Attorney General, Adriel Brathwaite

The Separation of Powers

Where is justice in the Barbados Courts?

Where is justice in the Barbados Courts?

The following Editorial was extracted from the Barbados Advocate and deals with the recent controversial statement by Attorney General of Barbados Adriel Brathwaite.

The view, most frequently attributed to the French philosopher, Baron de Montesquieu, and later espoused by Thomas Jefferson, that there does and should exist a separation of political power among the legislative, executive and judicial branches of the State was recognized by the Judicial Committee of the Privy Council in 1977 in Hinds v R as being implicit in Westminster-style Constitutions such as those generally adopted in Barbados and the rest of the region.

Of course, in a few cases, we have chosen to practice the “Westminster-export” style of governance rather than its pure form and hence local political culture does not always strictly observe these divisions. Hence, the members of the judiciary are, in substance, selected by the executive Prime Minister and rather than Cabinet being accountable to Parliament, the numerical reality of the Cabinet is such that Parliament is rather beholden to the Cabinet decision. Indeed, other tenets of Westminster type governance such as a Minister’s accountability to the citizenry for the actions of his or her Ministry and, sometimes, the notion of collective responsibility are ignored.

In three recent instances in the region, we have observed what might be considered at least negligent trespasses into jurisdictions that properly belong to another branch, the judiciary, by highly placed members of the executive.

In the first instance, the Prime Minister of Barbados publicly queried the then recent occasion of bail being granted by the court to an individual charged with murder. Although this sentiment was couched in the benign language of concern for the feelings of the family of the victim who might easily encounter the accused in public, it nevertheless intruded on the exclusive discretion of the judicial officer to grant bail whenever he or she considers that this is in the interests of justice.

More recently, we had the Attorney General of Jamaica declaiming that radical legislative changes were in the offing to tackle the ballooning murder rate in that country. In proposing these, she noted, “While judicial discretion must be preserved and respected, Parliament, in the exercise of its powers to pass laws for peace, order and good government, will have to set the threshold for the consequences that will flow when people choose to murder and cause mayhem.” This is a clear assertion that in any conflict between the existence of judicial discretion in the grant of bail, for example, and the legislature’s view of what will conduce to peace order and good government in the country, the latter will always trump the former.

At a theoretical and jurisprudential level, this opinion is unimpeachable. However, the mere suggestion by the state’s chief legal advisor that the exercise of a judicial discretion may not be in the state’s best interests marks an attempt to abrogate unto the executive notion what should clearly and constitutionally be a matter of judicial decision purely.

It is the absence of any clear redeeming or justifiable thesis for his recent announcement other than his own perception of justice as to the grant and refusal of bail in two distinct cases that makes the recent observation of the local Attorney General as to the comparative merits of the decisions perhaps the most egregious trespass of the three.

Given that it was uttered at a police gathering, it might be owed to a combination the fraternal conviviality of the occasion, but the learned Attorney’s approximation of the case of the police officer charged with murder and that of another accused identified by his terrifying alias only suggested not an appeal to a higher, more humane ideal but an instinctual “going to-bat-for-our-man-too”.

In our view, this amounted to an assertion that “if I were the presiding officer, I would have decided differently”, and flew, unwarrantedly, in the face of any constitutional separation of jurisdiction, express or implied, between the executive attorney general and a judicial officer.

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33 Comments on “The Separation of Powers”

  1. Amused July 16, 2016 at 4:13 AM #

    This is an excellent piece, not that I necessarily agree with all of it at all, but it is most worthy of consideration and argument , well written and thought provoking.

    It would be wrong to say that the appointment of judges in England and Wales cannot be subject to political discretion, but note that I in no way imply that it is. The Government (read the PM and cabinet) in effect select both attorney-general and Lord Chancellor and Secretary of State for Justice. So the executive could, were they so minded, exercise some control over the appointment of judges. Hell, the PM even, to all intents and purposes, selects who is going to be Archbishop of Canterbury (see: Yes, Prime Minister).

