Antigua and Barbuda 1981 Constitution - Page 6 of 12

Table of Contents

CHAPTER V. EXECUTIVE POWERS

PART 1. General

68. Executive authority

The executive authority of Antigua and Barbuda is vested in Her Majesty.
Subject to the provisions of this Constitution, the executive authority of Antigua and Barbuda may be exercised on behalf of Her Majesty by the Governor-General either directly or through officers subordinate to him.
Nothing in this section shall prevent Parliament from conferring functions on persons or authorities other than the Governor-General.

69. Ministers of Government

There shall be a Prime Minister of Antigua and Barbuda who shall be appointed by the Governor-General.
Whenever there is occasion for the appointment of a Prime Minister, the Governor-General shall appoint as Prime Minister-
1. a member of the House who is the leader in the House of the political party that commands the support of the majority of members of the House; or
2. where it appears to him that such party does not have an undisputed leader in the House or that no party commands the support of such a majority, the member of the House who in his judgement is most likely to command the support of the majority of members of the House,
and is willing to accept the office of Prime Minister.
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.
The Ministers 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.
If occasion arises for making appointment to the office of Prime Minister or any other Minister while Parliament is dissolved, then, notwithstanding any other provision of this section, a person who was a member of the House immediately before the dissolution may be appointed as Prime Minister or any other Minister and a person who was a Senator immediately before the dissolution may be appointed as any Minister other than Prime Minister.
Appointments under this section shall be made by instrument under the Public Seal.

70. The Cabinet

There shall be a Cabinet for Antigua and Barbuda which shall have the general direction and control of the Government and shall be collectively responsible therefor to Parliament.
The Cabinet shall consist of the Prime Minister and such number of other Ministers (of whom one shall be the Attorney-General), appointed in accordance with the provisions of section 69 of this Constitution as the Prime Minister may consider appropriate.

71. Allocation of portfolios

The Governor-General, acting in accordance with the advice of the Prime Minister, may, by directions in writing, assign to the Prime Minister or any other Minister responsibility for any business of the Government, including the administration of any department of government.
Where a Minister is incapable of performing his functions by reason of his absence from Antigua and Barbuda or by reason of illness, the Governor-General, acting in accordance with the advice of the Prime Minister, may appoint a member of the House or a Senator to act in the office of such Minister during such absence or illness.

72. Summoning of Cabinet

The Cabinet shall be summoned only by the Prime Minister or, in his absence, by such Minister as the Prime Minister shall appoint in that behalf.

73. Tenure of office of Ministers

Where the House passes a resolution supported by the votes of a majority of all the members of the House declaring that it has no confidence in the Prime Minister and the Prime Minister does not within seven days of the passing of that resolution either resign from his office or advise the Governor-General to dissolve Parliament, the Governor General shall revoke the appointment of the Prime Minister.
The Prime Minister shall also vacate his office-
1. when after any dissolution of Parliament he is informed by the Governor-General that the Governor-General is about to reappoint him as Prime Minister or to appoint another person as Prime Minister; or
2. where for any reason other than a dissolution of Parliament he ceases to be a member of the House.
A Minister other than the Prime Minister shall vacate his office-
1. when any person is appointed or re-appointed as Prime Minister;
2. where for any reason other than a dissolution of Parliament he ceases to be a member of the House of Parliament from among the members of which he was appointed; or
3. where his appointment is revoked by the Governor-General acting in accordance with the advice of the Prime Minister.
Where at any time the Prime Minister is required under the provisions of section 41(2) of this Constitution to cease to perform his functions as a member of the House, he shall cease during such time to perform any of his functions as Prime Minister.
Where at any time a Minister other than the Prime Minister is required under section 31(2) or section 41 of this Constitution to cease to perform his functions as a member of the House to which he belongs, he shall cease during such time to perform any of his functions as Minister.

74. Performance of functions of Prime Minister during absence, illness or suspension

Where the Prime Minister is absent from Antigua and Barbuda or is unable by reason of illness or of the provisions of section 73(4) of this Constitution to perform the functions conferred on him by this Constitution, the Governor-General may authorise some other member of the Cabinet to perform those functions (other than the functions conferred by subsection (2) of this section) and that member may perform those functions until his authority is revoked by the Governor-General.
The powers of the Governor-General under this section shall be exercised by him in accordance with the advice of the Prime Minister, save that where the Governor-General considers that it is impracticable to obtain the advice of the Prime Minister owing to his absence or illness, or where the Prime Minister is unable to tender the advice by reason of the provisions of section 73(4) of this Constitution, the Governor-General may exercise those powers in his discretion.

