between
PERRY GLADSTONE CHRISTIE
Plaintiff
(in his capacity as
Leader of the Opposition)
and
HUBERT ALEXANDER INGRAHAM
(in his capacity
Prime Minister of the Commonwealth
of The Bahamas
and
The Attorney General of The Commonwealth
of The Bahamas
Respondents
Coram: Hon. Sir Burton Hall, Chief Justice
Appearances: Hon Paul L Adderley, Mr Damian Gomez with him, for Applicant
Mr Loren Klein for Respondent
Hearing dates: 6 September, 19 November, 20 December 2007;
10 January, 14 April, 18, 19, 20 August, 8 September 2008
J U D G M E N T
PRELIMINARIES
The substantive hearing of this application began on 18 August, the
earlier fixtures having been used to dispose of a number of housekeeping
and case management matters
2. Before I proceed to the substance of this judgment, I would highlight an issue which was never resolved to my satisfaction. However, as, in my view, the Court had no authority to impose a resolution, the case proceeded before me with what may have been a constraint on the presentation of the case for the first respondent.
3. After this matter had been filed in the Supreme Court the Registrar, at my direction, wrote to the attorney of record for the respondents as follows:
5 November 2007
Mr Loren Klein
Office of the Attorney General
NASSAU
Dear Mr Klein,
Perry Gladstone Christie v Hubert Alexander Ingraham and The Attorney
General
2007/PUB/con/ 00034
I refer to your letter of 30 October requesting a date for the hearing of your summons filed on 11 October in advance of the date reserved for the hearing of the substantive matter on 19 November and am directed to inform you that the Chief Justice’s calendar does not allow for the hearing of this summons at a date earlier than the said date of 19 November. The Chief Justice will, therefore, hear your application on that date in advance of the substantive case.
The Chief Justice has further directed that I alert you that, when you appear, you will be invited to address another question that has recently occurred to him (the Chief Justice). The court takes judicial notice of the fact that you are a legal public officer in the employ of the Office of the Attorney General. As this case involves a question of the interpretation of a statute, specifically, the Constitution, it is assumed that the discrete interest of the Attorney General, who is named as the second respondent, is confined to assisting the court, through yourself, on this question. On the other hand, the first respondent, Hubert Alexander Ingraham, although purportedly sued “(in his capacity as) Prime Minister”, appears, on the papers filed, to be challenged, not in his executive capacity within the intendment of Articles 71 and 72 of the Constitution, but as “the leader of the party which commands the majority of the members of [the House of Assembly] under Article 73 (1)(a)”.
Accordingly, you will be invited to address the question of whether it is appropriate for you to appear for the Prime Minister when the challenge is not to an executive decision but to a “political” one.
These preliminary issues will be dealt with in open court according to the existing fixture for 19 November.
Faithfully,
Ernie E Wallace
Deputy Registrar / Manager, Public Law Division
copy Hon. Paul L Adderley
Attorney for the Applicant
4. I heard Mr Klein at one of the case management hearings, on 19 November,
(Mr Adderley having declined to take a position on the matter) and I ruled
that:
While still not satisfied as to the position of Mr Klein – as a legal
public officer – appearing as counsel for the first respondent – the Prime
Minister – in this application which Mr Adderley has described as “very
unique “, I do not assume the authority to make any definitive ruling on
the question at this stage and direct the matter to proceed.
5. When the matter eventually came on for the substantive hearing, on
the second day, it became apparent that Mr Klein would have some difficulty
in addressing the relevant “political” question of why the first respondent,
the Prime Minister, had acted in the manner challenged by the applicant.
Mr Klein was permitted an opportunity to consult further with his principals
in the Office of the Attorney General and returned to inform the Court
that his “instructions” remained as they had been initially given and that
the Prime Minister would not be separately represented. While I,
again, made no formal ruling on the question, Mr Klein accepted the admonition
that he would only be heard on the issue of the interpretation of the Constitution.
____________
6. At a preliminary stage in this matter, counsel for the respondent
had filed a summons seeking to strike out large portions of the affidavit
(and accompanying exhibits) of the applicant. He was persuaded to
abandon that course in the interests of the timely and efficient disposal
of the action. I reminded counsel of the views that I had expressed
in McMillen Trust v Rawat. Equity No. 1407 of 1990 where, after consideration
of the relevant authorities, having cited the views of Roskill LJ in Alfred
Dunhill v Synoptics SA [1979] FSR 337, 352 that:-
Affidavits are designed to place facts, whether disputed or otherwise,
before the tribunal for whose help they are prepared. They are not designed
as a receptacle for or as a vehicle for legal arguments. Draftsmen of affidavits
should not, as a general rule, put into the mouths of the intended deponents
legal arguments of which those deponents are unlikely ever to have heard.
Legal arguments . . . should come from the mouths of those best qualified
to advance them and not be put into the mouths of the deponents,
and Phipson on Evidence 13th edition paragraph 34 - 02
It is important to observe that, unless there is a specific provision
excepting the rule, the contents of affidavits must be confined to such
matters as are admissible by the rules of evidence,
I had summarised the principles as follows:-
(a) an affidavit must comply with the
ordinary laws of evidence;
(b) an affidavit must not contain matter which is
scandalous and/or irrelevant and/or oppressive. "Irrelevant" material includes
opinions, conclusions and submissions;
(c) where an affidavit which is filed contains any
matter which it ought not to contain, the court need only ignore the offending
matter unless the breach is egregious;
(d) where an objection is taken by a
party to material contained in an affidavit filed by another party, the
court may instead of proceeding as at (c), order the offending material
to be struck out, but should only do so in "plain and obvious" cases. If,
the matter objected to is inconsequential the court would still proceed
as at (c),
and I determined that I would simply ignore matters which ought not
to appear in an affidavit (Re J [1960] 1 WLR 253, 257) bearing in mind
that evidence is contextual and, while it could only be tendered serially,
it is absurd for an opposite party to take an item of evidence in isolation
and scrutinise it in total disregard of how that item of evidence is linked
to other material in the case.
7. The determination of the preliminary applications resulted in Mr
Klein accepting (upon the persuasion of the Court without my having to
make a formal ruling) that counsel for the applicant would be able to rely
on certain historical materials, documents generated at the time of and
in the months that followed the conference that preceded Independence on
10 July 1973. Counsel arrived at common ground that this was not
a Pepper v Hart [1993] A C 593 scenario, where the Court, in an attempt
to interpret the meaning of primary legislation that is ambiguous, might
under certain circumstances consider the legislative history and have recourse
to the departmental and parliamentary papers that preceded the legislation
in order to resolve an ambiguity or uncertainty in the statutory text.
8. As Mr Adderley, in my view correctly, submits, a constitution is
the product of political consensus and evidence of that consensus is of
particular importance to giving the terms of the Constitution the generous
purposeful interpretation that is required. He cites in support the judgment
of the Judicial Committee of Her Majesty’s Privy Council in Attorney
General of Trinidad and Tobago v Whiteman [1991] 2 A C 240 where Lord Keith
of Kinkel opines, at 247:
The language of a Constitution falls to be construed, not in a narrow
or legalistic way, but broadly and purposively, so as t give effect to
its spirit . . .
9. On the approach to be
adopted with respect to constitutional interpretation,
Mr Klein accepts as well settled in the Commonwealth Caribbean that, even
when courts are not considering the fundamental rights provisions of the
Constitution, a “generous and liberal” approach to interpretation has been
acknowledged. Two years before the decision in Whiteman, Gonsalves-Sabola
J (as he then was) in the Supreme Court of The Bahamas, in Whitfield v
Attorney General (1989) 44 W I R 1 had observed, at pages 19ff
“A Constitution is the organic law of a country. It sets the parameters
within
which the country
will be governed. It establishes the institutional structures
of Government and either expressly, or by necessary implication,
their inter-
relationship, and spells out the basic rights of citizens and
the obligations of the executive. Because a Constitution is drawn
in such large outlines to satisfy its peculiar purpose, it has come to
be treated in a special way. In Minister of Home Affairs v Fisher
[1980] . . . Lord Wilberforce (at page 113) preferred adopting a
more radical approach in construing
a Constitution and treating it as –
‘sui generis, calling for principles of interpretation of its
own, suitable to its character . . . without necessary acceptance of all
the presumptions that are relevant to legislation of private law.’
The actual formulation of Lord Wilberforce’s approach may arguably have
been influenced by the particular aspect of the Bermudian Constitution
that was being construed but what, in effect, was being done was
to uphold the method of interpreting a Constitution with less rigidity
and greater generosity than other statutes. Lord Wilberforce spoke
of taking ‘as a point of departure for the process of interpretation
a recognition of the character and origin of the instrument’. In
Hinds, Hutchinson, Martin, Thomas v R. (1975) 24 WIR 326 at page 330 Lord
Diplock said:
‘A written Constitution, like any other written instrument affecting
legal rights or obligations, falls to be construed in the light of its
subject matter and of the surrounding circumstances with reference
to which it was made.’
He continued (at page 331):
‘[Constitutions] differ fundamentally in their nature from ordinary
legislation passed by the Parliament of a sovereign State.
They embody what is in substance an agreement reached between representatives
of the various shades of political opinion in the State as
to the structure of the organs of Government through which the plenitude
of the sovereign power of the State is to be exercised in the future.’
and later, on the same page he said:
‘To seek to apply to constitutional instruments the canons of construction
applicable to ordinary legislation in the fields of substantive criminal
or civil law would, in their lordships’ view, be misleading . . .’ “.
10. Nevertheless, Mr Klein continues,
even in the interpretation of constitutions, certain basic rules perdure
and he cites Lord Reid, in Black-Clawson International Ltd v Papierwerke
Waldorf-Aschaffenburn AG [1975] A C 591 at 613:
“We often say that we are looking for the intention of parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said.”
and submits:
“Particularly useful with respect to the approach to the framers’ intention
is the dictum of Bryon C J in Att-Gen v Grenada Bar Association, Civ. App.
