Editorial: A constitutional “crisis” and its solution

A constitutional “crisis” and it“…[t]here is no dispute on the importance of a parliamentary opposition. It has been generally accepted that the role of the opposition is to scrutinise, appraise and criticise effectively the policies and administration of the f government and to hold the government responsible to the electorate…” – JK Roberts, NOW Grenada (April 4, 2018)

We might have come close before; we recall there was a twenty-six seats to two victory for the Barbados Labour Party [BLP] in the 199 general election after the Democratic Labour Party [DLP] had effected a twenty four to three triumph in the 1986 elections. On last Friday morning however, the incoming BLP administration registered an historic thirty seats to none devastation of the then incumbent DLP. That the electorate spoke so clearly should provide a teaching moment or two especially for the DLP, but an even more important issue is that the margin of victory has created a constitutional twist by the non-existence of a parliamentary opposition.

As is the case in most jurisdictions, the founding fathers of Barbados did not appear to contemplate this eventuality and while the Constitution in section 74 expressly provides for the existence of the office of Leader of the Opposition and for the mode of his or her appointment as follows-

“There shall be a Leader of the Opposition, who shall be appointed by the Governor-General by instrument under the Public Seal”,
it makes no express provision for the circumstance where there is no group of members of the House of Assembly who do not support the Government as occurred in the recent general election.

In such a situation, however, the constitutional text appears to insist on the functions of Leader of the Opposition still being exercised, albeit vicariously by the Governor General. 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…”

In effect then, the Governor General assumes, at least in substance, the role of Leader of the Opposition. This will have immediate consequence for the Senate whereby the Governor General will now appoint at least nine (9) members of the of the Senate; seven (7) in her own discretion to represent various specified interests as stipulated in section 36 (4) and its proviso, and the two ordinarily appointed by her on the advice of the Leader of the Opposition by instrument under the Public Seal (s. 36(3)).

There is no express provision as to what should happen in the House of Assembly, however. The incoming administration has been conferred with the constitutional authority to alter the Constitution and we have already commenced making some suggestions in that regard to ensure better governance, including proportional representation.

In the likely absence of a dissenting voice in the Lower House as currently constituted, given our political culture, we would urge the Honourable Prime Minister and her new Cabinet to consider the establishment of a non-binding consultative assembly to consider impending policy legislative changes. Our ethic of governance contemplates a two party system and while it is entirely possible under a first-past-the-post system of election as currently obtains for a result such as Friday’s to eventuate, we should also take care to avoid the phenomenon of an elected dictatorship.