#BTColumn – Do it the democratic way

Disclaimer: The views and opinions expressed by the author(s) do not represent the official position of Barbados TODAY.

by Dr. Ronnie Yearwood

In this column I have discussed the need for consultation on the form of Republic, setting out that we can do better than a swap from Governor-General to a selected President. I have set out that the way we can have our say is through a referendum.

The referendum on the republic could be at the same time as the next general election or it could be a campaign issue at the next general election with both major parties providing republic options.

It strikes me that changing our Constitution should involve the people who actually are the core of the constitution. I have presented an option for the Republic, involving for example a directly elected President, term limits for a Prime Minister, fixed election date, Ministers not sitting in Parliament.

In today’s column, I want to wrap up the discussion by unpacking a few of the more academic concepts around the change to a Republic.

What is the Constitution?
The Constitution expresses the founding of a nation and provides for the political life of its people. The Constitution of Barbados is supreme and any law that contravenes it is void (Section 1). Not even Parliament can disobey the Constitution.

The Constitution sets out individual rights (Chapter 3).

The Constitution is the primary law from which all other laws in Barbados and all government institutions such as the Governor-General (Section 28), Parliament (Section 35), Prime Minister and Cabinet (Section 64), Leader of the Opposition (Section 74), Judiciary (Chapter 7) are created and by which they derive power.

Barbados can be characterised by constitutional supremacy and not parliamentary supremacy. The Constitution in creating the Parliament also gives it the power to make law (Section 48) and regulate its own affairs (Section 50).

What is a Republic?
Republics can simply be understood as not having a monarch as head of state. However, advanced definitions state, republican government means limited government, where the “people as a whole are conceived as the true constituent power, and this power is articulated in a (written) constitution” which sets out individual liberty and the rule of law (Simeon McIntosh).

In fact, some argue that from Independence, Barbados, on a proper understanding of the term republic, was a republic.

“It is therefore unfortunate that, in contemporary political and constitutional analysis, we have to come to distinguish monarchical and republican government solely on the fact that one has a monarch as head of state and the other does not”. (Simeon McIntosh)

Is the Republic simply an exercise of finding every reference to the Governor-General in the current Constitution and replacing it with President?
It will involve amending the Constitution through a vote of a two-thirds majority in the Parliament. It will also involve creating a new mechanism for the ‘selection’ of the President.

The proposed form appears to be an electoral college composed of both elected MPs and Senators.

The Constitution as the supreme law of Barbados sets out provisions in the Constitution for the Constitution’s own alteration or amendment.
Is the changing of the oath of allegiance Ministers swear on taking office is a reason to become a Republic?

This is not a singular or standalone compelling reason because, like St. Lucia where Ministers swear allegiance to St. Lucia, Barbados could have changed the oath, swearing allegiance to Barbados ages ago.

Can the UK Parliament amend the Barbados constitution? The Barbados Constitution was provided for in a UK Parliament law, the Barbados Independence Act 1966, which contains the Barbados Independence Order 1966.

In fact, if you look at the Act it states that no act of the UK Parliament passed on or after, 30 November 1966 shall be “deemed to extend, to Barbados as part of its law” and after that day Barbados was to be governed by the Barbados Constitution.

If it were possible to say that the supreme Constitution of Barbados derived its authority from some ‘other’ or it was amendable by some ‘other’ and not on its own terms, then the Constitution would not be supreme and its validity would be called into question, which would be an absurdity.

The point is that even if there is the theatre of patriating or ‘bringing home’ the Constitution of Barbados from the UK, it is already home because by virtue as the supreme law it could not be held anywhere else or have any other holding power over it. So, while we can appreciate the ‘home coming’ celebration, the Constitution as the supreme, fundamental and basic law of Barbados is already the supreme, fundamental and basic law of Barbados.

What is a referendum and do we need one?
A referendum is a vote to put important decisions to the public for a vote. I have observed two main arguments against a referendum.
One, that we did not have one at Independence so we do not need one now. Based on that line of thought we shouldn’t do new things and provide for more engagement in our democracy through direct voting on important issues, because it has never happened.

Two, the vote for a referendum could be lost, as it could become political. If we boil this down, after spending billions of dollars on education, the Government and the elite are afraid that people may make a “bad” decision.

When a Government is afraid of the People, then it is afraid of democracy. If we had a referendum and the majority did not vote to become a Republic, I would be sad but I would respect the wishes of the People and move on. I also wouldn’t blame the People. It would have been on us who want a Republic to fight for it and make the case.

People have that right if they wish in a democracy to not want a Republic. It is not a view I support but I will not deny anyone’s right to make their case. It is their right to be heard and counted, even if it is opposite to what I want because that is what a democracy is about.

If we forget that, then I think we slip into something un-democratic and un-becoming. The Government intends to hold referenda on rights related to sexuality or recreational use of marijuana, instead of making the tough choices but does not want to use a referendum for our democracy, such as the People deciding what type of republic Barbados should be. A referendum is not a problem. It is not the tool, but the builder.

What is the Government’s approach to Barbados becoming a Republic?
The Government is proposing to swap the Governor-General for a President on 30 November 2021 and make ‘other’ changes to the Constitution later.

The approach by the Government is odd and backward. If we follow the logic, opting to create a ceremonial Presidency with the constitutional status quo intact, so no broad and meaningful reform, we are told that we can amend the Constitution in probably a year and some to get rid of the same ceremonial President if we wanted something else.

So, we will become a Republic in name, but not substance.

In my last column, An Option for a Republic, I outlined some easy and more democratic options for our Republic as the Government is trying to give the impression that its option is the only option of a republic available.

Dr. Ronnie Yearwood is a lecturer in law, lawyer, and social commentator. Email: yearwood.r.r.f@gmail.com