THE EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
ANTIGUA AND BARBUDA
ANUHCVAP2016/0015
BETWEEN:
GEORGE RICK JAMES
Appellant
and
[1] HON. GASTON BROWNE
(Prime Minister of Antigua and Barbuda)
[2] HON. STEADROY BENJAMIN
(Attorney General of Antigua and Barbuda)
Respondents
Before:
The Hon. Mde. Louise Esther Blenman Justice of Appeal
The Hon. Mr. Mario Michel Justice of Appeal
The Hon. Mr. Sydney Bennett, QC Justice of Appeal [Ag.]
Appearances:
Mr. Ralph Francis for the Appellant
Ms. Alicia Aska for the Respondent
____________________________
2018: November 27;
2020: October 13.
___________________________
Civil appeal — Constitutional motion — Sections 69(3) and 70 of
Constitution of Antigua and Barbuda Order, 1981 — Composition of
Cabinet — Whether Prime Minister breached sections 69(3) and 70 of
Constitution by appointing a Cabinet comprised of a majority of elected
members in House of Representatives — Collective responsibility —
Whether collective responsibility provision breached by composition of
Cabinet
On 12th June 2014, following general elections in Antigua and
Barbuda, the Antigua and Barbuda Labour Party led by the first respondent,
The Honourable Gaston Browne, won fourteen of the seventeen seats in the
House of Representatives, with the remaining three seats being won by the
United Progressive Party. Mr. Browne was duly appointed to hold the office
of Prime Minister, and the second respondent, the Honourable Steadroy
Benjamin, was appointed Attorney General and Minister of Legal Affairs. Mr.
Browne appointed eleven of the other elected members to the House of
Representatives to be Ministers of the Government and members of his
Cabinet, with the result that the Cabinet was comprised of thirteen of the
seventeen members of the House of Representatives.
The appellant, Mr. George Rick James, 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 Cabinet, Mr. Browne acted in
breach of sections 69(3) and 70 of the Constitution of Antigua and Barbuda
Order, 1981. Mr. James’ argument was that where a majority of the House of
Representatives is appointed to the Cabinet, the Executive arm of
government has control over Parliament and not the other way around, as
contemplated by the constitutional doctrine of collective responsibility
and sections 69(3) and 70 of the Constitution.
The matter was heard by Clare Henry J who, by judgment dated 22 nd July 2016, refused to grant the declarations sought. Mr.
James appealed. The main issue before the Court of Appeal was whether Mr.
Browne acted in breach of sections 69(3) and 70 of the Constitution by
appointing a majority of the House of Representatives to Cabinet.
- Held
- dismissing the appeal with no order as to costs, that:
- The Constitution expressly provides for the Governor General 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. 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.
Sections 69(3) and (4), and 70(2) of the Constitution of Antigua and Barbuda Order, 1981 Cap.
23 of the Revised Laws of Antigua, 1992 applied.
- Notwithstanding their familiarity with the doctrine of collective
responsibility, the framers of the Constitution 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.
Sections 70(1) of the Constitution of Antigua and Barbuda Order, 1981 Cap.
23 of the Revised Laws of Antigua, 1992 applied.
- No award was made as to costs by the trial judge. In this case, the
appellant has not acted unreasonably in prosecuting his claim or the
appeal. Accordingly, no order for costs should be made against him.
Rule 56.13(6) of the Civil Procedure Rules 2000 applied.
JUDGMENT
[1] BENNETT JA [AG.]: This appeal is against the decision
of Clare Henry J dated 22nd July 2016 refusing the appellant’s
claim for declarations that the first respondent had acted in breach of
sections 69(3) and 70 of the Constitution of Antigua and Barbuda Order, 1981
[1]
(“the Constitution”) by appointing a Cabinet of a size which permitted the
Cabinet members to control the proceedings of the legislative branch of
government.
Background
[2] The appellant George Rick James, now deceased, brought the instant
proceedings during his tenure as Secretary of The Free and Fair Election
League Inc. (“FFEL”). The FFEL is a non-profit organization incorporated
under the laws of Antigua and Barbuda. The first respondent is the Prime
Minister of Antigua and Barbuda and leader of the Antigua and Barbuda
Labour Party. The second respondent is the Attorney General of Antigua and
Barbuda.
[3] The proceedings arise out of the following circumstances. On 12 th June 2014, there was a general election in Antigua and
Barbuda. The outcome was that the Antigua and Barbuda Labour Party, led by
the first respondent, won fourteen of the seventeen seats in the House of
Representatives (“the House”), with the remaining three seats being won by
the United Progressive Party. The first respondent was duly appointed to
hold the office of Prime Minister. The second respondent was appointed as
Attorney General and Minister of Legal Affairs. On·16th
June 2014, the first respondent appointed eleven of the other elected
members to the House of Representatives to be Ministers of the Government
and members of his Cabinet, with the result that the Cabinet was comprised
of thirteen of the seventeen members of the House of Representatives.
[4] The appellant (who was the claimant below), on 8th December
2014, filed a claim in the High Court alleging that, by appointing eleven
of the elected members of the House to serve in his Cabinet, the first
respondent exceeded his authority under Section 69(3) of the Constitution.
[5] It was argued that section 70(1) of the Constitution, which provides
that ‘there shall be a Cabinet… which shall have the general
direction and control of the Government and shall be collectively
responsible therefor to Parliament’, directly impacts the number of persons
who may be appointed as Cabinet members. That section, it was urged,
involves the concept that it is for Parliament to control and supervise the
Executive. If however a majority 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. On that premise, it was submitted
that the Prime Minister is constrained in the number of persons that he may
appoint to the Cabinet and that he is so constrained notwithstanding the
express terms of section 70(2) of the Constitution which provides for the
Cabinet to be composed of the Prime Minister and ‘…such number of
other Ministers (of whom one shall be the Attorney-General), as the Prime
Minister may consider appropriate’. This provision, it was urged, was
subject to the requirement in section 70(1) that the Cabinet so appointed
‘…shall be collectively responsible… to Parliament’.