    Then too, it is a universal truth that in all common law jurisdictions, the independence of the judiciary is not absolute. It cannot be absolute if it is paid for by the taxpayers.

    As for the taxpayers, when they, as voters, elect an executive, they hand sovereignty of the country to that executive – and this is also true in all common law countries. The only time that the executive hands that sovereignty back to the electorate is in referendum. For example, this is what happened with Brexit and the UK government is now bound by the will and sovereignty of the people in this regard. It seems prudent at this stage, in the matter of Brexit, to explore the myth of what does and does not constitute a sufficient majority to signify the will and sovereign choice of the electorate. In countries with a rigid constitution, like Barbados, such will would require a two thirds majority of the electorate in keeping with the constitutional changes that would have to be made. But the UK has a flexible constitution requiring a simple majority for the repeal of an act and thus Brexit means Brexit and the repeal of the 1973 Act and all later legislation flowing therefrom must be carried out. As Prime Minister May has said, “Brexit means Brexit!”

    Back to the argument of this piece. Once a judge is appointed, it is a position from which that judge can only be removed for misconduct and then only upon the decision of a commission of enquiry set up by the GG on, in the case of the CJ, the advice of the PM and, in the case of a judge, the CJ. So that judge has job security that transcends all others, as long as s/he behaves her/himself. That judge also has complete autonomy and authority in his/her court and is not subject in that court to the authority of anyone, including the CJ. Also, that judge has judicial immunity for his/her decisions. It is not like the USA where judges are often elected by the electorate, making them subject to the whims and having to court the popularity of that electorate if they want to be reelected. The Commonwealth common law system thus cuts down considerably on appeals, while, sadly, the US system does the opposite to the financial and emotional detriment of litigants.

    Adriel Nitwit’s comments have been roundly condemned, most eloquently and correctly by Andrew Pilgrim. However, Nitwit has no authority over the court that alone will decide guilt or innocence. But, we are dealing with a criminal matter that will be decided, not by a judge, but by a jury and we are a small island and if is inconceivable that the jury pool has not heard the comments of the idiot we have as AG, even though they know universally that he is an idiot and the argument of contamination in some measure supported. So his comments are egregious and unbecoming an MP at best and an AG at worst. But, he is a total jackass unworthy of our consideration and attention and everyone knows it.

    As for the PM’s comments, I see nothing wrong with them. Indeed, I see them as the PM indicating in his usual obscure and opaque way that he is extremely dissatisfied with the length of time it takes to have criminal matters brought to trial and, as a result of the sloth that lies firmly at the door of the DPP (which includes the Police) the disgraceful remand periods that people who are innocent until proven guilty before a jury of their peers, must undergo. For if they are proven innocent, then meeting relatives of the victim is not something of concern to either executive or judiciary. However, meeting them before guilt or innocence is established is a severe emotional strain that, frankly, ought not to take place. And likely would not take place in a larger country. But in Barbados, such meetings are not only possible, but almost inevitable. In my humble submission, that is what the PM was saying, although one could wish he would be less opaque and not need a translator or have his auditors indulge in guessing games, both of which are extremely tiresome and, in the case of a certain member of his cabinet, viz. the AG whose brain, if any, is the size of a pea, open to embarrassing misinterpretation. However, that the PM has stepped out of character and commented at all is a true indication of the extreme levels of his discontent and disquiet and not we, who have “ears to hear” are waiting to see what he will do about it and please, PM, the matter is far too urgent to hold fire until after the 50th. We are losing far too much reputation, prestige and foreign investment. Sir, you need to act NOW!!! REGARDLESS!!!! You have grounds and, although not grounds and covered by judicial immunity, you cannot possibly as an extremely experienced jurist and queens counsel, view the recent CJ decision and the judgement of the overturning of that decision by the Court of Appeal with anything but horror and dismay at the total judicial incompetence of the CJ. He has got to go. At once!!!