No. 8 of 1999 (unreported) at paragraph 7, as follows:
‘The basic principle is that the interpretation
of every word or
phrase of a constitutional provision is derived
from the intention
of the framers of the Constitution in regard
to the meaning that
the word or phrase should bear.
That intention is an inference
drawn from the primary meaning of the word
and phrase with
such modifications as may be necessary to
make it concordant
with the context of the Constitution.
In this regard, the context
of the Constitution comprises every word and
phrase used in the
Constitution as a whole, all the implications
therefrom and all
relevant surrounding circumstances which may
properly be used
as indications of the intention of the framers
of the Constitution.
The relevant surrounding circumstances include
the antecedents
from which the underlying principles are drawn.’
It is suggested, based on the analysis of the cases above, that
the following
principles should guide the court in its approach to construction
of the relevant
constitutional provisions:
i. The starting point is the words used
in the Constitution, which are to
be considered in light
of the surrounding circumstances and in the
context of the constitutional
scheme;
ii. The Court’s interpretation should
be guided by a search for the
intention of the framers,
but this means no more than an objective
approach to statutory
construction; not a search for an ‘original intent’
ill-at-ease with the
language and the text of the Constitution;
iii. The generous and liberal interpretation
and the ‘living instrument’
principle are of minimal
value to the Court’s approach; there are no
issues of fundamental
rights engaged; and the provisions under
considerations are
capable of bearing a specific and fixed meaning, not
susceptible of judicial
updating along the lines of the living tree principle.”
11. Mr Klein’s citation of the views
of Byron C J In Grenada Bar Association Is of a portion of a passage from
the judgment of that learned jurist, the whole of which I find instructive:
“The principles that govern the Interpretation of Constitutions have
been considered from time to time. As a suitable starting point I
would like to adapt the elegant description of the basic principle of statutory
Interpretation set out by Sir Vincent Floissac C.J. in Savarin v Williams
Dominica Civil Appeal No. 3 of 1995 at p.3. [The basic . . .
are drawn.] In the well known case of Minister of Home Affairs v
Fisher . . . Lord Wilberforce reminds that these antecedents include
the European Convention for the protection of Human Rights and Fundamental
Freedoms and the United Nations Universal Declaration of Human Rights 1948
which encourage a generous interpretation avoiding ‘the austerity of tabulated
legalism’ to ensure that the full benefit of the constitutional provisions
are enjoyed. In Dow v Attorney General [1992] LRC (Const) 623 Aguda
J A painted his summation at 668:
‘In my view the overriding principle must be an adherence to
the
general picture presented by the Constitution into which each
individual provision must fit in order to maintain in essential details
the picture of which the framers could have painted had they been
faced with the circumstances of today.’
The nature of a Constitution requires that a broad, generous and purposive approach be adopted to ensure that its interpretation reflects the deeper inspiration and aspiration of the basic concepts on which the Constitution is founded. Respect must be paid to the language that is used and its context, by considering all relevant provisions bearing on the subject for interpretation as a whole, and to the traditions and usages which have given meaning to that language, in order to effect the objective of the Constitution. In order to do this the court must have a sober and objective appraisal of the general canvas upon which the details of the constitutional picture are painted.”
12. I considered the authorities
referred to by counsel and, having drawn to their attention the recent
decision of the Supreme Court of the United States in District of Columbia
v Heller, 554 U.S. (2008) where both the majority and the dissenting opinions
engaged in extensive consideration of the historical material in considering
the central question of whether the second amendment to the U S Constitution
conferred an individual right to keep and bear arms ruled that, peculiar
to constitutional adjudication, the Court was entitled to consider relevant
historical material as an aid to divining the intention of the framers
in creating provisions the meaning of which is the subject of controversy.
EVENTS AND ISSUES
13. By Chapter V, Article 38, of the Constitution:
There shall be a Parliament of The Bahamas which shall consist of Her
Majesty, a Senate and a House of Assembly.
14. The House of Assembly comprises members individually elected to
single member constituencies (currently 41) by the “first-past-the-post
system”. Judicial notice can be taken of the fact that, while, for
the past 50 years, most persons who contest seats do so under the banner
of a particular political party, there is no legal requirement that they
do so and electoral contests invariably include a number of “independent”
candidates.
15. On 2 May 2007, general elections were held and 18 of the candidates,
who contested seats as members of the Progressive Liberal Party (“PLP”),
led by the applicant, were successful while candidates who contested as
members of the Free National Movement (“FNM”), led by the first respondent,
secured 23 seats. The first respondent thereupon assumed office as
Prime Minister while the applicant was appointed Leader of the Opposition.
16. Part 2 of Chapter V of the Constitution establishes a Senate as
follows:
Composition of Senate.
39.- (1) The Senate shall consist of sixteen members (in this Constitution
referred to as "Senators") who shall be appointed by the Governor-General
by instrument under the Public Seal in accordance with the provisions of
this Article.
(2) Nine Senators shall be appointed by the Governor-General acting
in accordance with the advice of the Prime Minister.
(3) Four Senators shall be appointed by the Governor-General acting
in accordance with the advice of the Leader of the Opposition.
(4) Three Senators shall be appointed by the Governor-General acting
in accordance with the advice of the Prime Minister after consultation
with the Leader of the Opposition.
(5) Whenever any person vacates his seat as a Senator for any reason
other than a dissolution of Parliament, the Governor-General shall as soon
as practicable appoint a person to fill the vacancy under the same provisions
of this Article as those under which the person whose seat has became vacant
was appointed.
Purpose of appointment of certain Senators.
40.- In the exercise of the functions conferred upon him by Article
39(4) of this Constitution, the purpose of the Prime Minister shall be
to secure that the political balance of the Senate reflects that of the
House of Assembly at the time.
Determination of questions as to member ship.
45.- (1) The Supreme Court shall have jurisdiction to hear and determine
any question whether-
a) any person has been validly appointed as a Senator ; or
b) any Senator has vacated his seat or is required under Article 43(3)
of this Constitution to cease to perform his functions as a Senator.
(2) Subject to the following provisions of this Article and to the
provisions of Article 43(1) of this Constitution, Parliament may by law
make provision with respect to-
a) the institution of proceedings for the determination of any question
referred to in paragraph (1) of this Article ; and
b) the powers, practice and procedure of the Supreme Court in relation
to any such proceedings.
(3) Proceedings for the determination of any question referred to in
paragraph (1) of this Article shall not be instituted except with the leave
of a Justice of the Supreme Court.
17. It should be noted that Parliament has not seen fit to enact the
provisions contemplated by Article 45(2).
18. For the sake of simplicity, without intending any disrespect to
the office of the Governor-General, having regard to the conventions of
the Constitution and the provisions of Article 79(1):
The Governor-General shall, in the exercise of his functions, act in
accordance with the advice of the Cabinet or a Minister acting under the
general authority of the Cabinet, except in cases where by this Constitution
or any other law he is required to act in accordance with the recommendation
or advice of, of with the concurrence of, or after consultation with, any
person or authority other than the Cabinet
throughout this judgment, any reference to the power of appointment
of senators is not to the Governor-General’s, formal power but to the effective
power of the Prime Minister or Leader of the Opposition, as the case may
be,
19. Shortly after the Prime Minister
and the Leader of the Opposition assumed their respective offices, correspondence
began to pass between them as to the appointment of the Senators under
Article 39(4) which exchange continued up to the appointment of Mrs Tanya
Wright to the Senate on 25 May 2007 and the appointment of Mr Anthony Musgrove
to the Senate on 31January 2008 (the original application having been amended
to envelop that occurrence). Mr Michael Halkitis was appointed on
25 May 2007 but, no issue having been taken by the applicant as to that
appointment, I need say nothing further about it. I set out the substance
of these letters:
8 May 2007
Dear Prime Minister:
Re: Appointment of Senators under Article 39(4) of the Constitution
As you are aware, the Senate consists
of sixteen (16) members (Art. 39(1) of
the Constitution), appointed by the
Governor-General as follows:
(a)
Nine (9) members appointed on the advice of the Prime Minister
(Art. 39 (2));
Four (4) members appointed on the advice of the
Leader of the
Opposition (Art. 39(3)); and
(c)
Three (3) members appointed on the advice of the Prime
Minister after consultation with the Leader of the Opposition
(Art. 39 (4)).
It is in specific relation to (c) above
– the Three (3) Senators that have to be
appointed under Article 39(4) of the
Constitution – that I write this letter.
Article 39(4), as you are aware, is in the following terms . . .
The selection of the three (3) Senators
under Article 39 (4) is, as you
know, controlled entirely by Article
40 of the Constitution which is in the
following terms . . .
As you are aware, the political balance
of the new House of Assembly is as
follows:
Governing (FNM) party . . . . . . . . . . . . . 23 seats
Opposition (PLP) party . . . . . . . . . . . . . 18 seats
Expressing the foregoing seat distribution
in percentage terms, the governing
(FNM) party has 56% of the seats in
the House of Assembly while the
opposition (PLP) party has the remaining
44%.
Thus, in appointing the three Senators under
Article 39(4), you will agree, I
am sure, that the allocation of all three
(3) of these Senate seats to the
Opposition would result in the following political
balance in the Senate:
9 seats or 56.25% of the total (16) for the Government
7 seats or 43.75% for the Opposition
Such a distribution – and none other – would
ensure that “the political balance
of the Senate reflects that of the House of
Assembly”, as mandated by Article
40.
As I should like to settle the list of the
nominees from my party for
appointment to the Senate as soon as possible,
I should be grateful if you
would, at your earliest convenience, confirm
to me that you are in agreement
with the foregoing analysis and that, accordingly,
in exercising your power
under Article 39 (4) of Constitution, you
will appoint the three representatives
of my Party nominated by me, so as to
thereby ensure that the Senate is
composed in a manner that reflects the political
balance of the House
of Assembly, that is to say, 9 seats for the
governing (FNM) party, and
7 seats for the Opposition (PLP) party.
I shall make myself available for the requisite
constitutional consultation
on this matter at your convenience.
