HEADLINES

THE GOVERNOR GENERAL’S ROYAL PEROGAGTIVE AND THE CARIBBEAN CONSTITUTIONAL SETTLEMENT

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By Kenrick W. Clifton and Matondo Mukulu

Introduction

When the UK’s Supreme Court delivered the radical decision in the case of R (on the application Miller) v The Prime Minister [2019] UKSC 19, one of the first questions posed to us was: does this mean anything for the Caribbean? We understood the nature of the question, as after all we in the Commonwealth Caribbean have adopted the Westminster system of government and of course members of the UK’s Supreme Court also sit as members of the Judicial Committee of the Privy Council, which is still the final appellate court for a majority of the Islands in the English speaking Caribbean.  Additionally, we are acutely aware of the fact that, as cases such as Re Blake [1994] 47 WIR 174 tell us, there are still prerogative acts by the Governor Generals in these states, which are regarded to be beyond the reach of the Court, as they are deemed to be non-justiciable. So will the decision and the reasoning it employs, reverberate throughout the region and should we take lessons from it?

We accept of course that there are principal constitutional differences between the UK and the Caribbean as throughout the Commonwealth Caribbean we have a written or legal constitutions whilst the UK does have an unwritten/political constitution and having witnessed both systems at play, we must accept that there are significant differences in political culture. However, in short, we do think that this decision from the UK Kingdom’s Supreme Court does have potential implications for the Commonwealth Caribbean countries, but before advancing those views, we must start at the beginning.

Background

As we all know the UK, through an indicative referendum in June 2016 took a decision that its relationship with the European Union, which commenced in 1972, should come to an end in its current form.  That was just the start as there are processes to be adhered to, and the main one, that the UK should leave with an agreement negotiated within two years of the triggering of the process of leaving, failing which they will leave without an agreement. Boris Johnson, who succeeded Theresa May as Prime Minister in July 2019, takes the view that he will be leaving the UK by the 31st October 2019, even if he has no withdrawal agreement. A large section of the UK’s Parliament does not agree that the UK should leave without a deal. Mr Johnson, a man not short on hubris, in pressing on, announced that he would be advising Her Majesty that she should prorogue Parliament, as only she can through the exercise of her prerogative power. In practical terms, he would be advising the Queen to bring the session of Parliament to an end. Once that session ends, there is usually a short break of five days, after which a new session will commence, which is marked by the reading of what we in the Caribbean refer to as the “Throne Speech”. Her Majesty had no choice, in accordance with constitutional convention, but to take his advice, after-all he is the leader of her government.

Impact of Prorogation

The practical impact of this is that it would have meant that Parliament would not have sat for a total five (5) weeks, thus precluding any further debate, some way, on the issue of Brexit.  The PM said that as a new PM he wanted to start a new Parliamentary session and set out his agenda in a Queen Speech. Only his close aides and Cabinet colleagues believed that this was not designed to limit the role of Parliament in the run up to the 31st October 2019. In other words, shut down Parliament and there can be no scrutiny of ministers. This was in the mother of all Parliaments. During the final week of Parliament prior to what we now know was a failed attempt at prorogation, Parliament enacted a statute [The European Union (Withdrawal (No2) Act 2019] which in effect precludes the PM from leaving the EU without first getting a deal, which has to be approved by Parliament. Prorogation is not anything which is strange to us in the Caribbean, as it takes place throughout the Caribbean and it is done by the exercise of royal prerogative.

All eleven (11) Justices told Mr Johnson that the advice given to the Queen, because of its impact and in the absence any justification was unlawful. Constitutional experts have applauded the decision and are of the view that this decision which has served to check an Executive that has gone rogue. By rogue, in this context, we are referring to the fact that by proroguing Parliament the PM was attempting to place Executive action beyond the scrutiny of Parliament. In the present political context, Parliament wanted to ensure that the PM did not do anything, in the run up to the 31st October 2019, that would be inimical to the interest of those who do not wish to see the UK leave the EU without a deal, not only because economists have predicted catastrophe but also because a no deal scenario would result in a return of the hard border between Northern Ireland and Ireland.

Political Impact in the Caribbean

Whilst it is correct that Parliaments in the Caribbean are not supreme, and whilst this was one of the central themes running through the decision, Lady Justice Hale and her fellow Justices whilst not dealing with the question of whether the PM lied to the Queen, was able to return a positive rebuke by reminding us that Parliament’s central role, is that of acting as a check on the Executive and that the UK’s parliament is supreme.