[6] 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. 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. 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.
[7] By judgment delivered on 22nd July 2016, Clare Henry J
refused to grant the declarations sought. In coming to her decision, the
learned judge reasoned:
(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.
[2]
(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.
[3]
(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.
[4]
(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’.
[5]
(v) Ministerial accountability does not require any numerical equation for
the Cabinet to operate in accordance with section 70(1).
[6]
(vi) Counsel for the claimant endorsed the views expressed by C.O.R.
Phillips, QC in 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.
[7]
(vii) The framers of the Constitution were fully aware of the doctrine of
collective responsibility. It dates back 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 any prescribed maximum
number for the size of the Cabinet; and (c) it is expressly directed that
the Cabinet consist of such number of other Ministers ‘as the Prime
Minister may consider appropriate’.
[8]
(viii) On the record before the court, the claimant (appellant) has not
shown that the first defendant (first respondent) has violated section
70(1) or section 69(3) of the Constitution.
[9]
The appeal
[8] The appeal is brought on two grounds. Firstly, the appellant complains
that the learned judge erred in rejecting the proposition that ‘collective
responsibility to Parliament’ in the context of section 70(1) of the
Constitution refers, in practical terms, to collective responsibility of
the Cabinet to the seventeen-member House of Representatives.
[9] I agree with this submission. True it is that, as provided in section
27 of the Constitution, Parliament consists of ‘…Her Majesty, a
Senate and a House of Representatives’. The reality is however that
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.
[10] This is however beside the point. The issue of underlying importance
in this appeal is whether it has been shown that the first respondent has,
by appointing eleven members of the House of Representatives to Cabinet,
breached the provisions of section 70(1) or section 69(3) of the
Constitution. I entertain no doubt that he has not.
Discussion and Conclusion
[11] Save for the matter outlined above, I would dismiss the appeal,
basically for the reasons given by the learned judge. Section 69(3) of the
Constitution provides:
“Subject to the provision of section 82 of this Constitution and subsection
(4) of this section there shall be, in addition to the office of Prime
Minister, such other offices of Minister (including Minister of State) of
the Government as may be established by Parliament or, subject to the
provisions of any law enacted by Parliament, by the Governor-General,
acting in accordance with the advice of the Prime Minister.”
There being no other legislation on the subject, the effect of this
provision is to mandate that the offices of Minister of the Government
shall, in addition to the office of Prime Minister, be the office of
Attorney General and such other offices of Minister (including Minister of
State) of the Government as may be established by Parliament, or the
Governor General acting in accordance with the advice of the Prime
Minister.
[12] By section 69(4) of the Constitution, the Ministers of Government
other than the Prime Minister ‘shall be such persons as the Governor
General, acting in accordance with the advice of the Prime Minister, shall
appoint from among the members of the House and of the Senate’. By section
70(2), the Cabinet shall consist of the Prime Minister, the Attorney
General and ‘such number of other Ministers… as the Prime Minister
may consider appropriate’. Thus, the Constitution expressly provides for
the Governor General to:
(i) establish such offices of Minister of Government as the Prime Minister
may advise; and
(ii) appoint to such offices the persons nominated by the Prime Minister
from the members of the House and/or Senate.
[13] The Constitution further provides for the establishment of a Cabinet
from among the Ministers so appointed, and (other than for the office of
Attorney General) leaves to the Prime Minister and not to the courts the
power to determine the composition of the Cabinet and the number of Cabinet
members. Save as set out above, there are no legal restrictions as to the
number or qualifications of the members of the Cabinet, its procedures or
practices. Traditionally, these matters lay in the field of convention.
Conventions on one view are no more than generally accepted political
practices with a record of successful application or precedent. They are
rules of structure, procedure or principle, established by precedent,
consolidated by usage and generally observed by all concerned but which are
generally not justiciable in the courts.
[14] Section 70(1) of the Constitution provides that Cabinet ‘shall have
the general direction and control of the Government and shall be
collectively responsible therefor to Parliament’. This provision sets out
the principle of the accountability of the Executive (i.e. the Cabinet) to
the people’s representatives in the Parliament and, through them, to the
people themselves. In my view, the primary implication of this provision is
the accepted obligation on the Government to resign where it loses a vote
in the House of Representatives on an issue of confidence.
[15] The doctrine of collective responsibility is codified in the
Constitution only to the extent of the broad statement in section 70(1)
above. The practical effect and main implications of the doctrine are,
firstly, and as stated above, 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 with
regard to such matters.
[16] The appellant complains that, as a result of the comparative size of
the Cabinet and the operation of the doctrine of collective responsibility,
the Cabinet has been elevated to a position of ascendancy and control over
the House. I do not overlook the modern reality of a dominant executive
entrenched by party discipline and institutionalized advantages in the
procedures of Parliament. It is important however to understand that 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.
[17] As pointed out by the learned judge, 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. Notwithstanding their
familiarity with this doctrine, they put in place the before mentioned
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.
[18] In my view 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.
Costs
[19] No award was made as to costs by the trial judge. In my view, the
appellant has not acted unreasonably in prosecuting his claim or the
appeal. Accordingly, and consonant with rule 56.13(6) of the Civil Procedure Rules 2000, no order for costs should be
made against him.
Conclusion
[20] I would order that the appeal is accordingly dismissed, with no order
as to costs.
I concur.
Louise Esther Blenman
Justice of Appeal
I concur.
Mario Michel
Justice of Appeal
By the Court
Chief Registrar