Tag Archives: Barbados Constitution

The New Constitution: Barbadians Must Insist on the Power to Recall

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The Constitutional Reform Commission (CRC) started its work this week under the banner ‘Have Your Say’. The blogmaster encourages Barbadians to make time to submit opinions on what a NEW Constitution should look like. In the same way we are proud to promote agreements. titled the Bridgetown Accord, we must not be afraid to frame a New Constitution which represents a model for SIDs and even MDCs. 

One of the initial contributions to the CRC identified the need for fixed terms for the prime minister. The blogmaster would add the importance of including the power of recall. The level of cynicism and apathy by the citizenry makes recall mandatory in the NEW Constitution. This would help to rekindle hope for our failing system of government. 

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A Heather Cole Column – When Is the Next General Election?

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The ruling Administration has reneged on its Covenant of Hope where it promised to include Barbadians in governance. Perhaps one of the most frightening examples to date is Barbados becoming a Republic without a Referendum or consultation with the people. This article will focus on the impact on General Elections.

We have all heard it so many times that it has become second nature to state “elections in Barbados are constitutionally due every five years” and since the last general election was held in 2018, it would be expected that the next General Election will be held in 2023. The latter part of the statement is now in doubt.

The admission that the Constitution will come into existence after the Republic has started was brazen. This form of oppression is subtle. It should be the other way around with the Constitution first and the Republic after so that everyone can read and understand what they are getting into.

That admission has changed everything. One does not know how long a time period that will be. Since a date has not been specified, could it be a month, six months, a year, five years? The Prime Minister’s statement was not precise and therefore it cannot be measured. Hence, regardless of political affiliation, every member of the Barbadian public must acknowledge that this is a massive red flag.

There are several requirements to getting a mortgage and once these are met, the purchaser is provided the mortgage agreement and can get legal advice on the contents before signing. It is a legally binding document by which a person agrees to the principle, interest, payments, the terms and the other conditions. If the bank provided you with a piece of paper with just the title Mortgage on it and informed you that this will be the mortgage and asked you to sign without the principle, interest, payments, the terms and the other conditions being declared in writing, would you sign that piece of paper? Added to this you are told by the bank that the actual mortgage document with the written details will be available shortly after, not even on a specific date, would you sign? No one with all their mental faculties working would sign this blank mortgage document as the bank could write after the fact whatever it wishes on the document.

In the scale of things, the Constitution of Barbados is far more significant than a mortgage. It too is a legally binding document that will not only contain the laws that govern a mortgage but every other law that defines all aspects of life in Barbados. So how can the people of Barbados be asked by the government to agree to a change in the status of the State and a new Constitution with a blank document? What will be written on this document after the fact?

Essentially that is what the government is asking the people to do, to agree to a grand show and tell and later find out about the laws that make the new Constitution. It is a buy now pay later concept that is a trap for unsuspecting buyers.

There is no guarantee that elections will be held in 2023 as this is based off the present Constitution. Without a definitive time period of when the proposed Constitution will be ratified into law no one knows when the next General Elections will be. Will the document be laid in Parliament in a month, a year, or two years from the change of status? Only heaven knows.

In addition, one cannot even assume who will be legally responsible for issuing the writ that declares when elections will be held. One does not know if changes will be made to the Electoral and Boundaries Commission, if the matter of campaign finances will be a free for all, if payments to social media influencers will become part of the law.

The action by government to change the status of the island first and the Constitution after the change in status causes one to question the legality of this process. Due process is that the laws come first. What happens in the interim, emergency law or military law?

The matter of when the next General Elections are to be held is not to be taken lightly. There has been no Referendum, no terms of reference, no draft issued on the type of Republic or the contents of the new Constitution. There are just too many unknowns and people wanting to believe what they have no evidence of.

To the electorate, why is this entire process a secret? You are not at a Fair, the Constitution of Barbados should never be part of a lucky dip where after withdrawing your hand from the box you get the surprise of your life! Now is the time to stand up and fight for your rights.

The Jeff Cumberbatch Column – A Year of Constitutional and Governance Issues

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At this time, people tend to reflect on the twelvemonth past and to contemplate the coming one. Today, I propose to attempt the first.

From my perspective, 2018 has been dominated by issues of governance and by their relation to the prescriptions of our supreme law. A review of my columns for the year corroborates this opinion. I had even thought of titling this week’s musing “A column of columns”.

Whether it was debate on the exclusive authority of the Prime Minister to set the date for a general election; on the legitimacy of the last governing administration retaining office in the absence of a sitting Parliament; on the unprecedented result of the May 24 general election that raised a minor constitutional crisis; on the resolution of the vacuum created in the Senate by the absence of an elected Opposition in the Lower House of Parliament; on the optics of the appointment of Bishop Joseph Atherley who had recently won a parliamentary seat as a member of the winning party as Leader of the Opposition; on the successful amendment to the Constitution so as to permit two nominated members of that Chamber otherwise disqualified to take up their seats; or on the recent unsuccessful attempt to remove the legality of the mandatory death penalty from our Constitution, local public discourse during 2018 has been consumed with the interpretation of the rules that govern our political administration.

In January, I suggested in Whose call is it, anyway? that on a construction of the relevant provisions, it was the Governor General rather than the Prime Minister who had the constitutional authority to issue the writs for a general election in certain circumstances. I wrote then-

The questions therefore beg asking, did the framers of the Constitution intend that a Prime Minister should be the sole authority in respect of the timing of elections in all circumstances of dissolution? Or does that exclusivity apply only in a case where Parliament has been dissolved by Prime Ministerial fiat? And does that imply therefore that if the House automatically dissolves itself through the effluxion of time, as in the current case, that the Governor General then assumes sole discretion as to the election date?

And I suggested an amendment-

“Our regrettable lack of clarity in this matter is to be contrasted with the drafting precision of the provision in section 69 (1) of the Trinidad & Tobago 1976 Republican Constitution –“A general election of members of the House of Representatives shall be held at such time within three months after every dissolution of Parliament as the President, acting in accordance with the advice of the Prime Minister, shall appoint.” [Added emphasis].