In the Caribbean, with our Bicameral and Unicameral Parliaments, our politics tend to permit the Executive to ride over the parliament, as MPs willingly forget their consciences on a weekly basis as they render support to any policy idea that emanates from the cabinet, with no real scrutiny or attempt at objectivity coming from those MPs who happen to be in the same party as members of Cabinet. This therefore means that the Executive can go rogue at any time. Case in point, the present disagreement over proposed bauxite mining in the Cockpit region in Jamaica. There is a disturbing unison of silence amongst Jamaica Labour Party MPs, despite the fact that there does exists objective evidence suggesting that the Executive’s decision has potential adverse consequences, bordering or amounting to a breach of established constitutional rights. The same silence of the thewless MPs took place in St Kitts and Nevis during the apparently imperious Douglas administration, when despite the fact that there was a motion to hear a vote of no-confidence, not a single MP from the Labour party had the gumption or presence of mind to actually stand up and perform their function as a member of the Parliament, thus literally permitting the Executive to have its way, and Parliament failing to do its job, as a check on the seemingly unbridled power possessed by the Executive.

Flowing and related to the foregoing is the fact that it is important that parliamentarians actually show up for Parliamentary sittings and participate on the parliamentary appointed committees that they have been appointed to, as it is only through attendance and effective participation that an Executive can be checked and kept accountable. The former Jamaican Energy Minister (Andrew Wheathley) in the Andrew Holness government, following his sacking for his involvement in a scandal that rocked his former ministry, failed to show up on numerous sittings of a Parliamentary committee, claiming he was not aware of the fact that he was still a member of the Committee. In Jamaica each of the Houses of Parliament sits once per week, no wonder Ronald Thwaites laments the fact that not one of the twenty (20) private members bills which he has brought to the Lower House of Jamaica’s Parliament, have been considered. An in-active and overly deferential Parliament must be a thing of the past, as a weak Parliament cannot keep the Executive accountable. This we believe is the main lesson that we can take from the decision.

Legal Impact

Whilst acknowledging the earth shattering impact that the decision has had on political events in the UK and how it has caused a seismic shift in British constitutional law, we cannot make such a positive assessment on its potential impact on the evolution of Caribbean Constitutional Law.  The Court did not venture to distinguish or have a new look at the common law principles which established that the royal prerogative can be challenged via judicial review, as it certainly did not depart from the principles outlined in the CGHQ case [1985] AC 374.  As it did no such thing, Caribbean constitutional law on the issue is not in any danger of being over ruled the next time this matter comes before our local courts. However, for us in the Caribbean the decision and the fact that it effectively leaves our law on the issue of the justiciability of the exercise of the royal prerogative unthreatened, represents a welcome warning. The warning being a simple one:  with a strident Executive as we usually have in the Caribbean, must we now reflect on whether we are still satisfied with the limited avenue for challenge to the prerogative power and does this limited avenue for challenge represent a threat to how we enjoy the civil and political rights that we enjoy under our constitutions?  

The answer for us, to the question posed is yes and we only have to go the decision of the Eastern Caribbean Court of Appeal in Re Blake to see the point being made. Re Blake is a case that was brought to challenge the exercise of the prerogative power by the Governor General of St Kitts and Nevis, after the general elections (1994) in that twin Island State. The election produced a plural result thus denying Dr. Kennedy Simmonds’s People Action Movement (PAM) an outright majority.  Two of the three seats from Nevis went to persons who claimed neutral status (neither willing to formally support Simmonds’ PAM or Douglas’ Labour Party) whilst the third supported the PAM. The GG pursuant to section 52(2) of the Constitution, asked Dr. Simmonds to form a government, as he was the person under the constitution who was “likely to command the support of the majority of the Representatives.” A challenge was brought to the decision of the GG, but it failed, as the court took the view that the GG’s prerogative power conferred upon him a subjective power, which the Court should not enquire into. This is classic GCHQ, and whilst we might have agreed with that decision because the facts were clear, what of the situation where the power is used to achieve an outcome which is undermining to the constitutional rights of a citizen. In other words what if that power is used unlawfully?

Conclusion

We say that the ouster clause contained in the Caribbean constitutions as it relates to the exercise of the prerogative power by the Head of State, cannot remain free from the review of an independent judiciary, as such a clause undermines the principle of the separation of powers and in the absence of an activist type parliament, the Court must not be constrained to perform its function, as ultimately it is the Guardian of the Constitution from which all rights emanate in the region. The United Kingdom by virtue of its size has a parliament that consists of MPS with varying interests and constituencies. This lack of variation in the parliaments of the region renders our parliaments mere supplicants to the Executive and this is reason for us to start this conversation on the role of the Courts in reviewing the exercise of the royal prerogative. To leave it as is, leaves a threat to our constitutional rights.

Honourable Kenrick W. Clifton (Barrister and Attorney) is an elected Town Councillor, Randolph, Mass, USA and Matondo Mukulu is a UK based public law Barrister and Attorney.

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