George Rick James v Hon. Gaston Browne

• Jurisdiction: Antigua and Barbuda
• Judge: Bennett JA
• Judgment Date: 13 October 2020
• Neutral Citation: AG 2020 CA 8,[2020] ECSC J1013-1
• Date: 13 October 2020
• Docket Number: ANUHCVAP2016/0015
• Court: Court of Appeal (Antigua and Barbuda)

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

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.]

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

Appearances:

Mr. Ralph Francis for the Appellant

Ms. Alicia Aska for the Respondent

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 12 ^th 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.

• 2. 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.

• 3. 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.

1 Bennett JA [AG.]: This appeal is against the decision of Clare Henry J dated 22 ^nd 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 16 ^th 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 8 ^th 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...