75. Parliamentary Secretaries

The Governor-General, acting in accordance with the advice of the Prime Minister, may appoint Parliamentary Secretaries from among members of the House and of the Senate to assist Ministers in the performance of their duties.
Where occasion arises for making an appointment under this section while Parliament is dissolved, a person who was a Senator or a member of the House immediately before the dissolution may be appointed as a Parliamentary Secretary.
The office of a Parliamentary Secretary shall become vacant-
1. where for any reason other than a dissolution of Parliament he ceases to be a member of the House of Parliament from among the members of which he was appointed; or
2. upon the appointment or re-appointment of any person as Prime Minister; or
3. where the Governor-General, acting in accordance with the advice of the Prime Minister, so directs.

76. Oaths to be taken by Ministers and Parliamentary Secretaries

The Prime Minister, every other Minister and every Parliamentary Secretary shall, before entering upon the duties of his office, make and subscribe the oath of allegiance, the oath of office and the oath of secrecy.

77. Secretary to the Cabinet

There shall be a Secretary to the Cabinet whose office shall be a public office.
The Secretary to the Cabinet, who shall have charge of the Cabinet office, shall be responsible in accordance with such instructions as may be given him by the Prime Minister, for arranging the business for, and keeping the minutes of, the Cabinet and for conveying the decisions of the Cabinet to the appropriate person or authority and shall have such other functions as the Prime Minister may direct.
The Secretary to the Cabinet shall, before entering upon the duties of his office, make and subscribe the oath of secrecy.

78. Permanent Secretaries

Where any Minister has been assigned responsibility for any department of government, he shall exercise direction and control over that department; and, subject to such direction and control, the department shall be under the supervision of a Permanent Secretary whose office shall be a public office.
For the purposes of this section:-
1. two or more government departments may be placed under the supervision of one Permanent Secretary; and
2. two or more Permanent Secretaries may supervise any department of government assigned to a Minister.

79. Leader of the Opposition

There shall (except at times when there are no members of the House who do not support the Government) be a Leader of the Opposition who shall be appointed by the Governor-General.
Whenever there is occasion for the appointment of a Leader of the Opposition the Governor-General shall appoint the member of the House who appears to him most likely to command the support of a majority of the members of the House who do not support the Government; or, if no member of the House appears to him to command such support, the member of the House who appears to him to command the support of the largest single group of members of the House who do not support the Government:Provided that-
1. if there are two or more members of the House who do not support the Government but none of them commands the support of the other or others, the Governor-General may, acting in his discretion, appoint any one of them as Leader of the Opposition, and
2. in the exercise of his discretion the Governor-General shall be guided by the seniority of each based on his length of service as a member of the House, by the number of votes cast in favour of each at the last election of members of the House or by both such seniority and such number of votes.
If the occasion arises to appoint a Leader of the Opposition during the period between a dissolution of Parliament and the day on which the ensuing election of members of the House is held, an appointment may be made as if Parliament had not been dissolved.
The office of Leader of the Opposition shall become vacant-
1. if he ceases to be a member of the House otherwise than by reason of a dissolution of Parliament;
2. if, when the House first meets after a dissolution of Parliament, he is not then a member of the House;
3. if, under the provisions of section 41(2) of this Constitution, he is required to cease to perform his functions as a member of the House; or
4. if he is removed from office by the Governor-General under the provisions of subsection (5) of this section.
If it appears to the Governor-General that the Leader of the Opposition is no longer able to command the support of a majority of the members of the House who do not support the Government or the support of the largest single group of members of the House who do not support the Government, he shall remove the Leader of the Opposition from office.
The powers of the Governor-General under this section shall be exercised by him in his discretion.
Where the office of Leader of the Opposition is vacant, whether because there is no member of the House so qualified for appointment or because no one qualified for appointment is willing to be appointed, or because the Leader of the Opposition has resigned his office or for any other reason, any provision in this Constitution requiring consultation with or the advice of the Leader of the Opposition shall, in so far as it requires such consultation or advice, be of no effect.

