#BTColumn- Constitutional reform and access to the law

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

by Garth Patterson Q.C.

“… What has been created and shaped, not only by the formal written document (the Constitution as supreme law), but also by the lived experiences of people existing in an intended civic republican, representative, participatory and responsible tradition of governance, is a culture in which citizens were intended, are expected and so should be permitted to achieve social and political meaning and fulfilment by participating legitimately in issues of governance.” – Jamadar, JA. in Attorney-General v Dumas (T&T).

A constitution represents the embodiment, in a written document, of the overarching, guiding principles, values and socio-political philosophies by which a collection of people, connected by common geographical, ideological, familial, and historical ties, agree to organize themselves in a civilized society.

It is underpinned by the universal acceptance of, and commitment to adhere to the rule of law. It is the ultimate expression of the free will of the governed people and of their willingness to submit to an organized form of government. It sets out the parameters of the fundamental rights, liberties, and freedoms to which all citizens are naturally entitled – and reasonably expect to enjoy- while delineating the restrictions and limits on those fundamental rights and freedoms that they universally accept as necessary impositions in the interest of the common good.

It provides the legal and constitutional framework on which the branches of government (legislative, judicial, and executive) are constituted and organized and within which they operate; and it imposes necessary limits on the powers conferred of those persons and institutions that are charged with the responsibility of good governance of, and for, the people.
The Constitution is not just a set of abstract laws – it is the people’s document, the declaration of their sovereignty, the foundation on which the state is built. It is their Supreme Law.

It is, therefore, a fundamental tenet of any civilized society, which has as its lodestar or compass an immutable commitment to the rule of law, that the law, especially its Supreme Law, must be accessible to those whom it is intended to bind. In a lecture entitled, The Rule of Law, Lord Bingham emphasised the importance of the law being “accessible, and so far as possible intelligible, clear and predictable.” For the citizenry to meaningfully participate in the experiment of governance, access to the law necessarily implies effective access – where the ability to discover what the law is requires nothing more than functional literacy.

However, when the law is accessible only to the professional elite or requires the erudition of those learned in the language and traditions of statutory interpretation and judicial precedent to plumb its depths; when its scope, import and meaning are discernable only through opaque and esoteric legal analysis by scholars, who are more often than not divided in their conclusions as to what it is – then the law has failed in one of its primary, fundamental, imperatives.

My recent article on the constitutional reforms that were adopted for Barbados to become a republic, and the subsequent legal memoranda that I sent to the Government (which highlighted the serious constitutional crisis that may now exist in the wake of our Parliament’s less-than-satisfactory attempt at patriating the 1966 Independence Constitution, by replacing it with a 2021 Republican Constitution, which is riddled with inconsistencies, ambiguity and glaring omissions), have been received with a somewhat muted response from the Government.

I anticipate that, in due course, my analysis will be subjected to intense scrutiny and critique by our most brilliant legal luminaries, whose sage wisdom, gravitas, learning and eminence will doubtless be beyond reproach.

The predictable outcome is a constitutional thesis that vigorously defends and vindicates the “impeccable” work of our constitutional draftsmen, and whose provenance will be of such academic and juristic authority and renown that its conclusion will be both irrefutable and incontrovertible. The verdict: that Patterson boy talking bare foolishness.

In my defence, my views as to the correct approach to Constitutional patriation are neither novel nor without precedent. For some guidance, our constitutional drafters needed to look no further than our neighbours to the south, Guyana and Trinidad and Tobago, who long before us travelled the same yellow brick road to republicanism. In both cases, the approach to the same issue was an exercise in clarity and simplicity, and the end product was a single, comprehensive, constitutional document that was readily accessible to all its citizens; a document that even a first-former could comfortably navigate.

The twin-islands became a republic by the passage of the Constitution of the Republic of Trinidad and Tobago Act, 1976, whose preamble declared that its purpose was “to establish the Republic of Trinidad and Tobago and to enact the Constitution thereof in lieu of the former Constitution.” The business end of the enactment, which was the means by which the old, colonial, Independence Constitution was retired, and the Constitution patriated, read simply: “3. On the appointed day all the provisions of the former Constitution are repealed and the Order-in-Council of 1962 is revoked, and thereupon the Constitution [set out in the Schedule] shall have effect as the supreme law of the State in place of the former Constitution.”

There was then set out in the Schedule to that Trinidad enactment the full, complete, new, Republican Constitution, chapter and verse, top to bottom, in plain view for all to read.

Guyana followed an almost identical approach, enacting in 1980 the Constitution of the Co-operative Republic of Guyana Act, the purpose of which was declared, unequivocally, as an “Act to enact a new Constitution of the Co-operative Republic of Guyana, to repeal the Guyana Independence Act 1966, the Guyana Independence Order 1966, and the existing Constitution…” There also was set out in the schedule the entire new Republican Constitution, chapter and verse.

Contrast the Barbados approach, which represented a significant departure from that tried and proven model. The preamble to the Constitution (Amendment) (No. 2) Act, 2021 states that the purpose of the Act is “to alter the Constitution in order to provide for Barbados to become a republic with a President who shall be Head of State of Barbados…”. No statement of intent to repeal the old, colonial, independence document, and to replace it with a new republican constitution. In fact, subsection (1) of section 4 revokes the 1966 Independence Order but expressly preserves the validity of the 1966 Independence Constitution. If the framers intended to repeal that 1966 Independence Constitution and to replace it with a new Constitution, they had a funny way of doing it.

The subsection bears no hint of constitutional patriation.

Then follows the problematic language in subsection (2), which is to the effect that the 1966 Independence Constitution, as altered by the 2021 Act, “shall become the Constitution and supreme law of Barbados.” There is considerable disagreement as to what that means. Is the 1966 Independence Constitution still valid and in effect (in which case, the vaunted patriation has not occurred); or has it been repealed (despite having been saved by the preceding subsection) and replaced by a new Republican Constitution? The Government’s oft-promised patriation of the Constitution, coupled with the language used (‘shall become’) in that subsection and later references in the 2021 Act to “the Constitution in force before”

November 30, 2021, all seem to point to the latter conclusion; although the exact content of this new, post-November 29, 2021, Republican Constitution remains mysterious to any lay reader (and, likely, most lawyers) because of manifest deficiencies in the drafting of the 2021 Act.

Unlike our neighbours who preceded us in this republican endeavour, the drafters of our new Republican Constitution, in their wisdom, elected not to set out in a schedule to the 2021 Act, the full text of what has now apparently become the new Republican Constitution.

But for the citizens of our new Barbados Republic to meaningfully participate in issues of governance and self-determination, by the scrupulous insistence on strict adherence, by those who traverse the corridors of power and to whom are entrusted the awesome responsibility of administering the instruments and institutions of government, to the rule of law and to the faithful discharge of their functions within the parameters of our Constitution and Supreme Law, it is not unreasonable to expect that

Law to be accessible to every citizen, and to be formulated with sufficient precision, comprehensiveness, predictability and clarity for Joe Blow to know what it is and to articulate it.

Sadly, after 55 years of debate, two commissions of enquiry, countless advisory reports and the hurried deliberations of the republican transition committee, the hodgepodge that supposedly now represents our new Republican Constitution completely misses that mark and is, objectively speaking, untenable.

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.