On the issue of the senatorial vacuum in opposition, I was of the persuasion that while other learned views, including seemingly that of the government, suggested that section 75 solved the problem, our Constitution did not provide either clearly or at all for such an eventuality. While our section 75 did turgidly provide –

During any period in which there is a vacancy in the office of Leader of the Opposition by reason of the fact that no person is both qualified in accordance with this Constitution for, and willing to accept, appointment to that office, the Governor-General shall-

  1. act in his discretion in the exercise of any function in respect of which it is provided in this Constitution that the Governor-General shall act in accordance with the advice of the Leader of the Opposition; and

  2. act on the recommendation of the Prime Minister in the exercise of any function in respect of which it is provided in this Constitution that the Governor-General shall act on the recommendation of the Prime Minister after consultation with the Leader of the Opposition…

I begged to differ-

We should note that the section does not present the two elements as alternatives, in which case the draftsman would have used “or”, but rather as cumulative (“and”), thereby intending that both elements should be satisfied. Nor does it seem to import clearly that the second element (willingness to accept) is relevant only where the first element of qualification is satisfied.

And in An unforeseen event in May, I again sought to contrast this with the much clearer provision from Trinidad & Tobago-

Where the office of Leader of the Opposition is vacant, whether because there is no member of the House of Representatives so qualified for appointment or because no one qualified for appointment is willing to be appointed, or because the Leader of the Opposition has resigned his office or for any other reason, any provision in this Constitution requiring consultation with the Leader of the Opposition shall, in so far as it requires such consultation, be of no effect.

The conundrum was, of course, ultimately resolved by the defection of Bishop Atherley from the parliamentary group of the BLP and his subsequent appointment as Leader of Her Majesty’s Loyal Opposition, even though this was not at all free from controversy in some quarters-

The Chairman of the Barbados Labour Party, the political party under whose aegis the Bishop contested the parliamentary seat in the recent general election, has publicly rebuked Bishop Atherley for his conduct in “crossing the floor”, and has called on the goodly MP to declare whether he has left the party or intended to do so, accusing him of dishonourable conduct. According to one report, Mr Payne is quoted as saying, “I was hurt and I couldn’t believe what I was hearing. Every night during the election campaign . . . nobody articulated these policies any better than the Honourable Member for St Michael West . . . and [he comes] to this House and asks questions like: If Mia’s plan is home-grown or facilitated by the IMF; if we sent signals to the electorate of the path ahead; will the Dems be investigated for malfeasance?

And some, including Professor Emeritus of History, Pedro Welch, and others, openly doubted its conformity with the constitutional text, arguing that a literal interpretation of the relevant provision contemplates a plurality of members in order for a parliamentary opposition and, hence, its leader, to be lawfully constituted. Unless the literal interpretation leads to a manifest absurdity, the argument continues, then the words of the provision should be given their natural and ordinary meaning.

In A semblance of Opposition on June 24, I wrote in response-

While I understand and respect the force of this view, the literal meaning of a legal provision must be enabled by the accepted canons of interpretation, including the one that the plural includes the singular, as provided by section 4 of the Interpretation Act, Cap 1. Otherwise, as I have pointed out before, the Constitution would have effected the unlikely and patently absurd requirement that the Prime Minister and Governor General must always be male. The canon that “he includes she” is of the same genus as that of “the plural includes the singular” and the former is not to be treated as self-evident while the latter is to be reduced to the level of “quirkdom”. In any event, as I have also argued, the Governor General is obligated to act in this mater on her own judgment and so long as she was satisfied in her mind that Bishop Atherley was “best able to command the support of a majority of those members who do not support the Government”, or that he commanded the “support of the largest single group of such members who are prepared to support one leader” then the matter was put beyond pale…

A peaceful and blessed 2019 filled with love to all…

The Jeff Cumberbatch Column – A Semblance of Opposition

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So great was the degree of disgust felt with the governance of the outgone Democratic Labour Party administration that the vox populi determined at the recent general election that it should not even be permitted to constitute Her Majesty’s Loyal Opposition in the next Parliament. Nor did the electorate consider that any other group of individuals should do so.

This was an eventuality never contemplated by the framers of our Constitution either expressly or at all. The effect was to create a minor constitutional crisis. History will record that for reasons that up to now remain a matter of pure conjecture, His Grace the Bishop Joseph Atherley, who had campaigned as a candidate for, and as a member of the Barbados Labour Party, decided to break ranks with the governing administration in Parliament and to have himself appointed as Leader of the Opposition.

Though perfectly constitutional in my considered view, this has proven to be a most unpopular development. Some, including Professor Emeritus of History, Pedro Welch and others, have doubted its conformity with the constitutional text, arguing that a literal interpretation of the relevant provision contemplates a plurality of members in order for a parliamentary opposition and hence its leader to be lawfully constituted. Unless the literal interpretation leads to a manifest absurdity, the argument continues, then the words of the provision should be given their natural and ordinary meaning.

While I understand and respect the force of this view, the literal meaning of a legal provision must be enabled by the accepted canons of interpretation, including the one that the plural includes the singular as provided by section 4 of the Interpretation Act, Cap 1. Otherwise, as I have pointed out before, the Constitution would have effected the unlikely and patently absurd requirement that the Prime Minister and Governor General must always be male. The canon that “he includes she” is of the same genus as that of “the plural includes the singular” and the former is not to be treated as self-evident while the latter is reduced to the level of “quirkdom”. In any event, as I have also argued, the Governor General is obligated to act in this mater on her own judgment and so long as she was satisfied in her mind that Bishop Atherley was “best able to command the support of a majority of those members who do not support the Government”, or that he commanded the “support of the largest single group of such members who are prepared to support one leader” then the matter was put beyond pale.

However, the appointment has also proven to be unpopular on both sides of the local political divide. The Chairman of the Barbados Labour Party, the political party under whose aegis the Bishop contested the parliamentary seat in the recent general election, has publicly rebuked Bishop Atherley for his conduct in “crossing the floor”, and has called on the goodly MP to declare whether he has left the party or intended to do so, accusing him of dishonourable conduct. According to one report, Mr Payne is quoted as saying, “I was hurt and I couldn’t believe what I was hearing. Every night during the election campaign . . . nobody articulated these policies any better than the Honourable Member for St Michael West . . . and [he comes] to this House and asks questions like: If Mia’s plan is home-grown or facilitated by the IMF; if we sent signals to the electorate of the path ahead; will the Dems be investigated for malfeasance?”

The stridency of this reproach should have served to allay the suspicions of all but the most cynical, not a few in number, that regard the Atherley defection as nothing but a plot hatched by his party to ensure the absence of a parliamentary voice for the Democratic Labour Party for the duration of the current Parliament.

Some disfavour for the appointment has also come, quite naturally, from the DLP, which perceives itself as the rightful heir to the legitimate voice of parliamentary opposition once it does not possess the reins of government.

In my opinion, the Atherley appointment, though necessitated by the Constitution, is an inadequate and unsatisfactory replacement for an organized Opposition party that is backed by competent research and technical know-how so as to be instinctive presenters of alternative policy initiatives and critical assessors of official dogma. The electorate clearly thought otherwise.