80. Exercise of Governor-General’s functions

In the exercise of his functions the Governor-General shall act in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet, except in cases where other provision is made by this Constitution or any other law, and, without prejudice to the generality of this exception, in cases where by this Constitution or any other law he is required to act-
1. in his discretion;
2. after consultation with any person or authority other than Cabinet; or
3. in accordance with the advice of the Prime Minister or any person or authority other than the Cabinet.
Nothing in subsection (1) of this section shall apply to the functions conferred upon the Governor-General by the following provisions of this Constitution, that is to say, sections 63(6), 67(6), 73(1), 87(8) and 99(5) (which require the Governor-General to remove the holders of certain offices from office in certain circumstances).
Where in the exercise of his functions the Governor-General is required to act in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet, and it has become impracticable for the Governor-General to obtain such advice, he may exercise those functions in his discretion.
Where in the exercise of his functions the Governor-General is required to act in accordance with the advice of, or after consultation with, the Leader of the Opposition and there is a vacancy in the office of the Leader of the Opposition or if the Governor-General considers that it is impracticable to obtain the advice of the Leader of the Opposition, the Governor-General may exercise those functions in his discretion.
Where in the exercise of his functions the Governor-General is required to act after consultation with any person or authority he shall not be obliged to exercise that function in accordance with the advice of that person or authority.
Any reference in this Constitution to the functions of Governor-General shall be construed as a reference to his powers and duties in the exercise of the executive authority of Antigua and Barbuda and to any other powers and duties conferred or imposed on him as Governor-General by or under this Constitution or any other law.

81. Governor-General to be informed concerning Government matters

The Prime Minister shall keep the Governor-General regularly and fully informed concerning the general conduct of the Government and shall furnish the Governor-General as soon as possible with such information as the Governor-General, acting in his discretion, may request from time to time with respect to any particular matter relating to the Government.

82. Attorney-General

There shall be an Attorney-General of Antigua and Barbuda who shall be the principal legal adviser to the Government and who shall be appointed by the Governor-General.
No person shall be qualified to hold or to act in the office of Attorney-General unless he is a citizen entitled to practice as a barrister in Antigua and Barbuda.
If the Attorney-General is an elected member of the House at the time of his appointment or subsequently becomes such a member, he shall be a Minister by virtue of holding the office of Attorney-General and the provisions of subsections (3) to (6) of section 69 of this Constitution shall apply to the office of Attorney-General.
Where the person holding the office of Attorney-General is a member of the House by virtue of holding that office he may be appointed by the Governor-General to be a Minister.
If an Attorney-General appointed to be a Minister under the preceding subsection vacates his office as Attorney-General he shall also vacate his office as a Minister.
If the Attorney-General is not a Minister he shall vacate his office if he ceases to be a citizen or if his appointment is revoked by the Governor-General.
If the office of the Attorney-General is vacant or the holder of the office is for any reason unable to perform the functions thereof the Governor-General may appoint a suitably qualified person to act in the office, but the provisions of subsections (3) and (4) of this section shall not apply to a person so appointed.
An appointment under the preceding subsection shall cease to have effect when it is revoked by the Governor-General.

83. Exercise of certain powers of Governor-General

The powers of the Governor-General under the preceding section shall be exercised by him in accordance with the advice of the Prime Minister.

84. Power of pardon

The Governor-General may, in Her Majesty’s name and on Her Majesty’s behalf-
1. grant to any person convicted of any offence against any law a pardon, either free or subject to lawful conditions;
2. grant to any person a respite, either indefinite or for a specified period, from the execution of any punishment imposed on that person for such an offence;
3. substitute a less severe form of punishment for that imposed by any sentence for such an offence; or
4. remit the whole or any part of any sentence passed for such an offence or any penalty or forfeiture otherwise due to Her Majesty on account of such an offence.
The powers of the Governor-General under subsection (1) of this section shall be exercised by him in accordance with the advice of a Minister designated by him acting in accordance with the advice of the Prime Minister.

85. Advisory Committee on Prerogative of Mercy

There shall be an Advisory Committee on the Prerogative of Mercy which shall consist of-

the Minister referred to in subsection 84(2) of this Constitution who shall be Chairman;
the Attorney-General (if he is not the Chairman);
the Chief Medical Officer of the Government;
not more than four other members appointed by the Governor-General, after consultation with the Prime Minister and the Leader of the Opposition.

86. Functions of Advisory Committee

Where an offender has been sentenced to death by any court for an offence against any law, the Minister shall cause a written report of the case from the trial judge (or the Chief Justice, if a report from the trial judge cannot be obtained) together with such other information derived from the record of the case or elsewhere as the Minister may require, to be taken into consideration at a meeting of the Advisory Committee.
The Minister may consult with the Advisory Committee before tendering any advice to the Governor-General under section 84(2) of this Constitution in any case not falling within subsection (1) of this section.
The Minister shall not be obliged in any case to act in accordance with the advice of the Advisory Committee.
The Advisory Committee may regulate its own procedure.
In this section “the Minister” means the Minister referred to in section 84(2) of this Constitution.