Yours sincerely
Perry G. Christie / Leader of the Opposition
_______
17 May 2007
Dear Mr. Christie,
Appointment of Senators under Article 39(4) of the Constitution
I
acknowledge receipt of your letter of 8 May, 2007 concerning the
appointment of three (3) Senators under Article 39(4) of the Constitution.
I am aware
that under Article 39(4) of the Constitution three (3) Senators
“shall
be appointed by the Governor General acting in accordance with the
advice of the Prime Minister after consultation with the Leader of
the Opposition”. I need not remind you that once I have consulted
with you, it is for me alone, as the Prime Minister, to advise the Governor
General of the persons to be appointed Senators under Article 39(4).
I
am minded to accept your recommendation for one of the three (3)
Senators to be appointed under Article 39(4). As to the other two
(2) Senate
appointments under Article 39(4), I propose that Mr Anthony Musgrove a
thirty-three year old Trust Relationship Manager at Cititrust Bahamas
and Ms Tanya Wright, a former banker, Attorney at Law and outgoing
President of the Chamber of Commerce be appointed to the Senate.
I
am satisfied that the above appointments would secure that the political
balance of the Senate reflects that of the House of Assembly as required
by
Article
40 of the Constitution.
I
will make myself available for a meeting with you to discuss the above
Senate
appointments.
Yours sincerely
Hubert
A Ingraham / Prime Minister
_______
18 May, 2007
Dear Prime Minister,
I acknowledge receipt of your letter of 17 May, 2007 in reply to mine of 8th instant.
You are absolutely
correct that once you have consulted with the Leader of the
Opposition
it is for you, and you alone, as Prime Minister, to advise the
Governor-General
of the persons to be appointed Senators under Article 39 (4).
It is
equally correct, however, that in advising the Governor-General you are
constrained
by Article 40 which sets out the purpose – and the only purpose –
that must
guide you in selecting the three senators under Article 39(4). In
this
regard,
it bears reiterating that that purpose is to secure that when the Senate
is
looked
at as a whole, its composition reflects the political balance of the House
of Assembly.
I need
hardly remind you that the political balance of the new House of
Assembly
consists of only two political elements: the governing Free National
Movement
(“FNM”) and the opposition Progressive Liberal Party (“PLP”).
In
contrast
to recent Assemblies, there are no independent members nor other
parties
represented in the new House of Assembly. represented in the new
House
of Assembly.
As pointed out
in my letter of the 8 May, the 23 – 18 distribution of seats as
between
the FNM and PLP translates into a political balance of 56% to 44% in
favour
of the FNM in the House of Assembly.
Thus, in advising the
Governor-General on the three appointments in
question, it
is incumbent upon you, as Prime Minister, to secure that these
particular appointments,
when added to the other 13 appointments (9 for the
Government,
4 for the Opposition), will cause the Senate to reflect the political
balance of the
House of Assembly. This is what Article 40 demands be done.
It cannot be
emphasized enough that only the allocation of all three of the
senatorial appointments
under Article 39(4) to the PLP will achieve the political
balance mandated
by Article 40. As explained previously, such an allocation
would result
in a 9-7 split in the Senate, or 56.25% for the FNM and 43.75%
for the PLP,
which reflects the political balance in the House of Assembly
mandated by
Article 40.
I must again emphasize that the only purpose that can guide the Prime Minister in the selection of Senators under Article 39(4) is to secure that the final composition of the Senate (as a whole) will reflect the political balance of the House of Assembly. The intrusion of any other purpose into the deliberative process, or the application of any criteria that would result in the political balance of the House of Assembly not being reflected in the Senate, will lead you into grave constitutional error and thereby create a justiciable issue of considerable importance.
You are also aware, I an
sure, that the mere statement that you are satisfied
that your appointments would
secure the requisite political balance (see
penultimate paragraph of
your letter) does not give you any insulation from judicial
scrutiny if it is apparent
– as indeed it is from your very same letter – that as a
result of your having ignored
or misapplied the specific and mandatory
prescriptions of the Constitution,
the requisite political balance will, in fact, not be
secured.
Turning to the specific provisional
recommendations that you have made, I
am sure you are aware that
neither Tanya Wright nor Anthony Musgrove is a
Member or, as far as I am
aware, a supporter of the PLP. In fact, Mr Musgrove is
a well-known FNM activist
who in fairly recent times was widely known to be
interested in securing a nomination to run as a candidate for
the FNM. Mrs Wright, as far as I am aware, is an
individual who professes to be politically neutral.
In any case, she will readily
confirm to you, I am sure, that she is not a member of
the PLP.
Since neither Mrs Wright
nor Mr Musgrove is a member of the PLP, the
political balance of 9-7
that needs to be reflected in the Senate under Article 40
could hardly be achieved
by the appointment of either of them to the Senate. For
this reason, I cannot possibly
agree – and I do not agree – to either of them
being appointed.
In the circumstances, I would
recommend that you to advise the Governor
General to appoint three
(3) persons as Senators under Article 39(4) of the
Constitution from among
the following four (4) persons whose names are
presented in alphabetical
order and who are member of the PLP:
Michael Halkitis
Raynard Rigby
Fayne Thompson
Ricardo Treco
Finally, I should like to state for the record
that I do not understand what you
mean when you state that “I am minded to accept
your recommendation for one
of the three Senators to be appointed under
39(4):” This is rather infelicitously
worded because on one reading it suggests
that I have only asked for one
Senator to be appointed in favour of the PLP
under Article 39(4). As you very
well know, however, my letter of 8 May 2007
specifically recommended that
all three senators be appointed in favour
of the PLP, as indeed my present letter
now reiterates.
It is my sincere hope that you will re-visit
the position outlined in your letter in
light of the foregoing submissions and that
you will agree that the selection of
three of the four persons I have recommended
will enable you to fulfil the
constitutional requirements imposed upon you,
as Prime Minister, under
Article 40 of the Constitution.
Needless to say, I shall make myself available
for consultation with you on the
recommendations that I have made, or indeed
on any other aspect of this matter.
Perry G. Christie
_______
18 May 2007
Dear Mr. Christie
I acknowledge receipt of
your letter of 18 May 2007 concerning the captioned
matter.
I am aware that in exercising
my functions under Article 39(4) my purpose
“shall be to secure that
the political balance of the Senate reflects that of the
House of Assembly at the
time”, as is clearly stated in the penultimate paragraph
of my letter to you dated
17 May 2007.
Article 40 does not require
the Prime Minister to put forward the names of persons
who are members of one particular
political party or another, based on the
percentage of seats held
by one or other of the political parties in the House of
Assembly at the time.
If that were the true construction of Articles 39(4) and 40,
the advice given to the
Governor General would not necessarily be that of the
Prime Minister. If
I were to simply advise the Governor General to appoint three
of the four persons recommended
by you in your letter of 18 May 2007, it would
be you, as Leader of the
Opposition, rather than me, as Prime Minister, who
would in effect be advising
the Governor General.
I intend to advise the Governor
General to appoint Michael Halkitis, who you
recommended in your letter of
18 May 2007 and Tanya Wright, whom I
recommended in my letter of 17
May 2007 as Senators under Article 39(4).
Please let me have your recommendations
for a third appointment under
Article 39(4).
I will make myself available for further consultation in this matter.
Hubert A Ingraham
_______
20 May
2007
Dear Prime
Minister:
I acknowledge
receipt of your letter of the 18 May 2007 in reply to mine of the
same date.
I also refer to our telephone conversation yesterday afternoon.
I very
much regret that you still do not accept the proposition stated in my two
earlier
letters, namely, that Article 40 of the Constitution requires that you
advise
the Governor General to appoint three (3) PLPs to the three (3) Senate
seats under Article 39(4) since it is only by doing so that the political
balance in the House of Assembly can be reflected in the Senate.
Insofar
as you have expressed your intention to appoint Mrs Tanya Wright to
one of
the three Senate seats in question . . . in spite of my protestation
that she
is not
a member of the PLP . . . it follows that you do not accept the proposition
that all
three Senate seats under Article 39(4) must be filled from among the PLP
after
consultation between the Prime Minister and the Leader of the Opposition.
Indeed
the position that I have adopted in this matter has now been fortified
by a careful
review of the genesis and development of Article 40 of our
Constitution.
In this regard, you may be interested to know that when the first
draft
of the Constitution was circulated by the British Government, Article 40
was decidedly
different from what it eventually became (and has remained ever
since).
In that
original draft, Article 40 would have vested a very wide discretion in
the
Prime
Minister in appointing the three Senators under Article 39(4). Indeed
Article
40 would merely have required the Prime Minister to be “guided by the
general
consideration that the distribution of seats between the parties in the
House
of Assembly should be reflected in the Senate.”
It was your predecessor
as Leader of the Free National Movement, the late
Sir Kendal Isaacs
Q C, who, in his capacity as the then Leader of the Opposition,
objected in
writing to the original formulation of Article 40. He submitted that
the
Prime Minister
should have “little, if any, discretion” in selecting Senators under
Article 39(4);
that instead Article 40 should be re-cast so as to make it
“mandatory”
for the Prime Minister to appoint the three Senators under Article
39(4) in a way
that would secure that the distribution of seats as between the
parties in the
House of Assembly would be reflected in the Senate.
Mr Isaacs’s submission
was, in fact, accepted by both the Bahamian
Government and
Opposition and, of course, by the British Government as well.
This was reflected
in the final draft of the Constitution, Article 40, as you know,
has remained
unchanged ever since.
Thus, it
is my view, again, that the intention of the framers of the Constitution
was that there
should be “little, if any” discretion in the Prime Minister under
Article 40;
that instead it should be mandatory that he select Senators under
Article 39(4)
in a way that would secure (i e guarantee) that the political balance
in the House
of Assembly (i e the relative numerical distribution of seats as
between the
rival parties) is mirrored in the final distribution of seats in the Senate
(bearing in
mind that the Government and Opposition each have 9 and 4 seats in
the Senate to
begin with).