    In many ways the author is right. Judges in Barbados are primarily, almost exclusively, political appointments, with the executive motivation being that as they cannot be removed, except as above-stated and, once that executive is out of power, they are in situ as politicians to provide embarrassing moments and incidents for the executive that takes over. We all know that is what has happened and it is brought into focus by the example already explored here on BU of Cornelius J., who could be said to be actively electioneering on behalf of her BLP-ite and MP-wannabe husband. But there is more. Often judicial appointments are made as favours to important, external people and the allegation surrounding the appointment of a certain Antiguan judge to the Barbados Bench spring readily to mind.

    Some years ago, Lord Denning MR stated in an address, “The chances of justice in the Court of Appeal are two to one – against.” One has to wonder what this, the most famous of all jurists, would have offered as odds in the courts of Barbados. One must also reflect that when interviewed upon his retirement, the interviewer remarked to Denning MR that he had always been the champion of the common man, to which the reply was, “Well, they don’t come more common than me.” And that is our problem – judges who are incompetent and out of touch, being too caught up with their egos and political agendas, rather than focussing on justice and the timely delivery of same.

    Liked by 1 person

  2. Hal Austin July 16, 2016 at 5:18 AM #

    Why do Barbadians over-complicate matters. The silly remarks by the attorney general had nothing to do with the separation of powers. It was part of cultural bullying, of people abusing their positions of authority, of highly qualified people believing that qualifications means intelligence when, in many cases in Barbados, it also means functional illiteracy.
    We have a ruling elite that, outside their professional qualifications, are contemptible stupid.
    To talk of separation of powers to to give a constitutional gloss over this rum shop ignorance.

    Liked by 1 person

  3. David July 16, 2016 at 6:15 AM #

    @Amused

    There is a link somewhere that reports on a clash between the PM and Opposition Santia Bradshaw on the ‘Hit for six’ reference.

    Like

  4. Amused July 16, 2016 at 6:28 AM #

    @Hal. It does go deeper and the AG’s comments, given his position, has to be examined as “possibly” contaminating the jury pool. Therefore, the preliminary directions of the judge to the juries will be most important and, inevitable or not, will almost certainly ground appeals if the verdict is guilty, for an appeal. If found not guilty, then of course double jeopardy applies and there is no appeal. However, with respect, the level of independence of the judiciary from the executive is a very important discussion to have in Barbados, given our size and the author is correct and timely in opening such an important discussion and his/her views and observations ought not to be dismissed so lightly. They are, in fact, of great importance and merit. BU has a lot of very bright family members, most prolific among whom are Piece and Well Well and their insights here cannot be other than interesting and of merit.

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  5. Amused July 16, 2016 at 6:29 AM #

    @David. Have not come across it. Will see if I can find it.

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  6. David July 16, 2016 at 6:43 AM #

    Thanks Amused!

    It was an opportunity for the PM to clarify his statement and to remove the fog to Santia’s. This is the big problem with government, perennially steeped in the politics of the day.

    >

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  7. Bush Tea July 16, 2016 at 7:27 AM #

    Bushie has to agree 100% with Hal.
    Bringing serious epistemological analyses to statements from jackasses may reflect more on the analysts than on the jackass….

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  8. David July 16, 2016 at 7:37 AM #

    What is Eddie trying to say here albiet with great difficulty?

    http://www.barbadostoday.bb/2016/07/16/double-standard/

    Like

  9. Bullpistle July 16, 2016 at 7:51 AM #

    SOP doctrine aside… He should be charged for contempt of court in that both matters are before the court and his comments should be tested through a contempt hearing to determine if they were indeed so! Who will file the action?

    On another note… Which judge is granting these bail applications? Why?
    The DPP made a comment about bails sometime back. Can anyone find the article and post it?

    Like

  10. Amused July 16, 2016 at 7:55 AM #

    @David. I cannot see the issue in general terms. Mr Hinckson may have special arguments to make on behalf of and peculiar to his client. However, the general principle is unassailable. A foreign national comes to Barbados and commits a crime and so he is punished in Barbados and then sent back whence he came. Indeed, it is high time that these foreigners were convicted and sentenced in Barbados and immediately deported to serve their sentences in their own countries at the expense of those countries and not the Bajan taxpayer. It happens with other countries, so why not with Barbados?

