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    Home » Judgments » Court Of Appeal Judgments » George Rick James v Hon. Gaston Browne

    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:
    1. 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.

     

    1. 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.

     

    1. 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

     



    [1]

    Cap. 23 of the Revised Laws of Antigua, 1992.


    [2]

    See paragraph 13 of the learned judge’s judgment.


    [3]

    See paragraphs 14 and 28.


    [4]

    See paragraph 18.


    [5]

    See paragraph 17.


    [6]

    See paragraph 25.


    [7]

    See paragraph 27.


    [8]

    See paragraph 28.


    [9]

    See paragraph 29.

    https://www.eccourts.org/george-rick-james-v-hon-gaston-browne/
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