In spite of his best efforts in this regard, Bishop Atherley will always be perceived to be either overly accommodating or traitorously hypocritical in his analyses of government policy in Parliament. This is but another instance where constitutional theory does not accord with practical political reality.

One matter that has seemingly not gained popular currency but that still concerns me however is whether a House of Parliament that is inadequately constituted is competent to pass any legislation. This is in reference to the Senate that passed the recent Constitution (Amendment) Act even though it did not comprise the number of members required by the Constitution to be regarded as the Upper Chamber in section 36(1). I commented on this earlier and wondered whether I was not caviling on the ninth part of a hair, but a discussion with a senior counsel last week confirmed to my mind that much might have been effected in the name of constitutional governance in recent weeks that required deeper and more careful thought.

PS I extend sincere condolence to the family and friends of Sir Fred Gollop who passed last week. I became acquainted with Sir Fred relatively recently when he joined me as the only Barbadians serving on the Regional Judicial and Legal Services Commission [RJLSC], the body charged with the management of the Caribbean Court of Justice. I found him to be, in Chaucer’s words, “a verray parfait gentilknight” and am not at all surprised at the multiple stated descriptions of him as “dignified”, “quiet”, “genial”, “humble” and “wise”. May he rest in peace.

I extend my sincere condolences too to the relatives and friends of another reader (!) of this column, the late Professor Emeritus of Education, Earl Newton, who recently shuffled off this mortal coil. Unfailingly polite, Earl was fiercely proud of his alma mater, Combermere. I recall that he and Professor Andrew Downes took me to task in the Senior Common Room one day when I dared to compare that school unfavourably with another. Rest in peace, Sir.

A Matter of Interpretation

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Today’s Barbados Advocate editorial should be of interest to the BU family – David, blogmaster

For me, as a public legal scholar, one of the more gratifying aspects of the current politico-constitutional enigma owed to the unprecedented outcome of last month’s general election and its consequences, has been the eagerness of citizens generally to seek knowledge on and to discuss what is the appropriate constitutional resolution of these issues. Indeed, some have not been timid to offer their own views publicly on these matters.

In this connection, a number of individuals have recently drawn my attention to an article by my now retired academic colleague, the erstwhile Deputy Principal and Professor Emeritus of History, Pedro Welch, in another section of the press.

Under the caption, “Unconstitutional appointment”, Pedro argues that the appointment of His Grace, the Bishop Joseph Atherley MP, as Leader of the Opposition was not permitted by a close reading of the Constitution and may be unconstitutional. Pedro uses an argument based purely on English grammar to suggest that the relevant section in the Constitution, section 74, contemplates an Opposition with what he terms a “plurality of association”. He states,

“The implication seems clear. The Constitution assumes that a plurality of association is required for an aspirant to the office of Leader of the Opposition to be recognized as having the support that qualifies him/her to be so appointed. Under this assumption, it seems clear that a single person cannot, by definition, be considered to have majority support or group support in the absence of a plurality of such support. In short, a single person cannot constitute a majority in the absence of like-minded others…We may also note that most dictionaries define a majority as the greatest number or part, thus requiring a plurality.”

I commend Pedro for adding the discipline of his scholarship to the public debate and accept the force of his reasoning so far as the English language is concerned. He broached the issue with me on Monday last week and I am pleased to see that he has written on it.

However, against his argument, there are certain conventions in drafting that are to be considered in the construction of a legal provision, One of these, well known to most laypersons, is that “the masculine reference includes the feminine”. As a consequence, it would scarcely be argued that the appointment of the current Governor General, or even that of the current Prime Minister would be unconstitutional simply because the constitutional text, in reference to these offices stipulates, “he”, “him” or “his”.

As it pertains to the Governor General, section 74 (2), for instance, provides-

Whenever the Governor-General has occasion to appoint a Leader of the Opposition he shall appoint the member of the House of Assembly who, in his judgment, is best able to command the support of a majority of those members who do not support the Government, or if there is no such person, the member of that House who, in his judgment, commands the support of the largest single group of such members who are prepared to support one leader.. {Emphasis added]

And for the Prime Minister, section 70 mandates-

The Prime Minister shall, so far as is practicable, attend and preside at all meetings of the Cabinet and in his absence such other Minister shall preside as the Prime Minister shall appoint.

Despite ordinary English usage, it would not be seriously contended by anyone that, by virtue of the words of these sections, the Constitution assumes that the holders of these offices would be men only.

Another convention of statutory interpretation, though one much less well known, is that words in plural form or number include those in the singular and vice versa. Indeed, section 4 of the Interpretation Act, Cap 1 of the Laws of Barbados, captures both of these conventions neatly-

“In this Act and in all Acts, regulations and other instruments of a public character relating to the Island now in force or hereafter to be made, unless there is something in the subject or context inconsistent with such construction,

or unless it is therein otherwise expressly provided-

( a ) words importing the masculine gender include females; and

(b) words in the singular include the plural, and words in the plural include the singular.” [My emphasis]

Thus, the relevant section, s. 74(2), already cited above, would cover the circumstance where there are more members than one who do not support the government (members) as well as that where there is a single member that does not support the government. In that latter case, the notion of a majority would be otiose and therefore meaningless.

This piece is being prepared on the day that Bishop Atherley is scheduled to present his parliamentary response to the Prime Minister’s mini-budget. The nature and content of his response today will serve to establish, in the public mind, the genuineness of his opposition to the governing administration, but once Her Excellency. the Governor General, was so persuaded in her judgment, she had little option in the circumstances other than to appoint him to the position.

The Jeff Cumberbatch Column – A Barbadian Miscellany I

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The local constitutional conundrum wrought by the cocktail of the unforeseen results of the recent general election; the nominations to the Senate of at least three individuals ineligible under existing law; and the charmed creation of an Opposition leader from among the ranks of the governing administration continued apace last week. It was all to be added to by the news that three interested parties had filed a petition against Barbados before the Inter-American Commission on Human Rights challenging the legitimacy of the statutory provisions in our Sexual Offences Act that criminalize buggery between consenting partners and serious indecency. The latter is an offence that, on a literal interpretation, covers almost any imaginable sex act-

An act of “serious indecency” is an act, whether natural or unnatural by a person involving the use of the genital organs for the purpose of arousing or gratifying sexual desire.

Needless to say, it is rarely prosecuted when it occurs between consenting adults.