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  11. Freedom Crier July 16, 2016 at 8:46 AM #

    BTW…‘Separation of Church and State,’ nowhere in the First Amendment do these words exist.

    Interestingly, though the majority of Americans and others spuriously believe that the First Amendment of the Constitution means ‘Separation of Church and State,’ nowhere in the First Amendment do these words exist. Instead it declares, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The use of this phrase in fact can be traced back to a letter that Thomas Jefferson wrote on January 1, 1802 in answer to the Danbury Baptist Association of Connecticut who had voiced some concerns about Religious Freedom in the Constitution. In this letter Jefferson was simply underscoring the First Amendment as a guardian of the peoples’ Religious freedom from government interference, not the other way around. The full letter follows wherein the phrase was first used only later to be taken out of complete context.

    To Messrs. Nehemiah Dodge and Others, a Committee of the Danbury Baptist Association, in the State of Connecticut Gentleman, The affectionate sentiments of esteem and approbation, which you are so good as to express towards me, on behalf of the Danbury Baptist Association, give me the highest satisfaction. My duties dictate a faithful and zealous pursuit of the interests of my constituents, and in proportion as they are persuaded of my fidelity to those duties; the discharge of them becomes more and more pleasing. Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties. I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man, and tender you for yourselves and your religious association, assurances of my high respect and esteem.

    Th. Jefferson; January 1, 1802
    As is clearly documented, when Thomas Jefferson wrote his letter to the Danbury Baptist Association he never intended the words “Separation of Church and State” to be taken out of context and used as a substitute for the First Amendment, but for all practical purposes this is what the courts have since accomplished. Noting that the First Amendment puts Restrictions only on the Government, not the “We the People,” Jefferson merely quotes the First Amendment and then uses a metaphor of the “wall”, emphasizing the idea of specifically and graphically “protecting the people from government interference” with Religious practice.

    Unfortunately, history shows the ‘Warren Court’ confabulated the First Amendment to mean something completely different than what was originally intended, taking the matter completely out of its original context, outrageously giving more power to the government and further onerous restrictions on “We the People.”

    It is beyond intelligent dispute that this is entirely different from the “wall” Jefferson envisioned. At the very heart of Jefferson’s idea “Wall of Separation” is the clear and salient declarative that government “shall not interfere” with people’s right to worship God, in any place or anywhere they so choose — even if it were in a government facility or building within the public domain. But, ironically, the very fact that the government has since ruled to “regulate religious practices,” indicates that it is the government itself which has crossed that “Wall of Separation,” never the People Actions often speak stronger than words. Just three 3 days after Jefferson wrote those words, he attended church services in the largest congregation in North America at the time. As a matter of fact, this church held its weekly worship services on government property, in the House Chambers of the U.S. Capital Building.

    Ironically, Jefferson’s “wall of separation” correctly applies everywhere in the country even on government property, ‘without’ government interference. This is how it is written in the Constitution, this is how Thomas Jefferson understood it from his letter and actions, and this is how the men who wrote the Constitution practiced it. Nothing could be plainer. Moreover, as Chief Justice of the U.S. Supreme Court, William Rehnquist stated, “The metaphor of a wall of separation is bad history and worse law. It has made a positive chaos out of court rulings. It should be explicitly abandoned.”

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  12. Sunshine Sunny Shine July 16, 2016 at 8:47 AM #

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  13. Well Well & Consequences July 16, 2016 at 9:02 AM #

    Amused is right, one has to look at the future ramifications of Adriel Nitwit Idiot’s interference in addressing both cases, it will have implications for both cases when they come up for trial.

    Juries are not lawyers and are even more impressionable and unstable when some of the chosen jurors will more than likely be members of Adriel Nitwit’s political party, his constituents, or yardfowls, or his relatives or friends…….these types of jurors always think what their representatives spout is gospel, in such a small incestuous society.

    Fruendel and Adriel are both do nothings with lots of useless talk, useless to people and country and have the nerve to be trying to be reelected so that they can continue to do nothing while collecting a salary…..for another 5 years.

