Former Chief Justice Sir David Simmons is opposed to Barbados going the route of a referendum in pursuing Constitutional reform, warning that it could be “destructive”.
He has also offered one suggestion as the Government presses on with changes to the Constitution – remove the Prime Minister’s power to extend the contracts of judges, to prevent interference in the judiciary.
Sir David expressed that view during a webinar hosted by the Barbados Bar Association in conjunction with the University of the West Indies on the topic, Constitutional Reform in Barbados: Lessons from the Commonwealth, on which he served as a panellist along with former president of the Caribbean Court of Justice (CCJ) Sir Dennis Byron and Deputy Dean of the Faculty of Law, UWI, Mona, Tracy Robinson.
“I would just wish to make it clear that I am not in support of a referendum,” said Sir David, who also served as Attorney General.
“I was around and very angry as a student in September 1961, when the people of Jamaica went to a referendum and paved the way to withdraw from the Federation.
“….The truth is that people take the opportunity in a referendum to vote largely against the government, and the vote is diluted by extraneous considerations to the central issue of which the referendum was called. It can be very unreliable and very, very destructive on good governance in our situation,” added the legal luminary.
Robinson shared Sir David’s view that a referendum was not the best option.
She suggested there were more constructive ways to get the public’s view on constitutional reform.
“We haven’t had a successful referendum in independent Caribbean countries…so I think there is analysis that referendums don’t necessarily generate the kind of democratic energy that we assume,” she said, pointing to exceptionally low voter turnout in such votes throughout the Caribbean.
“I think what we need are robust constitutional reform processes that are people-centred. We might want to consider constituent assemblies, spaces which give a wide range of persons an opportunity to participate who might not be sitting in Parliament; but a popular vote when not constitutionally required will never get my support,” Robinson added.
Sir Dennis, who served as CCJ President from September 2011 to July 2018, said the views of the public could be accessed in other ways.
For example, he supported the decision by Guyana to have broad-based consultations in reforming its Constitution.
“The views of the public can be accessed in a manner which is probably more suitable for Constitutional development because these views can be differentiated among different provisions rather than having one vote dealing with everything when there are certain things you might agree with and certain things you might not agree with.
“I would prefer the process of engaging the public with a view of keeping some sort of record of what it is that they accept or reject,” Sir Dennis explained.
Meanwhile, speaking specifically to constitutional reform in Barbados, Sir David said he wanted to see High Court and Court of Appeal judges retire at a predetermined age, with no option for the Prime Minister to change it.
“There are provisions which currently require judges to retire at different ages. There is a provision for example that if you are in the High Court you can retire at 65 but you can then write to the Prime Minister asking for an extension to 67. If you are a Court of Appeal judge you can go at 70 but again you can write to the Prime Minister and ask for an extension to 72. You all know my personal experience and I want to see the abolition of that.
“I want to see in future that all judges, whether High Court or Court of Appeal, go at one appointed age. If it is 72 or 75, I don’t care what is determined but do not let us have a differential in ages; it is illogical. Standardise the thing and remove any requirement for any judge to have to seek approval for an extension from a Prime Minister. That has the potentiality to interfere with the independence of the judiciary and if only for that reason it should be abolished,” Sir David contended.
randybennett@barbadostoday.bb