Applying that
approach to the circumstances that have arisen in consequence
of the recent
General Election that returned 23 FNMs (or 56%) and 18 PLPs (or
44%) to the
House of Assembly, it would be completely correct to say that in
selecting the
three Senators under Article 39(4), the Prime Minister’s job
essentially
is to facilitate the wishes of the Leader of the Opposition since all three
Senate Seats
are exclusively allocable to the Opposition.
Indeed, as previously
submitted, the allocation to all three senate seats to the
Opposition under
Article 39(4) would result in a 9 - 7 split in the Senate
which would
reflect the same political balance in the House of Assembly. I must
again emphasise
that no other allocation of these three seats would meet the
clear and specific
“political balance” requirement of Article 40, as elucidated by
the constitutional
papers to which I have referred and which, incidentally, I would
be pleased to
make available to you and the Honourable Attorney-General should
you not have easy
access to copies thereof.
In the circumstances,
and having regard to the fact that you have already
informed me of your intention to advise the Governor-General
to appoint
Mr Michael Halkitis from among the four names submitted to you in my 18
May
letter, I must
now renew my recommendation that you advise the Governor-
General to appoint
the two additional Senators under Article 39 (4) of the
Constitution
from among the following three (3) persons who are the same
three persons
recommended (along with Mr. Halkitis) in my 18 May
letter (in alphabetical
order):
Raynard Rigby
Fayne Thompson
Ricardo Treco
I shall make
myself available for consultation with you on this matter either
later
today or tomorrow as may be required. In this regard, I am sure that
we are
both cognizant
of the urgency of resolving this matter in advance of the
opening
of Parliament on Wednesday.
Perry G Christie
_______
20 May 2007
Dear Mr Christie
I acknowledge receipt of your letter of May 20, 2007 concerning the appointment of three Senators under Article 39(4) of the Constitution.
I note your assertion concerning the genesis and development of Article 40 of the Constitution. I suppose Sir Kendal Isaacs would feel that his request to former Prime Minister Pindling relating to Senate appointments under Article 39(4) have finally been expanded beyond his written request by a Leader of the Progressive Liberal Party. Needless to say, I do not share your view that it was the intention of the framers of the Constitution “that there should be ‘little, if any’ discretion in the Prime Minister under Article 40”.
Once again I must remind you of the provisions of Article 39(4):
“Three Senators shall be appointed by the Governor-General acting in accordance with the advice of the Prime Minister after consultation with the Leader of the Opposition.”
The Governor-General is to act on the advice of the Prime Minister and not on the advice of the Leader of the Opposition.
The Prime Minister is required to consult with the Leader of the Opposition on the appointment of the three Senators under Article 39(4) and then advise the Governor General as to the persons who are to be appointed under this Article.
If the appointments were to be on the advice of the Leader of the Opposition, Article 39(4) would have stated, as it did in the case of the four Senators appointed under Article 39(3) . . .
If as you contend “the Prime Minister’s job is essentially to facilitate the wishes of the Leader of the Opposition since all three Senate Seats (sic) are exclusively allocable to the Opposition”, I would have no authority to select which three of the four persons you recommended for appointment to the Senate under Article 39(4).
For the record I remind you, Article 79(5) makes it clear the manner in which the power under Article 39(4) is to be exercised.
Further, Article 79(5)(c) makes it abundantly clear that if after consultation with the Leader of the Opposition, there is no agreement as to the persons to be appointed Senators under Article 39(4), “the Prime Minister shall then advise the Governor-General and the Governor General shall act in accordance with that advice”.
I am not prepared to advise the Governor-General to appoint any of the three persons recommended by you in the penultimate paragraph of your letter of 20 May 2007.
I previously consulted you in respect of the appointment of Mrs Tanya Wright and Mr Michael Halkitis to the Senate pursuant to the provisions of Article 39(4) of the Constitution.
Now I consult with you on my intended appointment of Leslie Miller, a former minister in your cabinet and a known supporter of your party, as a Senator under Article 39(4).
I will make myself available until midday tomorrow, 21 May 2007, for further consultation in this matter. After such time I shall advise the Governor General to proceed to make the appointments of Mrs Wright, Mr Halkitis and Mr Miller to the Senate under the provisions of Article 39(4) as stated herein.
Hubert A Ingraham
_______
30 January 2008
Dear Mr Christie,
As you are aware, under Article 39(4) of the Constitution three Senators
“shall be appointed by the Governor General acting in accordance with the
advice of the Prime Minister after consultation with the Leader of the
Opposition”. Two Senators, Mr Michael Halkitis and Mrs Tanya Wright,
have been appointed
by the Governor General pursuant to this provision of the Constitution.
The third Senator has yet to be appointed.
On Wednesday, 23 January 2008, I spoke to you in the Committee Room of the House of Assembly. At that time I informed you that I intended to consult with you formally in accordance with the provisions of Article 39(4) of the Constitution on the appointment of the third member of the Senate and that I intended to propose for your consideration Mr Anthony Musgrove, a trust administrator at Citigroup (Bahamas) Limited, and Mr John Pinder, the President of the Bahamas Public Service Union and President of the National Congress of Trade Unions, to fill the final position in the Senate.
Accordingly, upon further reflection, I now write to you to formally consult you on the appointment of Mr Anthony Musgrove as a Senator under Article 39(4) of the Constitution. I am satisfied that the appointment of Mr Musgrove would secure that the political balance of the Senate reflects that of the House of Assembly.
I will make myself available for a meeting with you today to discuss the above Senate appointment.
Hubert A Ingraham
_______
2 February 2008
Dear Mr Ingraham
I acknowledge the receipt of your letter of Wednesday the 30 January, 2008 with regard to the recommended appointment by you to the Senate of Mr Anthony Musgrove.
By your letter to me of 17 May, 2007 you proposed that Mr Musgrove be appointed to the Senate. You will recall that for reasons outlined in my letter to you of 18 May 2007 I rejected your proposal.
I am satisfied that I have already acted constitutionally in opposition to your appointment of Ms Tanya Wright, and I shall be taking advice as to whether a further action will be necessary in the case of Mr Musgrove.
As you are aware, an action has been taken in accordance with Article 45(1)(a), in which the Court has been invited to declare the advice of the Prime Minister to the Governor General unconstitutional.
I feel constrained to point out that you have chosen this course with regard to Mr Musgrove at a time when the Supreme Court has not yet determined the meaning of the political balance of the Senate, yet in your letter of the 30 January 2008 you have presumed to determine the meaning of the political balance of the Senate reflecting that of the House of Assembly.
Accordingly, I have to confirm that quite apart from my objection to the appointment of Mr Musgrove as an unconstitutional act on your part, I deem it quite improper for me to approve the appointment.
Perry G Christie
_______
20. The sharp differences that arose between these two political leaders
eventuated in this action which, after an initial procedural mis-start,
and subsequent events including the appointment of three Senators and the
resignation of one member of the House of Assembly from membership in the
PLP, thus changing the “balance” among membership to 17 PLP members and
one without party affiliation, this application was framed as an “Amended
Originating Summons” seeking:
A declaration that the decision of the Governor-General to appoint
Mrs Tanya Wright to the Senate on the 25 May 2007 as he must on the
advice of the first respondent was unconstitutional on the following grounds.
The Governor-General’s power to appoint Mrs Wright can only have arisen
under Article 39(4) of the Constitution.
In exercising his power under Article 39(4) of the Constitution, the
Governor-General is required to act “in accordance with the advice of The
Prime Minister [the first respondent] after consultation with the Leader
of the Opposition [the applicant]”.
Under Article 40 of the Constitution, “the purpose of the Prime
Minister [the first respondent] shall be to secure that the political
balance of the Senate reflects that of the House of Assembly at the time”
when exercising “functions conferred upon him by Article 39(4) of this
Constitution”.
As a result of the Constitutional appointments to the Senate under
Article 39(2) and (3) by the first respondent and the applicant respectively
the political distribution before any appointments under Article 39(4)
was that 9 Senators were from the FNM (56.25% of the total) and 4 Senators
were from the PLP (25% of the total).
The political balance of the House of Assembly at the relevant time,
25 May 2007, was that the governing Free National Movement (FNM) had 23
of 41 Seats that is 56.09% of 41 House Seats and the Progressive Liberal
Party (PLP) 18 of 41 Seats that is 43.9% of the 41 Seat total. For
the Senate to reflect the House it must have for the FNM 56.09% of the
Senate 16 Seats which is 8.9744 or (to the nearest number) a seat majority
of 56.25% of 16 and a PLP minority of 7 or 43.75% of the total for an accurate
reflection secured by the Prime Minister according to Article 40.
As a result, the First Respondent could only exercise the functions
conferred on him by Article 39(4) of the Constitution in advising the Governor-General
to appoint the further three Senators in accordance with Article 40 of
the Constitution by advising the appointment of three Senators who were
members of or who have a significant current affiliation with the PLP,
having regard to the fact that the House of Assembly consists of only FNM
and PLP members.
In fact contrary to the Constitutional appointments referred to in
sub paragraph (f) Mrs. Wright is not, and does not purport to be,
a member of the PLP and has no significant current affiliation with the
PLP.
In advising the Governor-General to appoint Mrs. Wright, the first
respondent has therefore acted in breach of Article 40 of the Constitution.
For the same reasons, in appointing or purporting to appoint Mrs Wright
to the Senate under Article 39(4) of the Constitution in reliance on the
unconstitutional advice of the first respondent, the Governor-General has
acted in breach of the Constitution.
Further the first respondent has based his advice to the Governor-General
upon a factually incorrect assertion that Article 40 of the Constitution
had been secured and that the political balance of the Senate reflected
that of the House of Assembly numerically by the appointment of one PLP
and two non PLP persons and would be constitutionally correct.
1A. A declaration that the decision of the Governor-General
to appoint Mr Anthony Musgrove to the Senate on the 31 January 2008 as
he must on the advice of the First Respondent was unconstitutional on the
following grounds:-
(a) The Governor-General’s power to appoint Mr Musgrove can only
have arisen under Article 39(4) of the Constitution.