    Amused…would it be too much to ask that the cabinet roll back the laws which makes the chief justice post a political appointment…have they learned nothing from the trainwreck that still causes corruption in the Supreme Court that was the David Simmons political appointment to the chief justice post …nothing can change when they continue to start wrong.

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  14. Well Well & Consequences July 16, 2016 at 9:10 AM #

    SSS… the party in parliament cannot show not even one thing that they did right…and still want to be paid more money in salary for another 5 years for getting everything wrong…, the nerve of these useless people.

    I am still trying to find out why the James dude was not charged for murdering his stepdaughter. ..what kind of jackass for a prosecutor would ignore that both murders happened the same day, at the same time, but the murder of yhe child was not worth prosecuting…unless he plead guilty and got a deal….what kind of idiots are running the DPPs office…back then as well as now…are they more political appointments.

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  15. Sunshine Sunny Shine July 16, 2016 at 9:25 AM #

    Ma Girl WWC

    The matter involved a police officer doing the shooting. As you would recognise by now, certain cases are handled differently than some. A man accidentally shooting his son was given a set a perks with a concluded investigation that says it was an accident. Another forgetting his child in the back of a car is charged for gross negligence and sent up the road to await trial. Another can crookedly keep, spend, lie, delay, manipulate, and fool an old client into the reason why he has not gotten his money after several years, even though ordered to do so by the court, but let a fellow steal two fish cakes and salt bread and see what happens. A report says that 3.3 million went into bank accounts illegitimately, and the wife of one of the crooks is elevated to take his place as a sitting MP. No one is called to account for the millions of missing CLICO money, but one of the crooks in the scam was given the privilege to keep his money in the Central Bank. Justice is indeed serving in Barbados, and it remains as ”balanced” as it ever was before.

    Liked by 1 person

  16. Well Well & Consequences July 16, 2016 at 9:40 AM #

    We shall wait and see if bajans are dumb as well as blind to reelect these gang of crooks in parliament to steal salaries by not doing their jobs and help the minorities rob the treasury and bajans for another 5 years.

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  17. Caswell Franklyn July 16, 2016 at 10:04 AM #

    I have often said that the system of governance in Barbados is merely a parody of the Westminster system. Not works as intended by that system. When last a parliamentary functioned?

    Bullpistle’s comment is worthy of note. I was also wondering if the AG’s comments did not amount to contempt of court.

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  18. Old Baje July 16, 2016 at 10:18 AM #

    @ Jeff & Amused

    Please comment on Freedom Crier’s 8:46 AM post.
    I always thought that the US constitution guaranteed not only freedom of religion but freedom from religion. FC seems to be saying that it guarantees the former but not the latter.

    Like

  19. Old Baje July 16, 2016 at 10:28 AM #

    OFF TOPIC

    Hal Gollop has cleverly attempted to shift our gaze away from the ugliness.
    Commenting on the NCC decision, he said that no evidence was found that the laid off workers were from a specific geographical area. Nice try, Hal. The issue was that the no workers from Dennis Lowe’s constinuency were laid off.

    Like

  20. Sunshine Sunny Shine July 16, 2016 at 10:36 AM #

    Old Baje

    The outcome of the NCC workers matter was already agreed upon. Hal Gollop simply followed the script. It was the intention of this government to turn sour grapes into sweet grapes. Reinstating the NCC workers means that the Prime Minister can shout from the mountain tops that justice was served without political influence.That the Democratic Labour Party will follow the course of justice without perversion, influence or coercion. But rumour has it…..

