#BTColumn – What to put in our new constitution

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

by Dr. Peter Laurie

Next year we begin crafting a new constitution.

I don’t know whether this means we amend the existing constitution or create something from scratch. To me it doesn’t matter. I’m more interested in substance than process.

Here are some changes I’d like to see.

But first, something important to bear in mind.

Most people think of a constitution as a dry-as-dust legal document that only lawyers and political scientists enjoy reading and wrangling over. In fact, many modern constitutions embody provisions that are not ‘justiciable’, that is, enforceable in a court, but are intended to express the values of the citizens of a country.

These are known as ‘directive’ clauses. They are not binding on the state in a legal-juridical sense but are binding in a political and moral sense.

For example, the Constitution of India states in one part that: “The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”

If our new constitution is truly to reflect who we are as Barbadians, then it should contain directive provisions that reflect our aspirations and values. Our Constitution  should be a mirror image of who we are.

To illustrate, an important aspect of our historical development is the revaluation of our national identity through continued decolonisation. So our new constitution should pledge to seek reparatory justice for the crime against humanity that was the enslavement of our ancestors, as well as pledge to continue rescuing their cultural heritage from the repression and neglect it was subjected to in the colonial era.

Similarly, it’s essential to reaffirm in our constitution the protection of our beautiful and fragile environment and our commitment to sustainable development. Again, this should be directive rather than justiciable.

Let’s start with a topical issue. How to choose our president?

I’m quite happy with the present procedure of having two-thirds of parliament elect her. Some might suggest, however, that we elect the president by popular vote. If the president were elected by popular vote, she would, by definition, be a partisan politician.

We are blessed with many citizens who would serve with distinction as president but would be reluctant to campaign for the job. It’s vital that a ceremonial head of state be above politics, even if he or she is a retired politician.

Second change: a unicameral legislature. The Senate is a neo-colonial anachronism that serves no purpose other than to groom political hopefuls for elected office or to provide a sinecure for those who failed to win a seat in the House or those who need to be otherwise placated.

The traditional argument for two legislative chambers is that an upper chamber acts as a brake on legislation proposed by the popularly elected representatives.

The assumption is that the latter (aptly named the ‘Commons’ in the UK) will take rash decisions that need to be tempered by the unelected (aptly named the ‘Lords’ in the UK). We have passed beyond such ridiculous class snobbery.

Of the 193 parliaments in the world 113 are unicameral and 79 are bi-cameral. I suggest our unicameral parliament have 50 seats, 40 to be elected (as set out below) and 10 to represent agreed community interests on a rotating basis as proposed by the Social Partnership and confirmed by the president.

The non-elected members of parliament would have the right to speak but not to vote. Such representation from civil society would facilitate scrutiny of proposed legislation before it becomes law.

I also suggest the Social Partnership be widened to embrace representatives of civic groups, and be written into the new constitution.

I suggest we change our electoral system.

Barbados uses what is known as the ‘first-past-the-post’ system (FPP). Sixty-four countries use FPP, notably Britain and most of its former colonies.

One of the fortunate features of this system in Barbados has been the development of a strong two-party system, the bedrock of our legendary political stability, with
two historically popular parties alternating in office since the 1950s.

The shortcoming of this system, however, is that the number of seats won by a party often does not coincide with the percentage of the popular vote, leaving many voters effectively disenfranchised.

The usual alternative to FPP is proportional representation (PR), used by some ninety countries. Basically, under this system a party that wins 50 per cent of the popular vote gets 50 per cent of the seats.

The drawback of PR is that it can often lead to minuscule parties with little or no grassroots support winning seats in parliament, resulting in unstable coalition governments and legislative gridlock.

But there is a sensible alternative to these two extremes. This is the Mixed Member Proportional system (MMP). It’s used by Germany and New Zealand among several
other countries.

Under MMP, each voter casts two ballots: one for their constituency representative (FPP) and one for their party of choice (PR). This system ensures that people have representatives of their specific constituency who can address their local concerns, while, at the same time, the party gaining most of the popular support also has a majority of seats in the legislature.

I suggest general elections in Barbados have fixed five-year limits rather than allow the prime minister to call an election when she wishes.

I don’t support term limits for the prime minister. If we have a competent leader why should we be compelled to remove him and replace him with an unknown quantity?

The other area we need to strengthen in Barbados is the powers and functions of parliament. We should have a proper committee system (including non-elected MPs) that would oversee various aspects of the operation of the executive, especially matters related to transparency and accountability in expenditure.

Parliament should meet twice a week with one session devoted entirely to committee business.

In order to have the legislature perform its oversight function, we should limit the size of the Cabinet to 30 per cent of parliament.

Another imperative is to provide for ongoing citizen participation in government. It’s simply not enough to cast a ballot every five years. We have an educated and sophisticated civil society that teems with smart ideas for making this country better. We should create mechanisms to capture this input on an ongoing basis.

Expanding the Social Partnership to include elements of civil society, as suggested above, would be the first step. The Social Partnership should also empower ad hoc task forces to tackle national issues.

A functioning parliamentary committee system that constantly engages in public consultation would facilitate popular participation.

A few years ago, a group of us lobbied for a People’s Initiative that would allow registered voters in Barbados to initiate legislative measures, including amendments to the Constitution. This was proposed unanimously by the 1998 Forde Constitution Review Commission.

These measures, if supported by a significant number of the electorate in a petition, would then be put on the ballot, and, if approved by a majority of registered electors, would be submitted to Parliament for appropriate action.

Another change would be expand the rights enumerated in our Constitution, specifically, the grounds on which it is unlawful to discriminate against a person. The present grounds refer to race, place of origin, political opinions, colour, creed or sex. I suggest we add to those age, ethnicity, (dis)ability, cultural and educational background, sexual orientation, and gender.

The scope of human rights has expanded since 1966, so I believe we should add some socio-economic rights such as a right of access to clean water, nutritious food, affordable housing, decent work, quality education in which no child gets left behind, and health care, along with social protection for the most vulnerable within our society.   

I suggest, however, it would be prudent to make these rights directive rather than justiciable.

Finally, we should also set out in the constitution what are the fundamental purposes of government, namely, to safeguard the dignity inherent in every person, protect human rights, ensure sustainable and equitable economic development, and promote the common good.

In accomplishing these ends, government must act with transparency and accountability. The latter should have justiciable provisions in the constitution.

That’s my two cents.

Dr. Peter Laurie is a retired permanent secretary and head of the Foreign Service who once served as Barbados’ Ambassador to the United States.