(b) The sharing of political power between the membership of
the House of Assembly and the political parties is the dominant determinant
factor which controls the political balance of the membership of the Senate
according to Article 40. The FNM has majority control of the membership
of the House with 23 of the 41 members or 56.09% of that membership.
The minority PLP has a membership of 17 of the 41 members or 41.46% of
that membership. This division of power constitutes the political
balance of the House of Assembly.
(c) The number of FNM Senate seats must be a reflection
of their 23 House seats or 56.09%. The percentage of FNM House Seats
of 41 is 23 or 56.09% which must be reflected by the Senate.
In other words, the Senate reflection according to Article 40 must be the
same percentage for the total number of House Members as for 16 Senate
Members.
(d) As a result the first respondent could only exercise the
functions conferred on him
by Article 39(4) of the Constitution in
advising the Governor-General
to appoint the further Senator in
accordance with accordance
with Article 40 of the Constitution by
advising the appointment of a Senator who was a member of or who has
a significant and current affiliation with the PLP having regard to the
fact that the House of Assembly consists of only FNM and PLP
Members and one Independent in the face of the percentage of FNM House
Seats remaining the same and PLP House Seats being 41.46%.
(e) In fact contrary to the Constitutional
appointments referred to in sub-paragraph (f) Mr Musgrove is not, and does
not purport to be a member of the PLP and has no significant current affiliation
with the PLP.
(f) In advising the Governor-General to appoint
Mr Musgrove the first respondent has therefore acted in breach of Article
40 of the Constitution.
(g) For the same reasons, in appointing or
purporting to appoint
Mr Musgrove to the Senate under Article 39(4) of the Constitution in
reliance on the unconstitutional advice of the First Respondent, the Governor-General
has acted in breach of the Constitution.
(h) Further the First Respondent has based
his advice to the Governor-General upon a factually incorrect assertion
that Article 40 of the Constitution had been secured and that the political
balance of the Senate reflected that of the House of Assembly numerically
by appointment of one PLP and two non PLP persons and would be constitutionally
correct.
2. A declaration that in exercising his
functions conferred upon him by Article 39(4) and Article 40 of the Constitution
the First Respondent unlawfully fettered his discretion by virtue of a
pre-determined intention:
(a)
to advise the Governor-General to appoint only one of the
Senators recommended by the Applicant;
(b) to advise the Governor-General to appoint Mrs Wright and
Mr Musgrove to the Senate irrespective of the view of the Appellant and
contrary to the Constitution and
(c) to advise the Governor-General to appoint Mrs. Wright
and Mr Musgrove to the Senate irrespective
of their lack of membership or significant current affiliation with the
PLP.
3. For the above reasons, the Applicant claims
declarations in the terms described in paragraphs 1, 1A and 2 of this Summons.
4. Such further or other relief as to the Court
may seem just and proper.
5. Costs.
21. The applicant swore and filed two affidavits, in the first of which
he avers, so far as is relevant (ignoring the impermissible argumentation
and the recitation from the mouth of the affiant of advice received by
him from his own counsel of record in the case, neither of which, for the
sake of contextual continuity, I have omitted):
6, On 4 April 2007 the Governor
General acting in accordance with my advice as the then Prime Minister,
by Proclamation dissolved Parliament. He then issued Writs for a
General Election of Members to the House of Assembly returnable on 23 May
2007. 2 May 2007 was the day appointed for election of Members to
the House of Assembly.
7. The General Election was held on 2 May 2007. The election was contested by, inter alia, the Progressive Liberal Party (PLP), the political party then with the majority of members in the House of Assembly and the Free National Movement (FNM) the political party that held the majority of members in Opposition. The result of the said election was that 23 members of the FNM and 18 members of the PLP were elected to the House of Assembly.
16. The party political balance in the House of Assembly expressed in seat distribution and in percentage terms is the FNM has 23 Seats or 56.09% of the seats in the House of Assembly and the PLP has 18 or 43.9% of the House of Assembly seats.
17. The FNM and the PLP are the only political parties represented in the House of Assembly for the time being.
21. As a result a letter dated 8 May 2007 was written by me to the first respondent. The first respondent was requested to confirm agreement with my interpretation of Article 39(4) and 40 of the Constitution and appoint 3 PLP Senators.
22. In a response to me dated 17 May 2007 the first respondent categorically affirmed before any consultation with me the following:
“that once I would have consulted with you it is for me alone as the
Prime
Minister to advise the Governor General “ . . .
.
23. In response to the first respondent’s letter of the 17 May 2007 I responded on the 18 May 2007 inter alia that . . .
(iv) neither Mrs Wright nor Mr Musgrove is a PLP. The political
balance of 9 FNM and 7 PLP that needs to be reflected under Article 40
is not achieved by the appointment of either Mrs Wright or Mr Musgrove
to the Senate.
(v) In the circumstances I recommended that the first respondent advise
the Governor-General to appoint 3 persons as Senators under Article 39(4)
from among the following 4 persons: Michael Halkitis, Raynard Rigby,
Fayne Thompson and Ricardo Treco.
24. The first respondent responded on the same day, 18 May 2007
to the effect that Article 40 does not require him to name senators from
one political party or another based on the percentage of seats held by
one or other political parties in the House of Assembly . . .
22. The Prime Minister, in his single affidavit, filed on 16 October 2007, avers:
1. During
General Elections held on 2 May 2007, the Free
National Movement (FNM) won 23 seats in the House of Assembly and
the Progressive Liberal Party (PLP) won 18 seats, which resulted in the
FNM becoming the new government of the Commonwealth of The
Bahamas.
I was appointed Prime Minister by His Excellency the Governor General
on 4 May 2007.
Shortly thereafter, I advised His Excellency to appoint the 9 senators
appointed on the advice of the Prime Minister under Article 39(2) of
the
Constitution, out of the total 16 senators required to be appointed
under
Article 39(1).
On divers dates between 4 and 14 May 2007, the said nine Senators were
appointed by the Governor General by Instrument under the Public Seal.
On 21 May 2007, four senators were appointed by the Governor General on the advice of the Leader of the Opposition pursuant to Article 39(3).
As a result, there only remained the additional three senators to be
appointed in accordance with Article 39(4) of the Constitution.
With a view to effecting the appointment of the said three senators,
by
letter dated 17 May 2007 and subsequent letters and conversations,
I engaged in the requisite consultation with the Leader of the Opposition,
the Rt. Honourable Perry G Christie.
8. There was agreement between the Leader of the
Opposition and
myself with respect to one of the proposed senatorial candidates, Mr
Michael Halkitis, a former PLP Member of Parliament and Parliamentary Secretary
in the Ministry of Finance under the former Government headed by the now
Leader of the Opposition. There was no agreement as to any of the
other proposed candidates.
9, Following the process of consultation,
I tendered my recommendations
to the Governor General
pursuant to Article 79(5)(a), by letters dated
21 and 22 May 2007.
The recommendations in which the Leader of the Opposition did not
concur were referred back to me by the Governor General for reconsideration
in accordance with Article 79(5)(c), by letter dated the 24 May 2007.
Having reconsidered the recommendations, I subsequently tendered
my advice to the Governor General pursuant to Article 79(5)(d), by
letter dated 25 May 2007.
On 25 May 2007, the Governor General appointed Mr Michael Halkitis
as a Senator
On 25 May 2007, the Governor General appointed Mrs Tanya Wright, a banking professional, attorney-at-law, and former President of the Chamber of Commerce, as a Senator
The third of the three senators required to be appointed under 39(4)
has not yet been appointed, and awaits further consultation between
the Leader of the Opposition and myself.
23. In his second affidavit, filed on 20 March 2008, the applicant
states, so far as is relevant and admissible:
One senator has been appointed in accordance with the Constitution
under Article 30 (4) and Article 40 being Michael Halkitis on 25 May
2007. One Senator Mrs Tanya Wright on the advice of the Prime Minister
has been appointed a Senator on 25 May 2007 not in accordance with Article
39(4) and Article 40.
Senator Anthony Musgrove has been purportedly appointed to the
Senate on the advice of the Prime Minister on 31 January 2008 . . .
24. I summarise the submissions advanced by Mr Adderley as follows:
(1) The party political balance which must be reflected in the Senate ought to be ascertained by a determination of a percentage of the total membership of the House total of 41 members. This would result in seven of the 16 seats being allocated to the PLP..
(2) The Prime Minister in his letter of 18 May, wherein he informed the Leader of the Opposition that he intended to advise the Governor General to appoint Mrs Wright made it “obvious” that he would not be guided by Article 40.
(3) “The overriding constitutional purpose in this case requires an exact political balance to be achieved. That purpose is furthered by, and connected to the duty of the Prime minister to consult the Leader of the Opposition, plus as he is clearly the best qualified person to decide, in the interest of ‘political balance’ who is (a) ideologically compatible with his party today, and (b) best able to act as spokesman in the Senate on behalf of his Party. For those reasons, there is a presumption that the Leader of the Opposition’s list should form the basis for the selection of opposition member of the Senate”
(4) “That is not to say that the Prime Minister has no discretion . . . The Prime Minister could, of course choose from among the list submitted by the Leader of the Opposition or ask for additional names to be submitted. . . However, cogent reasons would normally be required to rebut the presumption that, where members of the opposition need to be appointed, the Leader of the Opposition is best placed to identify their connection with the party’s ideology as well as their usefulness to the opposition so as to achieve an effective political balance”
(5) “Article 40 .. . leaves no doubt that the Prime Minister must tender his advice so as to achieve – so far as possible – exact correspondence between the political (i e party) balance in the House of Assembly and that of the Senate. That is the plain meaning of Article 40. The [Prime Minister’s] advice to the Governor General cannot lawfully deviate from that purpose or it will be unconstitutional. . . The applicant relies upon the plain meaning of the Constitution and of Articles 39 and 40 in particular [and] does not invite the Court to give those provisions anything other than their natural meaning.”