The incongruity of the appointment of His Grace the Bishop Joseph Atherley MP as the Leader of the Opposition, given the substance of his recent electoral campaign, was brought home forcibly this week with the disparate views expressed by the Opposition leader and his nominated Senator during debate in the Lower and Upper Chambers with regard to the provisions of the Constitution (Amendment) Act 2018.

The appointment of a formal Opposition leader so as to give the façade of bipartisan parliamentary consideration of legislation is not a credible substitute for an Opposition party enabled by trained research assistance and other administrative support. However, in light of the express text of the Constitution, the Governor General had little option but to appoint Bishop Atherley, once he had declared his intention of not supporting the Government and once that assertion accorded with her judgment According to section 74 (2)-

Whenever the Governor-General has occasion to appoint a Leader of the Opposition he shall appoint the member of the House of Assembly who, in his judgment, is best able to command the support of a majority of those members who do not support the Government…

As for the constitutional amendments themselves, two were of course necessary to enable the governing administration to have in Parliament those whom, in its considered opinion, are best able to articulate its policies in the Upper House. Few would begrudge the new administration this right, especially given its overwhelming support by the electorate. And I am not among those who believe that the Constitution is unalterable. After all, even the document itself creates the means for its own alteration.

However, one would reasonably expect in the interests of civic engagement and trust that any fundamental changes would be made subject to public discourse after the case for their revision has been clearly put. I do not imagine that the amendment relating to the residency requirement of a senator would qualify as a fundamental alteration at the present day, although the level of entrenchment of that particular provision might legitimately raise an eyebrow as to the framers’ rationale.

Less so, however, is the amendment relating to the proscribed dual nationality of the parliamentarian or, as it is so euphemistically put in the Constitution, one who is “by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign Power or State…”

A similar provision is located within most of the regional Constitutions. For example, section 48(1) of the Trinidad & Tobago Constitution 1976 states-

No person shall be qualified to be elected as a member of the House of Representatives who-

  • is a citizen of a country other than Trinidad and Tobago having become such a citizen voluntarily, or is under a declaration of allegiance to such a country…”

and section 40 (2)(a) of the Jamaica Constitution provides-

“No person shall be qualified to be appointed as a Senator or elected as a member of the House of Representatives who- 

is, by virtue of his own act, under any acknowledgment of allegiance, obedience or adherence to a foreign Power or State…

The reason for this disqualification seems to be a secular version of the axiom that “no man can serve two masters”, but the absence of popular discourse on the issue before its passage robbed the nation of its being able to weigh in intelligently on the matter. I had commented a few days ago in an opinion  piece entitled An unforeseen event that the Constitutional draftsman had made a hash of our section 75 which might have been intended to cater to the circumstance where there was no apparent Leader of the Opposition in the Lower Chamber but, which had, by its less than lucid provision, created some doubt in that regard. I had suggested as an alternative the clearer Trinidad & Tobago provision-

Where the office of Leader of the Opposition is vacant, whether because there is no member of the House of Representatives so qualified for appointment or because no one qualified for appointment is willing to be appointed, or because the Leader of the Opposition has resigned his office or for any other reason, any provision in this Constitution requiring consultation with the Leader of the Opposition shall, in so far as it requires such consultation, be of no effect. [Emphasis mine]

I note however, from the text of the Bill that we have chosen to retain the identical text from the original section 75, while nevertheless mandating the Governor General to “after consultation with the political parties which do not support the Government, act in his discretion in the exercise of any function in respect of which it is provided in the Constitution that the Governor-General shall act in accordance with the advice of the Leader of the Opposition…”

This new provision appears now to require the Governor General to consult in a circumstance where the former provision empowered him to act in his sole discretion. I trust that it would have been noted by officialdom that there is a constitutional ouster clause applicable to any such  arrangement. Section 32(5) provides –

Where the Governor-General is directed to exercise any function in accordance with the recommendation or advice of, or with the concurrence of, or after consultation with, any person or authority, the question whether he has so exercised that function shall not be enquired into in any court.

Finally, I observe that the debate in the Senate yesterday proceeded in the absence of at least one of the nominated members. The government, doubtless out of an abundance of caution, had chosen to appoint two Senators pro tempore. The legislation was accordingly passed and I might be “caviling on the ninth part of a hair” but the question does beg asking, “Was the Senate legally constituted in those circumstances?” And what is to be made of the provision in section 36 (1)?

The Senate shall consist of twenty-one persons who, being qualified for appointment as Senators in accordance with the provisions of this Constitution, have been so appointed in accordance with the provisions of this section.

To be continued…

 

 

 

Parliamentary Democracy Under the Microscope: Agenda for Change

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Submitted by Doc Martin

I resonate with commentators on this blog and elsewhere who see the 30-0 sweep wrought by BLP in the May 24 election as a blessing in disguise. But not necessarily for the same reasons!  For those who are willing to look, listen and learn from their mistakes and for those who have “come of age” politically, it is indeed a blessing. 
 
Even as this is being written, the post-election political situation continues to unravel with the so-called crossing of the floor by one of the successful BLP candidates in the May 24 election. This, together with the subtle (and not-so-subtle) retreat of the Prime Minister from some of the promises made in the election, as well as her feigned attempts to convince Barbadians that she is now getting to learn the true gravity of the debt situation, should cause Barbadians to sit up, take note and demand changes in our system of democracy.
 
Poetic Justice
The first blessing in disguise is that the party that itself entered into several large debts on the country’s behalf, must now come and attempt to manage what is left of theirs and that added by the DLP.   That is poetic justice if ever there was any.  And to have to do it all alone i.e. with no real parliamentary opposition, is also some poetic justice.  Bajans do have short memories! Many have forgotten the 200 – 700 million (we are still not sure of the final figure) spent on the prison at Dodds, St. Philip by the previous BLP administration of 1994 – 2008. Perhaps an enquiry into the occupancy level at the prison in the context of its capacity might yield interesting results.  If we have the capacity, we could consider renting/leasing out part of it to other Caribbean or Latin American countries (payable in Canadian dollars, of course!). That might help us with some of our foreign exchange problems!
 
Democracy under the Microscope
Another of the blessings the situation affords us is the opportunity to review the workings of our system of democracy.  The occasion of the 30-0 BLP has now exposed, in sharp relief, the inadequacies, not only of the first-past-the-post system but more fundamentally, the dysfunctions of so-called “representative democracy”.  Both are in need of urgent attention by the electorate.
 
