Disclaimer: The views and opinions expressed by the author(s) do not represent the official position of Barbados TODAY.
by Garth Patterson
It has always puzzled me why, in patriating the Barbados Constitution, Parliament did not simply revoke the pre-republic Constitution and re-enact it in one comprehensive document. Perhaps out of expedience, or to conserve energy and effort, or because of an unwillingness to completely let go of our colonial past, or just through plain laziness -whatever the reason – it chose, instead, to take the shortcut route, opting to further amend the pre-republic Constitution, and then adopt it, warts and all, as the new Constitution and supreme law of Barbados.
At least, that is what Parliament intended.
It is very questionable whether that is what is, in fact, achieved. It is very possible that this ad hoc, piecemeal approach to not-just-any, run-of-the-mill, constitutional reform, but to the historic and momentous transition from Barbados being a constitutional monarchy to becoming a parliamentary republic, may inadvertently have resulted in the roll-back of the many significant constitutional amendments and reforms that were implemented over the past 55 years.
Our Constitution was provided to us by Her Majesty the Queen as her final legislative act for Barbados, and as her parting gift of independence. It was enacted by the Queen by an Order in Council made pursuant to the Barbados Independence Act, 1966, an Act of the British Parliament. It appears in the schedule to the Barbados Independence Order, 1966. It has, since then, remained our Constitution and has been amended 18 times by our post-independence Parliament.
The final pre-republic amendments to the Constitution were effected by the Constitution (Amendment) (No. 2) Act, 2021, which came into effect on November 30, 2021. Those substantial amendments were fundamental, as they were instrumental in providing the new constitutional framework for our republic, by, among other things, removing the Queen as our Head of State and replacing her with our own, home-grown, President. It was also the means by which Parliament sought to patriate the Constitution. Section 4 of that Act states: (1) The Independence Order is revoked, but the revocation of that Order shall not affect the validity of the Constitution set out in the Schedule to that Order.
(2) The Constitution referred to in subsection (1) shall be altered in accordance with the provisions of section 49 thereof in the manner and to the extent set out in this Act, and on the appointed day the Constitution as so altered shall become the Constitution and supreme law of Barbados. (Underlining is mine.) Now, I know that I’m likely to be accused of nit-picking, but it seems to me that the words that I underlined above are very important to understand exactly what the Parliament has done. In enacting the constitutional changes necessary for Barbados to become a republic, Parliament purported to revoke the Independence Order but preserved intact the validity of the Queen’s hand-me-down Constitution.
The Barbados Independence Act expressly gave the Barbados Parliament every right and power to amend or revoke the Constitution that is set out in the Schedule, but it conferred no similar power to amend or revoke the Barbados Independence Order itself.
(Without that express power, the Barbados Parliament could not, lawfully, revoke an Order in Council that was made by the Queen.) It begs the question, why did Parliament choose to preserve the hand-me-down by re-enacting the Constitution set out in the Independence Order, instead of revoking it and enacting our own, cris, bran-new, Constitution? The 1998 Forde Commission’s reasoning for its recommendations, made 23 years ago, for patriation of the Constitution is unassailable. It said: “… the Constitution should be a product of the Barbados Parliament and completely Barbadian. This would rid our Supreme and Basic Law of any trace of the colonial format, remove any possible judicial or theoretical doubt about the power of the British Parliament to legislate further in relation to the Barbados Constitution and clearly signal that we are in all respects ‘firm craftsmen of our fate.’”
However, in its professed desire to “patriate” the Constitution (as in, make it from ‘bout here), as recommended by the Forde Commission, Parliament regrettably declined to “repatriate” it (as in, send it back to where it come from), as recommended by the Cox Commission in 1979.
More importantly, in the attempt to rehabilitate and repurpose the hand-me-down Constitution, Parliament may have inadvertently omitted the numerous amendments that it had previously enacted over the years. Properly construed, the underlined words in section 4 of the 2021 Amendment Act suggest that the thing that Parliament has re-enacted, which has now “become the Constitution and supreme law of Barbados”, is the Constitution that is “set out” in the Schedule to the Independence Order, as amended by the 2021 Amendment Act. The problem is that the Constitution that is set out in the Schedule is not the same Constitution that was in existence as our supreme law up to November 29, 2021. That 1966 independence version of the hand-me-down Constitution was amended numerous times over the 55 years since our Independence, but those amendments have not been expressly saved or re-enacted.
The reforms that those post-independence amendments introduced were both far-reaching and substantial. They included the right of persons residing here for 10 years or more to be registered as citizens (so much for my citizenship) and the replacement of the Privy Council by the Caribbean Court of Justice as our final appellate court.
Are those constitutional amendments still in effect? This question will likely provide fodder for us lawyers in the coming years.
This confusion was entirely avoidable.
Even if I am ultimately wrong in my interpretation of the 2021 Act, why this awkward, backward-thinking approach to such a major, consequential, constitutional change? Parliament could have, and should have, revoked that colonial hand-me-down and enacted a new constitution; one that consolidated and preserved all the best features of the hand-me-down (fundamental rights, etc.), and the myriad amendments previously enacted by it, while establishing the new constitutional regime for our republic. If Parliament had applied a little more creativity and imagination, we would have a new, single, consolidating, constitutional document – one reflecting the will and ingenuity of our own people – instead of the warmed-over, patchwork of colonial legislation that now passes as the Constitution of our new republic.
I fully appreciate that the Government has announced that it intends, eventually, to wheel and come again with a whole new Constitution, with the process of consultation set to begin in January 2022. But, as we all know, lawmaking is a lengthy process. It only took 55 years to make these fundamental changes to become a republic, and 23 years to implement the Forde Commission’s recommendations for constitutional patriation. Who knows, therefore, when the promised whole new constitution will ultimately be enacted. Probably not in the lifetimes of those of us who were born before independence.
In the meantime, in becoming a republic, optics and symbolism are just as important as the necessary constitutional alterations. It was optically curious that Prince Charles was invited to participate in our official ceremonies to declare and celebrate our emancipation from our British colonizers, whom he represents.
It is equally curious that, as the final, official, most fundamental, legislative act in securing that freedom, Parliament chose to retain the colonial remnants of the hand-me-down Constitution, when it could, just as easily, have revoked it and enacted its own. Where is the national pride that inheres in our newfound republican status, when to find the fountain of our Supreme Law, we must still turn to the pages of the old, colonial, supposedly repealed, Independence Order? Patchwork instead of patriation. I guess we are not all that emancipated after all.
Garth Patterson Q.C. is a Senior Partner of Lex Caribbean.
He was called to the Bars of Jamaica and Barbados in 1987 and the Bars of New York and St. Lucia in 1990 and 2011 respectively.
