#BTSpeakingOut – A solution in search of a problem

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

by A Concerned, Patriotic Barbadian

The Constitution (Amendment) Bill, 2022 was laid in the House of Assembly and debated during its first two sittings. The proposed bill seeks to amend the Constitution of Barbados in two ways:

(1) to allow for the political party which obtained the highest number of votes in the general election following the dissolution of parliament, who did not win any seats in Parliament, to act in the place of an Opposition Leader where required by the Constitution, and in so doing would be permitted to nominate the two opposition senators; and

(2) to lower the age limit for qualification to be elected to the House of Assembly or appointed to the Senate to 18 years old.

It is the contention of this article that this proposed amendment to the Constitution seeks to resolve two problems, neither of which exist, and is therefore a gigantic solution in search of two non-existent problems.

The Constitution of Barbados is the supreme law of this country, and it forms the foundation upon which all our other laws exist. The Constitution is the governing document that gives us our fundamental rights as citizens and forms the basis for our democratic system of governance and our democratic institutions.

The amendment of the Constitution by any Government of the day is not an endeavour that should be entered in lightly or unadvisedly and should be undertaken only when absolutely necessary and in the ultimate best interest of us as citizens.

During the 36 years between 1971 and 2007 there were 11 amendments to the Constitution (the 2003 amendment was never proclaimed). During the 10 years of the last Democratic Labour Party (“DLP”) administration (2008 to May 2018) there were two amendments.

That is roughly 1 amendment every three and a half years, but during the three and a half years of the Mottley Administration’s first term in office alone, there were six amendments to the Constitution. While these statistics, though noteworthy, are not in of themselves an indictment of the Mottley Administration, one should appreciate the gravity of making a change to the supreme law of the land; and any such change that proports to offer a solution, the problem it is trying to fix should certainly not be imagined or the theme of political talking points.

Problem No. 1
The Mottley Administration claims that the two opposition senators cannot be appointed and seated in the Senate unless the Government extends an olive branch to the political party that has gained the next highest votes in the recently concluded general election, in this instance the DLP.

The Government further claims that this is an act of benevolence in pursuit of the noble endeavour of preserving democracy in Barbados. This in my estimation is nothing short of political theatre.

The Constitution provides in 36(3) and section 75 that under normal circumstances, the two opposition senators are appointed by the President under the advice of the Opposition Leader, but if the office of Opposition Leader is vacant, as it now is, the President alone has the discretion to appoint the two senators, without any further advice or consultation.

With that in mind therefore, it is clear to me that even in the unusual circumstance of a 30-0 majority in the House and no Opposition Leader, the two senators can still be appointed.

There is therefore no problem to be solve by the proposed constitutional amendment.

The Mottley Administration does not have to extend any olive branch by offering the other political parties an opportunity to appoint the two senators.

Quite frankly, the two seats are not Miss Mottley’s to offer. Further to that, it is my opinion that any notion that the offer somehow is in pursuit of the preservation of democracy too is a fallacy. Why I say that? Because any appointment of these two senators other than by way of the exercise of the President’s discretion under section 75 of the Constitution would be an affront to the very democratic foundations of our Constitution and a breach of the rule of law.

Problem No. 2
The Honourable Prime Minister claims that the appointment to the Senate of 18-year-old Khaleel Kothdiwala is needed to give the youth a voice in the affairs of governing our nation. When this decision was first announced, Ms Mottley expressed the view that if you were old enough to vote you should be old enough to sit in the Parliament. This view is well supported by comparisons with other nations and their age qualifications for being elected or appointed to what would be their equivalent of our Parliament.

In major European countries such as Germany and France, and in the United Kingdom, the age requirement is 18 years of age. In the United States, which may prove an outlier, the age requirement to be elected to the Senate is 30 years of age. Closer to home, in Trinidad and Tobago and in Guyana, the age requirement is 18 years old, and in Jamaica and St. Lucia the age requirement is 21 years old.

That said however, the notion that the youth in Barbados are voiceless and are somehow barred from making a valuable contribution except if one is appointed to the Senate, is the second instance of a solution in search of a problem.

The voices of our youth echo throughout our nation at all levels of the society. Young people have in the past been given the opportunity to speak at UNICEF conferences on the Convention on the Rights of the Child; young people are at the forefront of many non-governmental organisation doing critical community-based work; and 18-year-olds occupy leadership roles in, for example, the UWI Students Guild and the UWI Law Society, where they have made their voices heard.

The point here is that the hallowed halls of Parliament cannot be the measuring stick for determining if the youth have a voice in this nation. And while Parliament is the seat of governance, the impact on policy and change takes place at all levels of the community where countless young people in various organisations in our nation make valuable contributions and make their voices heard.

The Solution
While it is my opinion that the proposed constitutional amendment is in search of two problems that do not exist, it is also my opinion that this proposed solution is ill-conceived and unsustainable under the rule of law.

The proposed solution is an amendment to the Constitution; an amendment that requires two-thirds majority vote in both chambers of Parliament (the House and the Senate). The Constitution mandates that the Senate must comprise 21 members.

The requirement is as clear as day. When the proposed bill was laid in the House of Assembly, only 18 senators were appointed to the Senate. This means that the Senate was not properly constituted in accordance with the clear requirements of the Constitution and therefore cannot be convened. This further means that the proposed amendment cannot be legitimately passed into law.

This is now the subject of an emergency application filed in the High Court by the former Attorney General under the DLP Administration, Adriel Brathwaite, and therefore a ruling on this point is in the hands of our Courts, the guardians of the Constitution.

However, this apparent attempt to ignore and subvert what are the clear and unambiguous requirements of the Constitution with respect to the composition of the Senate by the Mottley Administration reeks of a scant disregard for the rule of law, and the emergence of a government that is willing to openly exploit its super majority in Parliament under the guise of preserving democracy. The irony, as my late grandmother would say, “wud mek yah head grow”.