With respect to the FPTP system, the revision required is very clear: we need to consider moving to the proportional representation system so that this 30-0 result can never occur again.  Many do not know or have forgotten that not all Caribbean countries have a first-past-the-post system. Guyana has had a system of proportional representation since 1964 and although the ethnic situation in Guyana is different from that in Barbados, there does not seem to have been any major problems with the system. A quick overview of the system in Guyana can be found here: http://www.nowgrenada.com/2015/05/proportional-representation-guyana-recent-elections/.
 
Had a system of proportional representation been in place in Barbados, the results of the election, using the simplest proportional representation calculations, would have been as follows:
 
proportionalrepresentation
The Representative: Servant or Master?
Democracy literally means government by the people; in other words, decision-making by the people. In practical terms this means that whenever major decisions are to be made, all the eligible people are to make it for themselves by one mechanism or another.  This form of direct democracy is still practised today in the cantons of Switzerland to some extent. The interested reader can follow this link to read a non-technical article about this: https://www.weforum.org/agenda/2017/07/switzerland-direct-democracy-explained/. 
 
The form of democracy we practice is called representative/parliamentary democracy.  It is an INDIRECT form of democracy in that the people periodically select a set of persons to conduct their affairs over a five year period at a time. In principle, the relationship we have with our parliamentary representatives really ought to be the same principal-agency relationship that we have with our attorney or perhaps our real estate agent. In other words, the so-called politician ought to be our servant, plain and simple.  
 
But due to a potent combination of indolence, ignorance and “ostrichism” on our part as well as the scheming, manipulation and sheer corruption on the part of those we have elected, we have allowed the roles to be reversed so that the agent has become the principal, the servant, the  master. So then it IS true that we have settled for a democracy that is “five minutes every five years in a polling booth!”. That is the crux of the problem we have been facing for a long time.
  
That is why this constitutional and financial crisis that we are up against must be seen as the opportune moment to get back hands on control of our affairs.  It cannot be that we ask 30 persons to represent us for the next five years and then go about our business like absentee landlords. There was a time, in the very distant past, when we could sit back and let our representatives get on with the job knowing they had our best interest at heart.  Those were the days of altruism and chivalry!  We are witnesses to the fact that those days are gone! Today’s politician knows how to work the system to the benefit of himself/herself and his or her band of outlaws (pun intended!) and yard fowls.  In short, today’s average politician is a highway robber, in broad daylight! Now is the time to put an end to this!
 
Therefore, with respect to the system of representative parliamentary democracy itself, there is need at this time for two “mission critical” revisions: (1) power to recall representatives and (2) integrity legislation.
 
Power of Recall
The need for the power of recall by the electorate is urgently needed.  The servants of the people cannot take for granted that they can cross the floor at will, fail to look after the interests of citizens or commit gross acts of corruption with our taxes with impunity.  At the time of writing this, one successful BLP candidate had announced and solidified his intention to “cross the floor”.  In my view, this is a developing situation and so what the expression “cross the floor” really means, in the absence of an official opposition party, is yet to be unravelled. Is Mr. Atherley now an independent? It is in situations like these that one would wish the electorate had the power of recall of representatives. Then the political career of people like Hamilton Lashley might have been written somewhat differently! We should now see the wisdom of the Solutions Barbados contract with its candidates!
 
Integrity Legislation
With regard to integrity, much can be said, especially when one takes into account the claims of corruption and counter-corruption levelled at both parties.  It is common knowledge that enhanced sales promotion techniques, a.k.a. as “vote buying” were used in May 24 election. Some parties’ T-shirts came with up to $300.00 cash in “incentives” it appears.  It is alleged that in the St. James South constituency, about $10,000 was shared out, though apparently, not by the DLP.  In another case, it is alleged, a load of voters arrived at a polling station but did not know that the name of the candidate they were to vote for!  This is the level to which our parliamentary democracy has descended!  It is time to put a stop to this!
 
Parliamentary Pay
Nobody seems too worried that we have allowed our servant-representatives to successively raise their parliamentary salaries to $17,000 plus PER MONTH as well as earn substantial pensions with just eight years of service while civil servants need to put in thirty three (33) and a third years to be eligible for a modest to measly pension at the time of their lives when they need the most help.  It has not gone unnoticed that none of the parties, first, second or third, made reduction of parliamentary salaries an election issue! I wonder why!
 
If I am not mistaken, the majority of this population is black so when I hear commentators talk about white-on-black exploitation and omit to talk about this black-on-black variety of exploitation, it stokes my ire, to put it mildly.  Does exploitation now come with a choice of colour?
 
Agenda for Change
I repeat that the 30-0 victory by the BLP is a blessing in disguise.  The blessing is the opportunity to make FUNDAMENTAL and RADICAL changes to our democracy. We, the ordinary people, may not get this type of opportunity again.   With that in mind, we need to envision a new Barbados and extrapolating from that, devise an agenda for change.  We need to multi-task; while we are fixing the economy we should have the following on OUR agenda for change:
  
#1: Familiarization with the Constitution
 All citizens should have a good read of the constitution. Not every thing will be easily understood but many might be surprised to find out what is written there about some of the matters discussed here.  If we are going to LIVE democracy every day, we must begin with knowing our constitution. It should be mandatory reading in all schools! A link to the constitution is provided here.
 
Some constitutional changes require a two-thirds majority in the house. For this reason, the BLPs 30-0 victory is a not only a blessing in disguise it is a two-edged sword!   Even with Mr. Atherley’s ostensible “crossing of the floor”, the Government has more than enough to change critical aspects of the constitution.  That is why, in short order, Ms. Mottley can and will put through a constitutional change to accommodate the entry of Mr. Adams to the Senate!  The people must make this sword work for them by demanding the changes they want.  Gawking and talking, reacting and over-reacting will not bring about changes by themselves.  We must deliberately organize to demand changes through our representatives and/or by other means.  We are the masters, not the servants!
 
#2: Change to Proportional Representation
Citizens must now begin to debate in earnest the change to proportional representation.  At least two sessions of the People’s Business should be devoted to this issue.  CBC TV should be guided accordingly.  This should be followed by town hall meetings on the topic. The third parties should see this as an opportunity to go back to their constituencies with an urgent issue that supersedes all parochial issues. I am aware that proportional representation will have implications for the level of directness of representation of constituencies but this can be thrashed out in the process and some home grown solution worked out. The 30-0 election outcome should never again occur!
 
#3: Power of Recall
We talked about this earlier. No need for any more discussion. Let’s get on with it.
 
#4: Reduction of Parliamentary Salaries
All hands should be on deck to demand the roll back of parliamentary salaries to some acceptable level.  In lieu of this reduction, a bonus linked to performance of the economy could be paid to ministers of government every two years.  The performance should be linked to growth in GDP!  Pay for performance. Fair is fair. 
 
