Both the ruling Dominica Labour Party (DLP) and the Antigua and Barbuda Labour Party were victorious in the Eastern Caribbean Supreme Court (ECSC) system today. At the High Court in Dominica, Justice Glasgow sided with the Applicants (the DLP) to strike out all 10 petitions filed by the opposition United Workers Party (UWP), while at the ECSC of Appeal, the Antiguan Labour Party won an appeal against a 2016 judgment from the High Court in Antigua.
This article shall, however, focus on the Antiguan case No. ANUHCVAP2016/0015 between Mr. George Rick James and Mr. Gaston Browne, the Prime Minister of Antigua and Barbuda and Hon. Steadroy Benjamin, the Attorney General as the full impact of the strike out of the election petitions in Dominica is being fully digested.
The Antiguan case addresses the constitutionality of the concentrated constitutional powers of the Prime Ministers of the Eastern Caribbean states in appointing their cabinet of Ministers and the dominating influence of that power over Parliament/the legislature, notwithstanding the much talked about constitutional principles of “Separation of Powers in a Westminster model of government,” “the supremacy of Parliament in a three-branch system of government,” and the constitutional “doctrine of collective responsibility.”
On12 June 2014, following general elections in Antigua and Barbuda, the ABLP won fourteen (14) of the seventeen (17) seats in the House of Representatives, with the remaining three (3) seats being won by the United Progressive Party.
Mr. Browne was duly appointed to hold the office of Prime Minister. He then appointed the Attorney-General and Minister of Legal Affairs along with eleven (11) of the other elected members to the House of Representatives to be Ministers of the Government and his Cabinet, with the result that the Cabinet was comprised of thirteen (13) of the seventeen (17) members of the House of Representatives.
Mr. George Rick James (now deceased), who was the Secretary of “the Free and Fair Election League Inc. (“FFEL”),” a non-profit organization, filed a claim in the High Court against Messrs. Browne and Benjamin in their respective capacities seeking declarations to the effect that, by his appointment of eleven elected members of the House of Representatives to his Cabinet, Prime Minister Mr. Browne exceeded his authority under Sections 69(3) and 70 of the Constitution and acted in breach of the Constitution of Antigua and Barbuda Order, 1981.
Mr. James’ argument was that where most of the members of the House of Representatives are appointed to the Cabinet. Hence, the Executive arm of government has control over Parliament (the legislature) and not the other way around as contemplated by the constitutional doctrine of collective responsibility.
The matter was heard at first instance by Clare Henry J who, by judgment dated 22 July 2016, dismissed the claim and refused to grant the declarations sought. Mr. James then appealed the judgment. The main issue before the ECSC of Appeal was whether Mr. Browne acted in breach of sections 69(3) and 70 of the Constitution by appointing most of the House of Representatives to his Cabinet.
In dismissing the appeal with no order as to costs, the ECSC of Appeal held that the Constitution expressly provides for the Governor General (Head of State) to establish offices of Minister of Government and to appoint to such offices persons nominated by the Prime Minister from the members of the House of Representatives and/or the Senate.
According to the court, the Constitution further provides for the establishment of a Cabinet from among the Ministers so appointed and gives the Prime Minister and not the courts the power to determine the composition of Cabinet and the number of Cabinet members. Outside the express provisions of the Constitution, there are no legal restrictions as to the number or qualifications of the members of the Cabinet.
The Court held that notwithstanding their familiarity with the doctrine of collective responsibility, the framers of the Constitution have put in place clear arrangements for the establishment of the offices of Ministers of Government, for the appointment of parliamentarians to such offices by the Governor General on the advice of the Prime Minister, and for the formation of the Cabinet and the pre-eminent role of the Prime Minister in that regard. It is not the function of the courts to usurp the discretion expressly given to the Prime Minister by the Constitution to determine the number of ministers in the Cabinet, and it is decidedly not the function of the courts to do so with a view to altering or affecting the balance between the legislative and the executive branches of government.
Section 70 (1) of the Constitution of Antigua, which provides that there shall be a Cabinet… which shall have the general direction and control of the Government and shall be collectively responsible therefore to Parliament, directly impacts the number of persons who may be appointed as Cabinet members. It was argued that this section involves the concept that it is for Parliament to control and supervise the Executive. If, however, most of the House of Representatives is appointed to the Cabinet, it will be the Executive which will control Parliament and not the other way around.