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  21. Violet C Beckles July 16, 2016 at 11:13 AM #

    Attorney General of Barbados Adriel Brathwaite.@@@

    Is a crook , never trust a crook , focus on him and his action or non actions, dont get tied up with nothing, he does nothing as an AG, Nothing, NOTHING,

    How many cases have he taken for the people of Barbados to court in 6 years? So that means all things running smooth in the land of milk and honey, Bees wax i say,

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  22. chad99999 July 16, 2016 at 11:19 AM #

    The comments on this Web site are full of amusing contradictions.
    The fetishization of judicial “independence”, accompanied, predictably by condescending criticism of the American practice of electing most state judges, makes no sense at all for political activists who constantly claim to be passionately devoted to transparency and accountability in affairs of state. Appointed judges and magistrates are individuals drawn from a narrow range of backgrounds and experience. They are a distinct and unrepresentative class, and there is really no good reason most of us should trust their values or their judgment. It is only because our Caribbean history has made us, like the UK, a deferential society, that the man in the street usually accepts rulings from the bench without complaint.
    One other thing. Federal judges in the United States are appointed, not elected. Eleven states do not elect any of their judges. And even in states that do hold elections, governors often appoint judges with advice from nominating commissions dominated by lawyers. The appointed judges may be required to subsequently stand for election if they want to retain their positions on the bench (retention elections). It is a hybrid system that makes much more sense than Barbadian practice, which leads to regrettable secrecy and hidden bias.

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  23. Jeff Cumberbatch July 16, 2016 at 2:44 PM #

    @Old Baje at 10:18 am,

    Of course you are correct and FC is hopelessly wrong! Any freedom must OF NECESSITY contain the negative obverse freedom not to indulge it. You have freedom of speech and therefore the cannot compel you to speak against your will as they cannot prevent you from exercising the right if you so choose, subject of course to the express qualifications on the right. Similarly with religion. No state can constitutionally compel you to follow a religion or not follow one of your choice! NO LAW PROHIBITING THE FREE EXERCISE THEREOF!

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances…”

    Like

  24. Old Baje July 16, 2016 at 4:38 PM #

    @ Jeff

    Thank you, sir.

    Like

  25. pieceuhderockyeahright July 16, 2016 at 5:44 PM #

    And for Walter who I know has not moved from his computer and has been hitting the refresh key for 35 minutes here is the much awaited item

    “Fumbles is hit for six”

    And If you think that the poster is a doozie, wait until you see the comic

    And the animation

    And the Video Skit

    Already a deal is in the making with Lucas Studios for “Hit Us Six Times” Part 2

    In this sequel it gets real rough when all 16 of the demons get hit six times a piece with a Newbery Cricket bat.

    Due to the violence in the cartoons Parental Advice Warning have been plastered all over the videos.

    The only part of the movie that has sex in it is when they ask WeJonesing what is his sex and he insist that the bat is any ways that is exposing too much of the movie.

    If wunna want more wunna got to wait till de movie launch

    Like

  26. Gabriel July 16, 2016 at 5:47 PM #

    The two unions should have sought to redress the grievous wrong committed by Denis Lowe and his lackey Neblett and demand reinstatement of those who so desire.After all it is to do with continuity of employment.
    Furthermore,the unions should clammer for both Neblett’s and Lowe’s heads,but who will bell the cat!There is no fairness,no equity in this place.Poor rakey governance……poor rakey representation.A BMW and a Benz.

    Like

  27. Caswell Franklyn July 16, 2016 at 8:15 PM #

    Gabriel

    You are not quite accurate, you should have said: A BMW, a Benz and a QC.

    Sent from my iPad

    >

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  28. Anthony Davis July 17, 2016 at 5:31 AM #

    The report was on page 7 of Barbados Today dated 12 July, 2016 under the headline “Stuart and Bradshaw clash over ‘hit for six’ comment.”

    Like

  29. Sunshine Sunny Shine July 17, 2016 at 9:35 AM #

    What should we call them: Democratic or Demonic Labour Party?

    Like

  30. David July 17, 2016 at 1:23 PM #

    We all see that new president Weekes of the Bar Association threw a lash in the AG for not defusing using his contribution n parliament to defuse the confusion caused by his ignorant Lord Evil remark.

    Like

  31. pieceuhderockyeahright July 17, 2016 at 5:11 PM #

    Like

  32. Bush Tea July 17, 2016 at 8:07 PM #

    @ Piece
    How stupid can a Prime Minister get?
    ++++++++++++++++++++++++++++++
    Boss … you really don’t wanna know…!!
    Hignorance hath no bounds….

    Like

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