#5: Change in Regulations for Parliamentary Pensions
Barbadians should demand a change in the legislation regarding pensions for politicians. Such pensions should not be earned by parliamentary representatives with less than fifteen years of consecutive parliamentary service.  This is just under half of the time a civil servant must spend to be eligible for a pension!  On this there should be no compromise. It is the people’s money and therefore, any idea that this cannot be done is foolishness! Write your parliamentary representative about this as early as tomorrow.
 
#6: Demand Integrity Legislation
 
Demand that integrity legislation be passed within the current year. We have had enough talk about this and the incidence of corruption keeps increasing. THIS should be mission critical from the perspective of the electorate!  
 
Integrity legislation should not only include declaration of assets but declaration of significant debts owed by the parliamentary representative.  That’s right! If you have significant debts, e.g. gambling debt or an extravagant mortgage, especially if it either is burdensome, it is reasonable to assume that you would be more than likely to take a bribe! Whistle blower legislation built around the concepts suggested by Solutions Barbados should be incorporated into this legislation.
 
In future, a tax clearance certificate should be mandatory for all those intending to present themselves as representatives of the people. How is it that our representatives can demand that we pay taxes and have tax clearance certificates to get on with OUR business but not they themselves? How did we got to this place? By being an “absentee” electorate, that is how! 
 
Incidentally, the constitution of Barbados has something to say about the financial suitability to be a parliamentary representative.  Section 44 (1) states, inter alia:
 
No person shall be qualified to be elected as a member of the House of Assembly who….
 
(f) has been adjudged or otherwise declared bankrupt under any law in force in Barbados and has not been discharged;
 
(g) is disqualified for membership of the House of Assembly by or under any law in force in Barbados by reason of his having been convicted or reported guilty of any corrupt or illegal practice at elections;
Very interesting indeed! You should also read what is says about Senators!
 
#6: Abolish Allegiance to the British Monarchy
 
Here is how the first schedule of the constitution of Barbados begins:
 
Oath of Allegiance
I………………………. do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Her Heirs and Successors, according to law. So help me God!
 
Sounds familiar? This is what the all ministers of government swore at the ceremony on Bay Street! The time has come to do away with our allegiance to the British monarchy! More than fifty years after independence, the presence of this in our constitution is beyond ridiculous!  Moreover, given the “unroyal” behaviour of the Queen’s “Heirs and Successors” of late, it is scandalous!  Our honour as an independent people cannot be sacrificed any longer on the altar of historic sentimentality! Is not this the same country that tried to rob our family and friends (the so-called Windrush generation) of their rights as naturalized British citizens? 
 
I know we have had this conversation a long time ago; that is why we should be no longer interested in long talk! Tell this government to get it done. It has more than the two-thirds majority required, notwithstanding Mr. Atherley’s “cross over”! Guyana has done it; so also Trinidad and Tobago.  No British warships were sent to block the move and the countries have not gone up in a puff of smoke!
 
By the way, while we are at it, we should demand the abolition of the Senate. This institution is a throw back to the House of Lords, a term that we should consider anathema as an independent country! It is a waste of tax-payers money, a loophole to create ministries for unelected party members and by its structure, serves only to rubber stamp the decisions of the so-called Lower House.  If we adopt proportional representation system, the so-called Lower House should have a wide enough variety of interests represented which will obviate the need for the Senate. For a small country like Barbados the Senate is a luxury. It is time to reduce the size of government and run a lean, mean administration.
 
But, back to the point. If Britain can enter the EU and “BREXIT”, at considerable cost, we can “exit” the monarchy and its trappings at a deep discount! So when you hear the objections of the “lawyertocracy” (especially those who emigrated to and were educated in the UK) who are just waiting to be on the Queen’s New Year List of Honours, just tell them this: “Just do it!”

 

Shedding Light on the Origin of the Constitution of Barbados

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Submitted by Tee White

The origin of the constitution of Barbados is to be found in Section 5 of the Barbados Independence Act which was passed in the British parliament on 17th November 1966. Section 5, Part 1 of this Act states:

1) Her Majesty may by Order in Council, made before the appointed day, provide a constitution for Barbados to come into effect on that day. (That day refers to independence day, 30 November 1966.)

Parts 2 – 5 of section 5 of this Act go on to provide details related to the above Order in Council, including the fact that it needed to be laid before the British parliament after it had been made (Part 5).

The UK House of Commons Information Office explains that Orders in Council are a type of Statutory Instrument. These are pieces of legislation which “allow the provisions of an Act of Parliament to be subsequently brought into force or altered without Parliament having to pass a new Act. They are also referred to as secondary, delegated or subordinate legislation”. Therefore, the Barbados Independence Order 1966 was a statutory instrument designed to give effect to the Barbados Independence Act, 1966.

With regard to the writing of these instruments, the UK House of Commons Information Office states that, “Statutory Instruments are usually drafted by the legal office of the Government Department concerned, often following consultations with interested bodies and parties whilst the Statutory Instrument is in draft. They are then “made” in the name of the person (usually a Secretary of State or Minister) authorised by the parent Act”.

The Barbados Independence Order appears over the name of W.G. Agnew who appears to be Sir (William) Godfrey Agnew, who was the Clerk of the UK’s Privy Council at the time of Barbados’ Independence. The constitution of Barbados appears for the first time as a schedule to the Barbados Independence Order which was laid before the UK parliament on 22 November 1966.

Therefore, the evidence strongly suggests that the Barbados constitution was essentially the work of the British government and that the people of Barbados were excluded from taking part in framing the fundamental law of our country

A Jeff Cumberbatch Column – An Unforeseen Event

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A few people only would have accurately predicted the outcome of last Thursday’s general election that resulted in the former Opposition Barbados Labour Party romping to victory by capturing all thirty of the parliamentary seats at stake.

Among those who we may number as not having foreseen such an eventuality would have been the framers of our 1966 Constitution. Indeed, if we were to judge from the text they produced, it might be argued that, to the contrary, they contemplated that there would always be an opposition in parliament and a possible leader thereof, although that individual might not always be willing to serve in that role.

This is my assessment from a reading of the various sections of the Constitution pertinent to the issue. First, there is section 74 (1) that appears to presume the continuous existence of an Opposition in Parliament –

There shall be a Leader of the Opposition, who shall be appointed by the Governor-General by instrument under the Public Seal.