(6) While the interpretation of Article 40 is so plain that recourse need not be had to the historical documents including the preliminary drafts of that document, reference to the historical record supports the interpretation contended for by the applicant:
(7) The original draft of Article 40 was that the Prime Minister ‘shall be guided’ by the general consideration that the distribution of seats in the Senate should reflect that in the House of Assembly;
(8) The then Opposition objected on the ground that ”guided” was “not sufficiently mandatory” and that “very little discretion should be given to the Prime Minister in this instance”
(9) It seems clear from the correspondence that the Prime Minister sought to avoid the purpose of Article 40 by advising the appointment of persons who are not members of the PLP or ”ideologically compatible with its present policies”
(10) The Prime Minister was incorrect in purporting to follow the procedure laid out in Article 79 n(5) which relates to “recommendation”, not “advice” which is what Article 39(4) requires. The Constitution provides no equivalent procedure where “advice” is what informs the formal appointment by the Governor General.
(11) In advising the Governor General to make the appointments, the Prime Minister was “acting under a fundamental misapprehension of law”. This is clear from his letter of 18 May in which he states “categorically but erroneously,
‘Article 40 does not require the Prime Minister to put forward the names of persons ho are members of one particular political party or another, based on the percentage of seats held by one or other of the political parties in the House of Assembly at the time.’ “
(12) “This error of law vitiates the [Prime Minister’s] advice. Alternatively, the [Prime Minister] was acting under a material mistake of fact in thinking that the appointment of Mrs Wright and Mr Musgrove would best ensure that the political balance of the Senate corresponds to that of the House of Assembly”
(13) The term “consultation” imports some degree of discretion which, in public law is always constrained by general principles and the overriding purpose of the statute, in this case, the Constitution, and these require the Prime Minister not to “fetter his discretion£, that is to “keep his mind ajar” and not to decide in advance to reject the Leader of the Opposition nominees. When the Prime Minister wrote on 17 May that “I am minded to accept your recommendation for one of the three Senators to be appointed under Article 39(4) before the Leader of the Opposition had even submitted his list to proposed nominees “this constituted a clear fetter of the Prime Minister’s discretion”
25. Mr Adderley submits a number of authorities in support of this plank of his submissions. However, while I accept that certain of the general principles of public law inform the considerations relevant to this case, I am not persuaded that the concept of fettering of a decision maker’s discretion is here relevant and I say nothing further about it.
26. The applicant emphatically rejects the proposition which the respondents appear to attribute to him that the requirement to consult imposes an obligation to accept the views of the person consulted. The Leader of the Opposition accepts that there is no duty on the Prime Minister to accept the advice of the Leader of the Opposition as to which persons to appoint. However, where, as here, the Prime Minister is under a duty to appoint a person from the opposition party when this is necessary to reflect the political balance in the House of Assembly and it may well be that he must choose from among persons recommended by the Leader of the Opposition who “is best placed to know who is associated with a member of his party and who would be an appropriate Senator”.
27. Provided that he acts in accordance with Article 40, the Prime Minister can refuse to appoint persons recommended by the Leader of the Opposition but his decision must be reasonable and not capricious: Associated Provincial Pictures Houses v Wednesbury Corporation [1948] 1 K B 223
28. Prompted by the assertion of Mr Klein for the respondents that the actions of the Governor General in appointing Mrs Wright and Mr Musgrove were unimpeachable, Mr Adderley was at pains to develop an argument as to whether the Governor General is bound to always follow the advice he receives. However, it does not appear to me to be necessary for the Court to follow counsel down this thorny path and I say no more than identify it as an issue pursued in the development of the case.
29 In his written submissions, Mr Adderley identifies the remedies sought as declarations that Mrs Wright and Mr Musgrove have not been validly appointed to the Senate and orders of certiorari quashing their instruments of appointment, although the originating summons does not seek orders of certiorari
30. On the relief of certiorari, as Mr Klein correctly submits:
“[N]o application for such remedy is made in either of the summonses . . . and cannot be raised by dint of skeleton arguments. . . ‘certiorari’ (or any of the prerogative remedies) ought properly be sought in a wholly distinct form of proceedings by way of judicial review”.
31. Of course, if this were an application invoking
the wide powers for the enforcement of fundamental rights under the extraordinary
provisions of Article 28(2) of the Constitution:
(1) If any person alleges that any of the provisions of Articles
16 to 27 (inclusive) of this Constitution has been, is being of is likely
to be contravened in relation to him then, without prejudice to any other
action with respect to the same matter which is lawfully available, that
person may apply to the Supreme Court for redress.
(2) The Supreme Court shall have original jurisdiction-
a) to hear and determine any application made by any person in pursuance
of paragraph (1) of this Article ; and
b) to determine any question arising in the case of any parson which
is referred to it in pursuance of paragraph (3) of this Article,
and may make such orders, issue such writs and give such directions
as it may consider appropriate for the purpose of enforcing or securing
the enforcement of any of the provisions of the said Articles 16 to 27
(inclusive) to the protection of which the person concerned is entitled
:
Provided that the Supreme Court shall not exercise its power under
this paragraph if it is satisfied that adequate means of redress are or
have been available to the person concerned under any other law.
(emphasis added),
an argument for the grant of an order of certiorari might have been
made. However, that provision has no relevance to the present action.
32. Mr Klein identifies seven issues which fall to be resolved in this action:
Preliminary
(1) whether the allegation that
the Governor-General acted in breach of the
Constitution is sustainable;
(2) whether the specific relief
sought by the Applicant may be granted by
the Court under the Article 45 jurisdiction;
what approach should be adopted with respect to Constitutional
interpretation, in particular non-bill of rights provisions;
whether it is permissible for the Court to have recourse to historical
constitutional documents associated with the negotiation process as
an
aid to interpretation;
Main
what is the proper construction of the relevant constitutional provisions
– Articles. 39(4) and 40;
how should “political balance” in Article 40 be interpreted; and
whether, if established, non-compliance with Article 40 renders
the
senatorial appointments invalid.
33. As I have stated at paragraph 28. I do not
consider it necessary to consider Mr
Klein’s submissions challenging the sustainability of the action against
the Governor General who, in any event, is not a party to this action.
34. Mr Klein’s second plank is
that Article 45 creates a “bifurcated jurisdiction” in that paragraph (1)(a)
allows a challenge to the validity of an appointment while paragraph (1)(b)
permits a challenge based on whether the seat has subsequently become vacant
because of some disqualifying factor: Articles 41 and 42 setting out the
qualifications and disqualifications for appointment as a senator:
Qualification for appointment as Senator.
41.- Subject to the provisions of Article 42 of this Constitution,
a person shall be qualified to be appointed as a Senator if, and shall
not be qualified to be so appointed unless, he is a citizen of The Bahamas,
of the age of thirty years or upwards and has ordinarily resided in The
Bahamas for a period of nor less tan one year immediately before the date
of his appointment.
Disqualifications for appointment as Senator.
42.- (1) No person shall be qualified to be appointed as a Senator
who-
a) is a citizen of a country other than The Bahamas having become such
a citizen voluntarily ;
b) is, by virtue of his own act, under any acknowledgement of allegiance,
obedience or adherence to a foreign power or state ;
c) is disqualified for membership of the Senate by any law in force
in The Bahamas enacted in pursuance of paragraph (2) of this Article ;
d) is a member of the House of Assembly ;
e) has been adjudged or otherwise declared bankrupt under any law in
force in The Bahamas and has not been discharged ;
f) is a person certified to be insane or otherwise adjudged to be of
unsound mind under any law in force in The Bahamas ;
g) is under sentence of death imposed on him by a court in The Bahamas,
or is serving a sentence of imprisonment (by whatever name called) exceeding
twelve months imposed on him by such a court or substituted b competent
authority for some other sentence imposed on him by such a court, or is
under such a sentence of imprisonment the execution of which has been suspended
;
h) is disqualified for membership of the House of Assembly by virtue
of any law in force in The Bahamas by reason of his having been convicted
of any offence relating to elections ; or
i) is interested in any government contract and has not disclosed to
the Governor-General the nature of such contract and of his interest therein.
(2) Parliament may by law provide that, subject to such exceptions
and limitations (if any) as may be prescribed therein, a person shall be
disqualified for membership of the Senate by virtue of-
a) his holding or acting in any office or appointment specified (either
individually or by reference to a class of office or appointment) by such
law
b) his belonging to any armed force of The Bahamas or to any class
of person so specified that is comprised in any such force ; or
c) his belonging to any police force of The Bahamas or to any class
of person so specified that is comprised in any such force . . .
(3) For the purposes of sub paragraph (1)(g) of this Article-
35. He submits:
“It is hard to resist the inference that any challenge to the validity
of the appointment of a senator must be based on lack of the qualifications
outlined in Article 41 or the existence of any of the disqualifying factors
enumerated in Article 42. . . Parliament did not seem to contemplate
the possible breach of Article 40 as a disqualifying factor, and therefore,
it must be excluded as being justiciable under Article 45.”
“Article 45 creates a special and exclusive jurisdiction for a challenge to the appointment of a senator or the question of whether a senator has vacated or ought to vacate his seat. . . Not only is this jurisdiction exclusive, it is a restricted jurisdiction, and limits the court to determining the question of whether the senator has been validly appointed”. He cites in support the decision of the Glasgow J in the High Court of Grenada, in Jones v Gibbs and Knight (the Attorney General intervening) (1968) 12 W I R 311, who was satisfied that the applicant before him had been validly appointed to the Senate but “owing to the restricted jurisdiction which the court exercises under [a similar constitutional provision was] unable to grant the relief which the applicants seeks, or any other relief”
36. Mr Klein continues that “whatever the finding of the Court with respect to the interpretation of Article 40, it has no jurisdiction under Article 45 to grant the declarations sought”.
