#BTColumn – The audacity of Independence

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

by Garth Patterson Q.C

Our republic recently hit a major pothole on the road to democracy when five independent senators were, according to one section of the press, “slammed” and “blasted” for their stance with respect to the proposals for constitutional amendments that were approved in the House of Assembly
a few weeks ago.

The Mia Mottley-led administration had introduced a measure to amend the constitution to facilitate the appointment of an 18-year-old to the Senate and to remove the constitutionally mandated power of the President to exercise her independent judgment in respect of the appointment of two opposition senators, there being no Leader of the Opposition to advise her on the choice.

When it became obvious that the Government would not have the necessary support of the independent senators to pass the bill in the Senate, the bill was withdrawn from debate in the Senate, and the Prime Minister subsequently announced that they would not be pursuing their bid to appoint the 18-year-old to the office.

In doing so, the Prime Minister expressed her disappointment that the independent senators had blocked the measure, suggesting that it signaled that we, as a people, have not yet sufficiently evolved to embrace such a progressive idea of having an 18-year-old in the Senate.

The Prime Minister’s criticisms were echoed by several others, including two prominent political scientists,
Dr. George Belle and pollster Peter Wickham. The former said the senators’ actions were “a political embarrassment” and “a slap in the face for democracy in Barbados”, while the latter said that the position taken by the independent senators was sad, selfish and unfortunate.

According to Dr. Belle, it could not be the role of the independent senators to oppose the Government’s will.

Those views are particularly surprising, especially the ones coming from professionals whose credibility is in large measure dependent on their being perceived as independent, or at least not obviously aligned to any political party.They should know a thing or two about independent thinking and the value of independent thought, and should have been staunch defenders of the right of the independent senators to take an independent view, even if they were not in agreement with those views.

Our Government frequently boasts that Barbados is a democracy that is wedded to democratic principles and norms, and that that is “who we are”.

However, the recent vilification of the independent senators seriously calls that notion into question, as there is nothing more undemocratic than an attack on the free expression of independent views, one’s constitutionally guaranteed right of freedom of expression, and the right
of persons to hold views not necessarily aligned with those
of the Government.

To oppose a Government is not only one’s inalienable right, but one’s duty, where genuine, conscientious objection is both necessary and appropriate.

In the case of the independent senators, they have an even higher calling to independent thought – it is imprinted into their constitutional DNA and it is a derogation of duty for them not to remain unwaveringly independent.

Section 36(4) of the Constitution provides that the President must, acting in her own discretion, appoint seven senators, and it prescribes the criteria that must inform their selection. They must be persons whom she considers are able “to represent religious, economic or social interests or such other interests as the President considers ought to be represented.” Unlike the other senators, nowhere in that section is there the suggestion that the senators should be politically aligned, nor is it a requirement that they should eschew any opposition to the policies of the Government.

The senators appointed under this subsection derive their character of independence from being appointed through the exercise of independent judgment by the President, whose office is constitutionally intended to reflect political neutrality.

The selection of these independent senators is one of the few constitutional powers and functions that is reserved to the President where she is not required to act on the advice of, or consult with, some political leader.

The notion, therefore, that independent senators should be berated for exercising independent thought is anathema to the constitutional role that they are meant to play and to the concept of democracy itself.

Dr. Belle’s argument that independent senators “should be independent and should not be such that they are likely to oppose a Government’s will” is both contradictory and confusing.

More importantly, it misdescribes the important function of the independent senators as the vanguard against unchecked political power.

Within the constitutional scheme, they are meant to provide balance and independent thought, particularly when it comes to constitutional reform.

Indeed, it is only in respect of proposed amendments to deeply entrenched provisions of the Constitution (such as the fundamental rights provisions set out in Chapter III and the provisions relating to the composition and membership of the Parliament and its constituent bodies) that the voices of the independent senators are most poignant and relevant.

Unlike regular legislation that will pass with a simple majority (Government has 12 of 21 senators and will invariably be able to achieve a simple majority) those reforms require a two-thirds majority of all the members of the Senate.That means that at least 14 senators must approve the measure for the bill to pass.

As the Government only has 12 votes, and the opposition will usually oppose, the votes of at least two independent senators are vital to the passage of any such bill. As the Government recently discovered, a truly independent senator should not be taken for granted.His job is to oppose when his conscience and his duty demand it.

In this age of acute political polarisation, where one’s identity as an individual is defined by the party with whom he or she identifies, it is refreshing and encouraging to see that some flicker of independence is still alive.It used to be that independence was a good thing – these days, however, you run the risk of being a political pariah for not singing from some political hymn sheet.

If you’re not either a “A”, “B” or “D” then you are condemned to national irrelevance or a form of social and economic purgatory.I know a little bit about that, having never aligned myself with, or supported, any political party and having in recent times the audacity to express views that are not quite congruent with those of the political establishment.

I have been vilified for criticising the Government (and wrongly branded as being anti-Mia) while at the same time being accused of being a sycophant of the ruling BLP government because I had some very complimentary things to say about our Prime Minister. Go figure.

If that is the price of being an independent thinker, then I will happily pay it.And I enthusiastically applaud the independent five for their courage and tenacity in pushing back when their consciences and duty required it. We need, now more than ever, a whole lot more of that.

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.