Second, section 74 (2) provides for the mode of his or her appointment, once more apparently making an identical assumption-

Whenever the Governor-General has occasion to appoint a Leader of the Opposition he shall appoint the member of the House of Assembly who, in his judgment, is best able to command the support of a majority of those members who do not support the Government, or if there is no such person, the member of that House who, in his judgment, commands the support of the largest single group of such members who are prepared to support one leader: [Emphasis added]

At least two of my learned friends, Justice Christopher Blackman in last Sunday’s issue of the Sunday Sun, and Ms Lynette Eastmond in Tuesday’s Barbados Advocate, have expressed the view that the issue is satisfactorily resolved by the provision in section 75. According to this-

During any period in which there is a vacancy in the office of Leader of the Opposition by reason of the fact that no person is both qualified in accordance with this Constitution for, and willing to accept, appointment to that office, the Governor-General shall-

(a) act in his discretion in the exercise of any function in respect of which it is provided in this Constitution that the Governor-General shall act in accordance with the advice of the Leader of the Opposition; and

(b) act on the recommendation of the Prime Minister in the exercise of any function in respect of which it is provided in this Constitution that the Governor-General shall act on the recommendation of the Prime Minister after consultation with the Leader of the Opposition…

It seems clear from a preliminary reading of this turgidly drafted section that while it is premised on the absence or non-existence of a Leader of the Opposition, that premise is not the broad one contended for by some in the present scenario, but rather is cribbed, cabined and confined by that absence or non-existence being for the express reason stated and that reason only, namely, by reason of the fact that no person is both qualified in accordance with this Constitution for, and willing to accept, appointment to that office… [Emphasis mine]

We should note that the section does not present the two elements as alternatives, in which case the draftsman would have used “or”, but rather as cumulative (“and”), thereby intending that both elements should be satisfied. Nor does it seem to import clearly that the second element (willingness to accept) is relevant only where the first element of qualification is satisfied.

It is readily conceded that the section is regrettably drafted and it is to be negatively contrasted with the much more lucid (though to different effect) provision to be found in section 83 (6) of the Trinidad & Tobago Republican Constitution of 1976-

Where the office of Leader of the Opposition is vacant, whether because there is no member of the House of Representatives so qualified for appointment or because no one qualified for appointment is willing to be appointed, or because the Leader of the Opposition has resigned his office or for any other reason, any provision in this Constitution requiring consultation with the Leader of the Opposition shall, in so far as it requires such consultation, be of no effect. [Emphasis mine]

It would appear that both of my learned friends and others have read the Barbadian provision as being identical to this one, when in fact it is not; since the T&T section requires only one of the stipulated prerequisites to be satisfied.

In the absence of a clear provision to cater to the current circumstances, the Honourable Prime Minister, Ms Mia Mottley, seemingly in agreement with the argument advanced here, has graciously indicated her preference for a constitutional amendment that would permit the party, other than that which comprises the governing administration, that captured the most votes in the election to nominate two members of the Senate, as the official Opposition would be able to in ordinary circumstances.

This amendment too will require careful drafting as it purports too alter, even if only slightly, the entitlement to Senate representation from one of the number of those first past the post to a semblance of proportional representation. I imagine, however, that she is contemplating a sunset clause to fit the current scenario. It is now up to the Democratic Labour Party to determine whether it will be aware of Greeks bearing gifts or whether it will look this gift horse intently in the mouth.

It is not an open and shut matter and will bring into sharp focus the regard of the political effectiveness of the Senate in our system of governance.

For the Claim of Sovereign Allegiance

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Submitted by nineofnine

……… do swear that I will be faithful and bare true allegiance to Her Majesty Queen Elizabeth 2, Her Heirs and Successors, according to law, so help me GOD.

I ……… being appointed Minister do swear that I will, to the best of my judgement, at all times, when so required, freely give my counsel and advice to the Governor General, or any other person for the time being, lawfully performing the functions of that office for the good management of the public affairs of Barbados and I do further swear, that I will not, on any account, at any time whatsoever, disclose the counsel, advice, opinion or vote of any particular Minister or Parliamentary Secretary, and that I will not, except with the authority of the Cabinet and to such extent as may be required, for the good management of the affairs of Barbados, directly or indirectly reveal the business or proceedings of the Cabinet, or nature or contents of any documents communicated to me as Minister or any matter coming to my knowledge in my capacity as such and that in all things, I will be a true and faithful Minister, so help me GOD.


As I sat, listened and observed the duly elected members of the newly appointed Government taking their OATHS OF OFFICE, it dawned on me a peculiarity of the oath’s content.

Three declarations were made by each member, the first, declaring allegiance, repeated twice and the third, pertaining to Ministerial Office.

As a citizen of Barbados and to my knowledge, INDEPENDENCE was declared in 1966 when the Union Jack was lowered and the National Flag of Barbados was raised as well as the official signing of Documents.

Having said that, it is of great concern and which requires an explanation to understand why, in the swearing in of duly elected members of the Cabinet, swear allegiance to Her Majesty Queen Elizabeth II, and not to the Constitution of Barbados, after 50 years of Independence.

In the recently held elections (2018), concern and grievance was raised when Commonwealth citizens were being denied by the Electoral and Boundaries Commission (EBC) to vote. The EBC stood ground. The case traversed the Law courts and eventually docked at the Caribbean Court of Justice (CCJ) which made a final judgement in favor of the Commonwealth citizens under threat to the EBC.

The Questions are…

-Why did the EBC stood ground?
-Was it a question of legality to vote?
-Is entitlement to vote, clearly defined in the regulations governing the EBC?
-Why did the CCJ upheld the legality of the Commonwealth Citizens’ right to vote?
-Did they base their judgement on the written Constitution?
-Should the Constitution be amended to favor Sovereignty?
-Are definitions conflicting?

Suffice to say, these events should have raised some strong concerns or point to Principle Considerations. It speaks to positions, that is, of the roll of the British Monarchy vs the Sovereignty of a Nations’ Independence. Is it unclear at this juncture? Should ANY lines be drawn?

We are aware that those territories still under the Union Jack are entitled to DUAL citizenship as well as a VOTE within the Commonwealth as long as they have met the requirements to vote as a CITIZEN…. BUT when a TERRITORY renounces the Commonwealth, the Sovereignty of the Nations’ Constitution becomes the adjutant of itself.

If the Constitution stills reflects the component of British subjection and omits Sovereign rights, then a civil discourse of minds must engage this rather peculiar situation to make clear the definitive principle.