PART 2. Director of Public Prosecutions

87. Appointment and removal of Director of Public Prosecutions

There shall be a Director of Public Prosecutions whose office shall be a public office.
The Director of Public Prosecutions shall be appointed by the Governor-General, acting in accordance with the advice of the Judicial and Legal Services Commission.
If the office of Director of Public Prosecutions is vacant or if the holder of the office is for any reason unable to exercise the functions of his office, the Governor-General, acting in accordance with the advice of the Judicial and Legal Services Commission, may appoint a person to act as Director.
A person shall not be qualified to be appointed to hold or act in the office of Director of Public Prosecutions unless-
1. he is qualified to practise as a barrister in a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth; and
2. he has practised for not less than seven years as a barrister in such court.
A person appointed to act in the office of Director of Public Prosecutions shall, subject to the provisions of subsections (6) (8) (9) and (10) of this section, cease so to act-
1. when a person is appointed to hold that office and has assumed the functions thereof or, as the case may be, when the person in whose place he is acting resumes the functions of that office; or
2. at such earlier time as may be provided in the terms of his appointment.
Subject to the provisions of subsection (8) of this section, the Director of Public Prosecutions shall vacate his office when he attains the prescribed age.
A person holding the office of Director of Public Prosecutions may be removed from office only for inability to exercise the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not be so removed except in accordance with the provisions of this section.
The Director of Public Prosecutions shall be removed from office by the Governor-General if the question of his renewal from office has been referred to a tribunal appointed under subsection (9) of this section and the tribunal has recommended to the Governor-General that he ought to be removed for inability as aforesaid or for misbehaviour.
If the chairman of the Judicial and Legal Services Commission represents to the Governor-General that the question of removing the Director of Public Prosecutions under this section ought to be investigated, then-
1. the Governor-General shall appoint a tribunal which shall consist of a chairman and not less than two other members, selected from among persons who hold or have held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from such a court; and
2. the tribunal shall enquire into the matter and report on the facts thereof to the Governor-General and recommend to him whether the Director of Public Prosecutions ought to be removed under this section.
If the question of removing the Director of Public Prosecutions has been referred to a tribunal under this section, the Governor-General, acting in accordance with the advice of the Judicial and Legal Services Commission, may suspend the Director from the exercise of the functions of his office and any such suspension may at any time be revoked by the Governor-General acting in accordance with such advice as aforesaid, and shall in any case cease to have effect if the tribunal recommends to the Governor-General that the Director should not be removed.
The prescribed age for the purposes of subsection (6) of this section is the age of fifty-five years or such other age as may be prescribed by Parliament.

88. Powers and functions of Director of Public Prosecutions

The Director of Public Prosecutions shall, subject to section 89 of this Constitution, have power in any case in which he considers it proper to do so-
1. to institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence against any law;
2. to take over and continue any such criminal proceedings that may have been instituted by any other person or authority;
3. to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.
Subject to section 89 of this Constitution, the powers conferred on the Director of Public Prosecutions by paragraph (b) and (c) of subsection (1) of this section shall be vested in him to the exclusion of any other person or authority:Provided that, where any other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority and with the leave of the court.
For the purposes of this section a reference to criminal proceedings includes an appeal from the determination of any court in criminal proceedings or a case stated or a question of law reserved in respect of those proceedings.
The functions of the Director of Public Prosecutions under subsection (1) of this section may be exercised by him in person or through other persons acting under and in accordance with his general or special instructions.
Subject to section 89 of this Constitution, in the exercise of the functions vested in him by subsection (1) of this section and by section 45 of this Constitution, the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority.

89. Directions to Director of Public Prosecutions

The Attorney-General may, in the case of any offence to which this section applies, give general or special directions to the Director of Public Prosecutions as to the exercise of the powers conferred upon the Director of Public Prosecutions by section 88 of this Constitution and the Director of Public Prosecutions shall act in accordance with those directions.
This section applies to-
1. offences against any law relating to-
  1. official secrets;
  2. mutiny or incitement to mutiny; and
2. any offence under any law relating to any right or obligation of Antigua and Barbuda under international law.