now, that is dissuasive punishment and for non-disclosure merely besides.

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