The Jeff Cumberbatch Column – A Season of Constitutional Change

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Jeff Cumberbatch - New Chairman of the FTC

Jeff Cumberbatch – New Chairman of the FTC

“The greatest threat to our Constitution is our own ignorance of it…” – Jacob Roecker

“How easily men satisfy themselves that the Constitution is exactly what they wish it to be…” –Joseph Story

It would appear that the several jurisdictions in the region or, at least, some of them, have been seized simultaneously with the urge to re-examine their Constitutions and to reform these in some particular or other.

Later this week I am scheduled to participate in a panel discussion in Antigua & Barbuda on that twin state’s possible accession to the appellate jurisdiction of the Caribbean Court of Justice [CCJ]; an initiative that is to be the subject of an upcoming referendum as is constitutionally required in that jurisdiction and some others, once a delinking from the Judicial Committee of Her Majesty’s Privy Council is contemplated. It is an interesting contrast that no identical procedure was deemed necessary for that latter tribunal’s adoption at the coming into force of the Constitution.

And, as if it were irremovable from the public discourse, the notion of Barbados assuming formal de jure republican status returned last week with some force in a widely-reported panel discussion, despite an earlier and rather emphatic denial by a senior public officer, situated in the office of the Prime Minister no less, that this specific reform was not being considered currently.

On that occasion, one of the more newsworthy items, for obvious reasons -given our penchant for intrigue and the prurient-, proved to be the revelation that there had been an earlier effort to draft a “republican Constitution” for Barbados. In light of this information, most people seemed shocked that so significant a national development could have been undertaken “in secret”.

I tend to agree with the popular sentiment to some extent. While I understand, of course, that the draftsmanship of a Constitution is a technical exercise that would be best left to those who may be skilled in the area –that is, the drafting of Constitutions and not necessarily constitutional law-, the very nature of such a document demands intensive public participation in its broad outlines.

The Constitution connotes by definition that it is a document “constitutive” of the nation, and is not merely to be treated as any other piece of legislation. It is, otherwise put, a creation of the people, by the people, for the people. Hence their consent to its provisions should sedulously be sought.

I do not agree that this requirement would have been constituted (pardon the pun) by the views expressed to the admittedly wide-ranging Forde Commission. After all, to the best of my knowledge, this body was charged merely with eliciting popular opinion on general constitutional reform, as opposed to the precise elements of the form of governance that would ensue. In other words, once republican status had been considered the desired constitutional arrangement, only then what the international lawyers call the “travaux préparatoires” would have assumed pride of place through the determination of the finer points of that arrangement.

Indeed, if memory serves me correctly, the drafting of a “republican” constitution would have been precipitate in any event, since the actuality of this was officially hinged on the outcome of a referendum on a question that naysayers were to quick to seize on and to object to as insulting their “intelligence” when, as a matter of law and fact, it was the direct answer to that question that would have provided the irreducible minimum of formal republic status. Maybe that was the true reason for the re-drafting of the Constitution –simply to give those persons and their ilk additional fodder on which to vent their monarchical spleen!

I have also been made privy recently to a number of Bills that indicate the contemplation of substantial Constitutional reform in Grenada. According to the Grenada Government Gazette of February 12, 2016, these Bills, all styled Constitution of Grenada (…)(Amendment) Bills, were read for the first time in Parliament in early December last year.

They comprise (i) A Bill to restrict anyone from holding the office of Prime Minister who has held this office for three consecutive Parliamentary terms prior; (ii) A Bill to prescribe a fixed date for general elections; (iii) a Bill to ensure that there is the appointment of a Leader of the Opposition in Parliament even if, as has happened, all the members of the House of Representatives are members of the political party that forms the Government; (iv) A Bill to permit Grenada’s accession to the appellate jurisdiction of the CCJ; (v) A Bill to provide for the formal re-structuring of the Constitution; (vi) A Bill to change the name of the State from Grenada to Grenada, Carriacou and Petite Martinique; (vi) A Bill to establish an Elections and Boundaries Commission; and (vii) A Bill to refine the Chapter protecting fundamental rights and freedoms; to provide expressly for Directive Principles of State Policy; and to insert a new Chapter on Gender Equality.

These should provide ample material for legal scholars, and political and other social commentators to reflect on. I am especially provoked by the last Bill mentioned above that seeks, inter alia, to increase the kinds of conduct that would constitute discrimination, by adding to the traditionally proscribed grounds, those relating to disability, ethnicity, language and social class; to guarantee the right of a child to education; to require the state to aim at enhancing the supply of food, water and health facilities; and to domesticate relevant treaties.

In this existing climate of formal constitutional change in the region however, it is imperative that citizens become more familiar with the workings of the relevant document. I have often expressed my intrigue in this space at some of the assertions, not all populist or lay, as to what may be contained in the Constitution and what conduct may be contrary to its provisions.

We have had the Bar Association finding therein an express right to work; and relatively recent assertions that it would be unconstitutional for the police to arrest someone on suspicion of him or her being about to commit an offence; that the conferral of a knighthood is included in the Constitution; that the choice of Opposition leader is restricted to members of one political party; that the Attorney General must be a member of the Lower House; and that the Prime Minister may be removed by a simple majority of members of the House that support the government advising the Governor-General of their change of heart. These are all, if nothing else, mythical.

The Barbados Constitution

Is The Budget Process Illegal

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Submitted by GoWEB Caribbean (written by Caswell Franklyn)


Caswell Franklyn - Head of Unity Workers Union

Under normal circumstances when Government wants to change a law; a bill is laid, debated and passed in the House of Assembly. The process is repeated in the Senate, and then it is signed into law by the Governor-General.

However, when Government wants to raise revenue it can do so, without passing the necessary law, by introducing budgetary proposals to levy a new tax or raise an existing tax in accordance with the Provisional Collection of Taxes Act, Chapter 85 of the Laws of Barbados. That Act defines “budgetary proposals” as any proposal made to the House of Assembly by or on behalf of the Minister responsible for Finance for the purpose of raising revenue to meet public expenditure. It then states “tax” includes all assessments, charges, duties, fees, rates, impositions and other levies (however called) the proceeds of which are payable into the Consolidated Fund as part of the revenues of Barbados.

It is clear from the Act that the Minister can only use that piece of legislation to raise revenue that is paid into the Consolidated Fund. For all intents and purposes the Consolidated Fund is the Treasury. He cannot therefore use a budget to decrease a tax or raise bus fares which are paid to the Transport Board.

After the Minister has used the device of budgetary proposals to raise or introduce a new tax, section 3(2) of the Act declares that the tax ceases to be payable if the appropriate enactment is not passed within four months of the date on which the budgetary proposals are made to the House of Assembly. In these circumstances, the tax shall be refunded to whoever paid it in accordance with section 5.

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