EDITORIAL: Constitutional amendment
One consequence of the recent general election is that with the absence of a traditional, and not merely formal, opposition voice, debate on legislation in the Lower House is unlikely to benefit from the rigorous critical analysis that would otherwise obtain were there an organized Opposition assisted by legal, economic and other advisory support. The recently passed Constitution Amendment Act 2018 provides a case in point.
The Act purports to achieve three objectives, to revise the qualifications for membership of the Senate; to revise the provisions relating to disqualification for membership of the Senate and the Assembly (sic); and to revise the provision relating to vacancies in the office in Leader of the Opposition.
We should remark that we are by no means adherents to an “originalist” perspective of the Constitution that would regard this document as immutable, its meaning fixed for all time. We prefer rather to regard that document as a living tree, to be pruned when necessary and to be interpreted in accordance with modern realities.
To this end, we are prepared to accept the new administration’s rationales offered to the first two revisions noted above for at least two reasons. First, we believe that in the interest of good governance any government should have the right to select those whom it perceives will assist it in achieving a more effective administration -a political droit du seigneur if you will. Second, the notion that a native Barbadian should be precluded from serving his or her country in a senatorial or ministerial capacity merely because they have not been resident in the jurisdiction for the past twelve months rings discordant in a locality that recently accorded with much ado the right of franchise to qualified resident non-nationals of Commonwealth citizenship.
It would have been of interest to hear however, the justification of the framers for the insertion of the original provision in its entrenched form, but we ascribe this to it then being then a less globalized era when the idea of the international citizen was more a figment of the imagination than an actuality. The second revision might also fall into a similar category, although we can see no substantial harm in having the individual first renounce their allegiance, obedience and adherence to the foreign power before becoming a member of the local legislature, a provision that finds similar expression in many other Constitutions.
It is with the last revision however, that we have most worry. The Constitution does not clearly provide for the circumstance that occurred after the general election, given the unfortunate drafting of our section 75. We were of the view that it was owing to this lack of clarity that the government had proposed permitting he Governor General to name two Senators from the party that had secured the second highest number of votes in the election.
However, we observe with interest that in the draft Bill, the comparatively unclear language of section 75 is retained, thus removing the need for any amendment in that regard. This revision, as currently drafted, also effects two other matters worthy of note. First, it introduces the notion of parties into a Constitution that speaks to individual members only, a matter therefore requiring further textual amendment. And second, it would effectively remove a power expressly conferred on the Governor General hitherto or, alternatively viewed, impose a fetter on her discretion as to whom she should select as Opposition Senators.
We trust that these matters were adverted to in the course of parliamentary debate.