37. As to the relation between Articles 39(4)
and 40, Mr Klein argues that the latter is “ a subordinate provision, whose
effect is only to modify the exercise of the power to make the appointments”
. When the Constitution is read as a whole, especially Articles 39
(2), 39(3), 39(5) (excerpted above at paragraph 16) and 43(1)(g):
The seat of a Senator shall became vacant in the case of a Senator
who was appointed as such in accordance with the advice of the Prime Minister
or in accordance with the advice of the Leader of the Opposition or on
the advice of the Prime Minister after consultation with the Leader of
the Opposition, if the Governor-general, acting in accordance with the
advice of the Prime Minister or in accordance with the advice of the Leader
of the Opposition or on the advice of the Prime Minister after consultation
with the Leader of the Opposition, as the case may be, by instrument under
the Public Seal, declares the seat of that Senator to be vacant
the interpretation being argued for by the applicant would result
in the Leader of the Opposition having the effective power to appoint
the “floating” senators (as Mr Klein describes them) but they would be
removable at the will of the Prime Minister
38. As to the issue of “political balance”, Mr Klein, accepting that Article 40 “ is admittedly ambiguous, both semantically and contextually”, submits that “the more logical meaning to be ascribed to Article 40 is that the distribution of senators based on proportional representation in the House can only relate to the 3 ‘floating senators’ “ and he continues:
“The applicant’s position that strict proportional representation is required to be reflected in the Senate is an attempt to overlay proportional representation over an appointed system [which] is repugnant to the structure and working of the export Westminster model constitutions that feature appointed upper chambers”.
39. I am unable to appreciate how Mr Klein confines the “political balance” requirement to the three floating senators rather than to the Senate as a whole since the government’s majority of nine is secured by Article 39 (2) and the only numerical advantage to the Prime Minister in the three senators would be to top up the government’s majority to 12, that is three-quarters of the Senate, a proportion that would have significance if an amendment to the Constitution were contemplated.
40. On the related issue of the assistance to be obtained from
the historical background, Mr Klein helpfully traces the history of senatorial
appointments in The Bahamas:
“It is suggested that the
Court might have regard to the state of the law prior to 1973, both generally
in relation to the role and purpose of an upper house and specifically
the relevant provisions in the 1963 and 1969 Constitutions. That
discloses that the composition and method of appointing senators was significantly
different in the two preceding Constitutions, as follows:
(1) Article 29 of the
1963 Constitution provided for a Senate consisting of 15
members appointed by the Governor General in the following way:
a) 8 after consultation with the Premier and such
other persons as the
Governor acting in his discretion decided to consult;
b) 5 in accordance with the advice of the Premier
c) 2 in accordance with the advice of the Leader
of the Opposition
(2). The 1969 Constitution
(art. 30) increased the number of Senators to 16
appointed as follows by the Governor:
a) 9 in accordance with the advice of the
Prime Minister
b) 4 in accordance with the advice of the
Leader of the Opposition
c). 3 appointed after consultation with the
Prime Minister and such
other persons as the Governor acting in his discretion may decide to
consult.
The decisive
shift between 1963 and 1969, and especially in 1973, was to
make the
Prime Minister, as leader of the government, the primary determinant of
who the three ‘floating’ senators were. The Bahamas
did not choose a solution of ‘independent’ senators’ nominated by the
Governor General, nor did it choose to maintain the Governor General’s
power to select the floating 3 senators, subject to the goal of proportionality.
Article 40 chose a distinctly ‘political’ approach in which the Prime Minister
decided having regard to the views of the Leader of the Opposition and
the
principle of political balance.”
He then submits that, having regard to the various fora in which the negotiations for independence were conducted – both in The Bahamas and in England – some of the discussions being private – a legitimate evidential question may be raised as to the authenticity and reliability of the material on which the applicant seeks to rely.
41. The final plank in Mr Klein’s case is that, even if the Court were to find non-compliance with Article 40, that should not invalidate the appointments. “It is clear that the Prime Minister had the legal authority under Article 39(4) to advise the appointments and that the G possessed the authority to give effect to it.”
Disposition
42. Nowhere does this application cite the provisions of Article 45
(1)(a) and I repeat here what I stated during the hearing, that the
application must be assumed to have been framed under those provisions.
I go further and declare that, in the absence of that specific provision,
the Court would have no jurisdiction to entertain this application.
I also repeat my observation that, notwithstanding the popular classification
of our Constitution as a “Westminster style” constitution, that description
is misleading (as learned authors such a Professor A Ralph Carnegie has
observed – vide “Floreat the Westminster Model? A Commonwealth Caribbean
Perspective”, (1996) 6 Carib L R 1) because, as is well known by most persons
with a secondary education, at Westminster, the constitution is not to
be found in a single document and operates largely on conventions evolved
out of the political and social experiences of the British people and the
written Constitutions bequeathed to former British colonies in the process
of decolonisation were not uniformly successful in converting these conventions
into “black letter law”. Moreover, a Senate such as our Constitution
creates has no counterpart whatever in the Westminster experience.
In the absence of the jurisdiction specifically conferred on the Court
by Article 45 (1)(a), I would have unhesitatingly found that the appointment
of senators was a purely political exercise, to which no legal right attached,
and it was an exercise in which the Court ought not to interfere.
43. A Constitution is a blend (not always harmonious) of historical assumptions, national aspirations, philosophical principles and legal prescriptions but it is only the last element that is justiciable and this Court, while being mindful of the other components of the constitutional economy, has no more authority to pronounce upon those other elements in a manner that commands obedience than does any casual commentator on the political order expressing views at a social gathering or in letters to the editor of the local newspaper or on a corner soapbox.
44. I have previously opined (in GLINTON and ESFAKIS v INGRAHAM CIVIL (CONSTITUTIONAL) NO. 1644 of 2001):
[w]hile the courts and the law are products of the broad political process by which various (often competing) interests . . . develop a consensus through which the organs of the state pursue such social and economic ends as are deemed appropriate to the particular polity, the courts are constrained to deal only with such matters as the political process distils to “legal” issues and the courts can only provide “legal” solutions. Whenever the court steps beyond these boundaries, it is in a different division of the protean political landscape, an environment where rules different from those of the courtroom operate, a terrain which few judges have the survival skills to traverse and, even where they do, they cease to function as judicial officers.
45. I begin by stating that, threading my way
carefully between what I could and could not consider from the historical
record as an aid to understanding what the framers of the Constitution
intended to achieve in Article 40, I am satisfied that I might have regard
to the following items, to none of which Mr Klein makes challenge of either
authenticity or provenance:
(a) the letter of 25 April 1973 from the Leader of the Opposition,
Mr Isaacs (as he then was) to the Prime Minister, Mr Pindling (as he then
was) where he states, at page 3:
‘Article 40 – we feel that the word “guided” is not sufficiently mandatory.
Very little discretion, if any should be given to the Prime Minister in
this instance. “
(However, like Mr Klein, I am unable to see how Mr Adderley, for the
applicant, argues that Mr Isaacs’s letter creates an “estoppel” on the
part of the respondents who happen to be members of the same political
party as was led by Mr Isaacs in 1973.);
(b) the excerpt from the brief prepared for Lord Balneil at the meeting
chaired by him at the Foreign and Commonwealth Office on 9 May 1973, procured
from the British National Archives, Kew Richmond Surrey:
In particular no definition of steps to be taken is provided by the
Constitution for the Governor-General acting on the “advice” of the Prime
Minister after consultation with the Leader of the Opposition if the Leader
of the Opposition does not concur with the Prime Minister. In which
case there is no Constitutional requirement for the Governor-General to
refer the matter back to the Prime Minister. While the use of “recommendation”
by a 5 step reference under the Constitution does require a reference back
to the Prime Minister by the Governor-General (Article 79(5)(c) if the
Leader of the Opposition does not concur with the Prime Minister.
(c) Comments of the Attorney General on the revised galley proofs of the Constitution to the effect that he understood that “advice” was substituted for “recommendation” after the first draft of the Constitution. He also understood that that substitution of the use of “recommendation” under Article 79(5) was inapplicable to the appointment of the three Senators under Article 39(4)
“Article 39(4)
I appreciate that the words ‘acting in accordance with the
the advice of the Prime Minister’ were substituted for the formula ‘on
the
recommendation of’ at the May 1973 Conference. However, has it been
appreciated that this substitution renders the procedure set out
in
Article 79(5) inapplicable to the appointment of these 3 Senators?
If so,
what if any set procedure is it intended should be followed by the Prime
Minister in consulting the Leader of the Opposition before submitting
names to the Governor-General for appointment?”
.
46. In a “first-past-the-post” system of election
to constituencies, despite the conventional wisdom of “safe” or “marginal”
seats, the great unknown and unknowable question is whether a candidate
was successful on his own merits or because he wore the label of a particular
political party. Accordingly, when the authors of our Constitution
inserted the word “party” in Article 73 (a word, in the sense of “political
party” that does not intrude itself anywhere else in the Constitution):
(1) Whenever there shall be occasion for the appointment of a Prime
Minister, the Governor-General shall appoint as Prime Minister-
a) the member of the House of Assembly who is the leader of the party
which commands the support of the majority of the members of that House,
or
b) if it appears to him that party does not have an undisputed leader
in that House or that no party commands the support of such a majority,
the member of the House of Assembly who, in his judgment, is most likely
to command the support of the majority of members of that House,
and who is willing to accept the office of Prime Minister
(emphasis added)
whatever was intended (and thankfully, it is not an issue that I need
address, despite Mr Adderley’s reliance on it), like the iconic Article
80:
The Prime Minister shall keep the Governor-General fully informed concerning
the general conduct of the government of The Bahamas and shall furnish
the Governor-General with such information as he may request with respect
to any particular matter relating to the government of The Bahamas,
as Mr Klein, in my view, correctly, submits, this is a convention that
has migrated into the Constitution and no court could ever be required
to enforce a claim brought under it. Indeed, I go further and hold
that the Court would be incompetent to pass on any such claim and I would
arrive at the same conclusion even as to what appears to be the imperative
provisions of Article 78(4) in relation to the functions of the Attorney
General:
In the exercise of powers conferred upon him by this Article the Attorney-General shall not be subject to the direction or control of any other person or authority.
In each of these cases, in the event of a disagreement between the “dramatis personae”, the resolution would be political, not legal.
47. Whatever “political balance” means in Article 40, I am wholly unpersuaded that it is synonymous with membership in a political party as Mr Adderley insists. That is too narrow a view and, in any event, following the tortuous discussions that were pursued by the political framers of the Constitution in 1973, the final instructions to the draftsman was “political balance”, not “membership in a political party”.
