Westminster likely here to stay, says visiting legal scholar

Amid ongoing discussion of proposed changes to the Constitution of Barbados, a Canadian constitutional scholar has acknowledged that the Westminster form of parliamentary government inherited from Britain will likely endure in the new supreme law.

Professor Richard Albert, the director of Constitutional Studies at the University of Texas at Austin, offered his insights into the potential outcomes of the constitutional process in a lecture hosted by the Constitution Reform Commission in the University of the West Indies’ Henry Fraser Lecture Theatre.

The author of over 25 books on constitutional democracy is the only non-citizen on Jamaica’s 15-person Constitutional Reform Committee.

He acknowledged the uncertainty surrounding the specifics of the proposed changes, declaring that he had no special insight into the specific recommendations of the commission or the decisions of parliamentarians. But the law professor stressed that his observations were based on global trends in constitutional reform.

Speaking on the topic, The Grenade, the Hour Glass, and the Sundial: The Lifetime of Constitutions, Professor Albert implied the continuity of the British model of government.

Often referred to as the Westminster system, this parliamentary system of governance is characterised by the fusion of executive and legislative branches, with the head of government – the Prime Minister – emerging from the legislative body (the Parliament).

The Westminster system’s key features include collective cabinet responsibility, where members of the cabinet must publicly support government decisions, and the role of the opposition in scrutinising and challenging the government.

“It strikes me as more likely than not that the Westminster form of government will endure under the new constitution,” said Professor Albert. “I don’t know. I have no special insight, but it just strikes me based on what I know from the experience of countries that are engaged in constitutional reform past and present, that when changes are made to the constitution, even a replacement of the constitution, the institutions that predate remain in place.

“Rare is the case where there’s total replacement of all institutions and the adoption of entirely new ones. Now, I’m not saying that one way is better or worse. I’m just an observer and analyst. I’m not advancing any preference about what you should or should not do. That’s not for me . . . . I’m not telling you what you should do.”

Presenting to an audience that included Attorney General Dale Marshall, the constitutional scholar cautioned against the adoption of rigid constitutional models that prohibit amendments, highlighting the importance of maintaining an amendable constitution and offering a cautionary note on examples in Germany, France, and Brazil, where certain constitutional elements are fixed.

“Do not use the German-French-Brazilian model where they say ‘here’s how to amend the constitution and use it however you wish, but don’t amend this’,” Professor Albert said. “That is a denial of the very basis of constitutionalism. We should invite change, reflection and reconsideration [because] when you close off that door, you’re denying the people their basic elemental right to define themselves as they wish to be defined.”

He referred to the 17th-century British philosopher John Locke who created an unamendable constitution for the Carolinas in the 1600s, only to see it prove brittle and short-lived. He suggested that making amendments more challenging rather than impossible could be a better approach for protecting certain parts of the constitution.

“[Locke] believed that he got it just right .
that he had hit perfection,” Professor Albert explained. “And he said: ‘This constitution shall remain inviolable forever at all times’.

How long did it last? Not long at all. It proved to be brittle. So be careful by making something unimaginable. There is a better way.

“If you want to make something amendable. make it harder to amend than other things. If you want to make something hard to amend, say you need four-fifths of the vote, or five, six or seven-eighths; don’t say that it is unamendable because that, I think, is bad for the citizens in terms of how they regard their constitution. They will look at it and say, ‘wait, what if I want to change this? We can’t.’ It’s also bad for the endurance of the constitution because it might provoke areplacement of the constitution, rather than its endurance.”

Since it came into force on Independence in 1966, the Constitution of Barbados has undergone 19 amendments between 1974 and 2021. (RG)