Section 69(3) empowers Parliament to establish offices of Minister (including Minister of State) of the Government, and for those offices to be filled by the Parliament; or subject to the provisions of a law enacted by Parliament for that purpose, for those offices to be established by the Governor General and filled by the Governor General acting in accordance with the advice of the Prime Minister. The alleged breach of the section was apparently the advice given by the first respondent to the Governor General for the appointment of eleven Ministers of the Government
In summary, the Appellant argued that because all but four members of the seventeen-member House of Representatives were members of the Cabinet and have collective responsibility, the Cabinet has supremacy over Parliament, which would be unconstitutional. On this basis it was urged that the first respondent had by the actions complained of, violated sections 70(1) and 69(3) of the Constitution.
By judgment delivered on 22ndJuly 2016, Clare Henry J refused to grant the declarations sought. In coming to her decision, the learned judge reasoned accordingly;
(i) Antigua and Barbuda has adopted the Westminster model of government which provides for three distinct branches of government: the Legislature, the Executive and the Judiciary.
(ii) Section 27 of the Constitution establishes the Parliament and provides that it shall consist of Her Majesty, a Senate and a House of Representatives. Parliament does not refer to the two houses of Parliament individually, for neither house has the authority to legislate on its own. Approval of a Bill normally requires the approval of the Senate and the House and the assent of the Governor General on behalf of Her Majesty
(iii) Section 70(1) of the Constitution provides for a Cabinet which can only consist of Government Ministers who are either Senators or members of the House. The section prescribes no maximum number of Cabinet members and leaves to the discretion of the Prime Minister the number of Ministers in his Cabinet;
(iv) Section 70(1) places the general direction and control of the Government under the purview of the Cabinet and having done so, further provides that Cabinet ‘shall be collectively responsible [for the general direction and control of the Government] to Parliament’;
(v) Ministerial accountability does not require any numerical equation for the Cabinet to operate in accordance with section 70(1);
(vi) Counsel for the claimant endorsed the views expressed by C.O.R. Phillips,QCin his Essay ‘The Rape of the Constitution’, where he pointed out that a Minister who is a member of Cabinet is bound by the doctrine of collective responsibility not to reveal to the public what position he took during the discussion of any Cabinet decision, concluded that the House is ‘hamstrung’ being comprised mainly of Ministers who are unable to voice their real opinion on· any measure brought before Parliament and complained that that the Cabinet has been elevated to a position of ascendancy and control over the House;
(vii) The framers of the Constitution were fully aware of the doctrine of collective responsibility. It dates to at least the early 19th century. Yet, the framers of the Constitution chose to put in place a system of government where;
(a) Cabinet members are chosen from among the members of Parliament;
(b) there is an absence of a prescribed maximum number for the size of the Cabinet; and
(c) it is expressly directed that the Cabinet consist of such a number of other Ministers as the Prime Minister may consider appropriate.
The court held that on the record before it, Mr. James – the claimant(appellant) did not show that Prime Minister Brown had violated section 70(1) or section 69(3) of the Constitution. The reality is that the collective responsibility of Cabinet to Parliament is assured only by the convention that the Government of the day must collectively resign if its policy is rejected by its defeat on matters of substantive importance and/or which reflect a lack of confidence in its policies. The doctrine of collective responsibility is codified in the Constitution only to the extent of the broad statement in section 70(1).
The practical effect and main implications of the doctrine are that by convention a government which loses a vote in the House of Representatives on an issue of ‘confidence must collectively resign, and secondly, that an individual Minister who publicly dissents from government policy is expected to resign, or may be dismissed. This envisages political consequences rather than judicial sanction about such matters.
The aim of the doctrine of collective responsibility is to bolster the efficacy and authority of the Executive rather than seeking to contain its power. It requires the individual members of the Government to collectively take responsibility for, and collectively endorse, the decisions and policies of the Government, irrespective of their individual opinions and disagreements. This political convention allows the Government to face the legislature and public as one, the embodiment of both the efficacy and singularity of the Executive power of the State. The alternative is a scenario in which the responsibility of the Government would be diminished, and its policies fragmented since individual members could casually acquiesce in decisions from which they are free to dissociate themselves publicly.
The Court of Appeal quoted the learned High Court judge who stated, “not only were the framers of the Constitution familiar with the doctrine of collective responsibility and of its effect in enhancing the power and authority of the Executive, they have enshrined it in section 70(1) of the Constitution. In that regard, the court was of the view that it is not the function of the courts to usurp the discretion expressly given to the Prime Minister by the Constitution to determine the number of Ministers in his Cabinet, and it is decidedly not the function of the courts to do so with a view to altering or affecting the balance between the legislative and the executive branches of government.