48. What does “political” mean?. The noun from
which the adjective is derived, “politics”, is one of those
human activities more easily described than defined, At one point
in the continuum of ideas on the subject, one finds the description – variously
attributed to two 19th century European statesmen, Prince Klemens von Metternich,
of Austria and Otto von Bismarck of Germany – of politics as
“the art of the possible, the attainable - the art of the next best”.
Farther along the continuum one finds the definition of politics as “a
strong and slow boring of hard boards; it requires passion as well as perspective”
formulated by the German political economist Max Weber in 1919. It
seems to me incontrovertible that, however viewed, politics involves a
philosophical orientation or preference for how best, through the process
of governance (which itself involves the exercise of choices from among
a range of possibilities) to achieve certain social and economic ends in
the particular polity. Although membership of a political party is
clearly indicative of an individual’s political disposition, it is not
the only determinant. It is apodictic that one of the consequences
of the “two-party” system – as contrasted with multi-party systems – that
the large political party is, in the modern Western practice of representative
democracy, what political scientists describe as “broker parties”, grouping
under one tent a range of views which, at the limits of the breadth of
opinions, may be indistinguishable form the outlook articulated by the
competing party. Kingsley Chigbogu Nwajoku, in “Political parties
and democratic governance in Africa- A case study of Nigeria, 1960 to date”
(available online), after distinguishing “mobilising parties” and those
based on ethnic or religious identity, describes this phenomenon thus:
Broker parties or non-ideological parties . . . can be found in America
and Britain today. The broker parties are not founded on any ideology in
the strict sense of the word, and in most cases aggregate conflicting interest
groups
49. Even if it could be argued that, 50 years ago, electoral contests did provoke an ideological response, in The Bahamas of 2008, when elections do produce a change of government, it is not indicative of any seismic ideological shift.
50. My purpose in diverting into what may appear to be academic irrelevancies is to explain how, in the absence of any guidance from the Constitution itself as to what “political balance” is, the Court – being only required, indeed, only competent, to make a legal decision – albeit a decision that arises in a political context of which the court must remain aware – must navigate a path to the legal solution while avoiding the shoals and shallows of partisan perspectives.
51. I borrow the language of Scalia J in Heller
and hold that “on the basis of both text and history”, Article 40 imposes
a mandatory requirement on the Prime Minister to, whatever the result of
his “consultation” with the Leader of the Opposition and by whatever means
it is pursued, ensure that the three senators appointed under Article 39(4)
of the Constitution, when viewed alongside the appointments under Articles
392) and 39(3) reflect the “political balance” in the House of Assembly.
Without necessarily accepting Mr Adderley’s proposition that Article 40
is the process, not simply the result, I agree that the proper approach
is that argued for by the applicant, that the simple arithmetical formula
of dividing the membership of the Senate (16) by the membership of the
house (41) and multiplying that by the number of seats held by members
of the House who accept the leadership of the Leader of the Opposition
(18) subtracting from this result the number of senators appointed by the
under Article 39(3):
(16 ÷ 41) X 18 = 7
7 – 4 = 3
The application of this formula results in all three of the senatorial
appointments under Article 39(4) in the current Parliament being persons
philosophically predisposed to the policies of the PLP. (The reduction
of PLP members to 17 during the progress of this action is numerically
insignificant.)
52. It is common ground between the parties that the effective power to appoint the three senators under Article 39(4) lies with the Prime Minister and that his duty to consult does not require him to select from a list conceived by the Leader of the Opposition, as Mr Adderley seems to suggest. If this were the case, it would shift the effective power of appointment to the Leader of the Opposition a concept which even the Leader of the Opposition, as applicant in this case, rejects.
53. In arriving at his decision, it is assumed that
the Prime Minister, apart from the constitutional mandate to “consult”
the Leader of the Opposition, would have access to information from a wide
range of sources. After all, information is the coinage of
politics and, logically, a person does not become leader of a political
party (and thus, Prime Minister or Leader of the Opposition) without the
ability to hoard vast reserves of this currency and judiciously use it.
Moreover, it would be naïve to conclude that the exchange of letters
set out at paragraph 19, while probably necessary to memorialise the constitutional
requirement for “consultation”, would have exhausted the exchange of views
between the principals in this exercise and neither of them would have
identified potential senators by top hat lottery, divination or a claim
of celestial illumination. In each case, both the Prime Minister
and the Leader of the Opposition would have proposed individual candidates
for appointment based on the information they would have acquired concerning
each individual and each proposal would have been intended to achieve certain
strategic political ends which, save for Articles 40 and 45 (1)(a) taken
together, would have been none of the Court’s business. Accordingly,
in my view, in the context of matters presumably within his own knowledge,
the Prime Minister was correct when, in his letter of 18 May to the Leader
of the Opposition he stated:
Article 40 does not require the Prime Minister to put forward
the names of persons who are members
of one particular political party or another . . .
While Mr Adderley may be logically correct when he submits that the Leader of the Opposition:
“is clearly the best qualified person to decide, in the interest of ‘political balance’ who is (a) ideologically compatible with his party today, and (b) best able to act as spokesman in the Senate on behalf of his Party”
Article 39(4) confers the effective power on the Prime Minister.
54. I do accept Mr Adderley’s argument that
the requirement of Article 40 for political balance means that the court,
in exercise of its authority under Article 45(1)(a) could find the Prime
Minister’s decision as failing to meet the test of Wednesbury reasonableness.
Nevertheless, the onus is on the applicant to show this to be so and the
ordinary incidents of the burden of proof in litigation means that the
Court must presume that the Prime Minister did not act rashly or irrationally
in determining how each of the three persons appointed under Article 39(4)
would affect the “political balance” of the Senate until the contrary is
proved
.
55. The Prime Minister in his letter of 20
May and in his affidavit states that he followed the procedure for consultation
laid out in Article 79(5).
Where the Governor-General is directed to exercise any function on
the recommendation of the Prime Minister after consultation with the Leader
of the Opposition, the following steps shall be taken-
a) the Prime Minister shall first consult the Leader of the Opposition
and thereafter tender his recommendation to the Governor-General;
b) the Governor-General shall then inform the Leader of the Opposition
of that recommendation and if the Leader of the Opposition concurs therein
the Governor-General shall act in accordance with the recommendation:
c) if the Leader of the Opposition does not concur in the Prime Minister
and refer the recommendation back to him;
d) the Prime Minister shall then advise the Governor-General and the
Governor-general shall act in accordance with that advice.
56, Although Mr Klein suggests that it was “not unreasonable” for the Prime Minister to have done so, in my judgment, he was misadvised that this was the governing procedure because the mandatory requirement of Article 40 takes these appointments outside the several other appointments under various Articles of the Constitution over which the Prime Minister has the effective power of appointment on the basis of his “recommendation”. It is noteworthy that, as I have pointed out at paragraph 45, in the weeks preceding the date of independence, the Attorney General, who it should be remembered was at that time a colonial civil servant, warned that Article 79(5) was not applicable here and that no provision had been made for the resolution of any difference between the Prime Minister and Leader of the Opposition This echoed the warning by the officials in the British Foreign and Commonwealth Office who had prepared the brief for Lord Balneil.
57. The only evidence before the Court as to
the political inclinations of either
Mrs Wright or Mr Musgrove is to be found in the letter of 17 May from the
Prime Minister to the Leader of the Opposition:
As to the other two (2) Senate appointments under Article 39(4), I
propose that Mr Anthony Musgrove a thirty-three year old Trust
Relationship Manager at Cititrust Bahamas and Mrs. Tanya Wright, a former
banker, Attorney at Law and outgoing President of the Chamber of Commerce
be appointed to the Senate.
and the Leader of the Opposition’s reply of 18 May:
Turning to the specific provisional recommendations that you have made,
I am sure you are aware that neither Tanya Wright nor Anthony Musgrove
is a member or, as far as I am aware, a supporter of the PLP. In
fact, Mr Musgrove is a well-known FNM activist who in fairly recent times
was widely known to be interested in securing a nomination to run as a
candidate for the FNM.
Mrs Wright, as far as I am aware, is an individual who professes to be
politically neutral. In any case, she will readily confirm to you,
I am sure, that she is not a member of the PLP
58. Neither Mrs Wright nor Mr Musgrove was made a party to this action and no specific evidence was led as to their political predilections. Moreover, as previously indicated, the Prime Minister took the tactical decision to restrict his participation in this action to the filing of his single affidavit. On the only evidence available to the Court, that “Mr. Musgrove is a well-known FNM activist who in fairly recent times was widely known to be interested in securing a nomination to run as a candidate for the FNM”, though thin as evidence, this uncontroverted assertion suffices to establish that Mr Musgrove’s orientation is such that he would choose to place himself under the parliamentary whip of the FNM and I find that the applicant has made a sufficient showing that the Prime Minister was “Wednesbury unreasonable” in advising the Governor General to appoint Mr Musgrove to one of the three Senate seats under Article 39(4) as conditioned by Article 40. However, the evidence that Mrs Wright “is an individual who professes to be politically neutral [and] is not a member of the PLP” is insufficient to displace the presumption that, notwithstanding that she may not be a member of the PLP, the Prime Minister was satisfied that the requirement of Article 40 was satisfied in her case.
59. In the result, in exercise of the authority conferred on the Court by Article 41(5)(a), I grant the declaration sought by the applicant that Mr Anthony Musgrove was not validly appointed to the Senate and refuse to make the like declaration with respect to Mrs Wright.
60. Each party will bear his own costs in this action.
61. At the close of oral arguments,
I had expressed my gratitude to counsel for their industry and erudition
in preparing their respective cases and i repeat that here. The Court has
been the beneficiary of considerable scholarship directed to discerning
the true meaning of a provision, lodged in the interstices of the Constitution
that has not had to be considered in the 35 years that have passed since
it came into force.
Dated this 5th day of November, 2008
Burton P C Hall, C J