EDITORIAL: Dispensing with constitutional niceties
As any constitutional lawyer worth his or her salt should affirm, the constitution of a state does not comprise merely the text of the written document that styles itself as the supreme law of the land and deems all other laws inconsistent with its provisions void to the extent of their inconsistency. It also contains certain conventions or traditions that while not having the force of express provision, are nevertheless perceived as integral to the functioning of the state as conceived by the founding fathers.
Of course, as with all implied provisions in law, these cannot ordinarily trump an express provision on the simple basis that the presence of the express provision demonstrates that the matter was actually determined by the drafters, and thus there is no room left for implication.
Some recent events in the UK, locally and regionally do serve to test these principles, although in one case only has it been held that the provision of the constitution was effectively shaped by a convention of significant status. This was in the recent UK Supreme Court decision where it was held that Prime Minister Boris Johnson’s attempted prorogation of Parliament was unlawful, although the largely unwritten British constitution traditionally allocated the power of advising such prorogation to the Monarch to the Prime Minister exclusively. It was unlawful because it had the effect, according to Lady Hale, “…of frustrating or preventing the constitutional role of Parliament in holding the government to account”.
The clear solution where the express provision of the constitution thwarts a desired solution is to change the text of the document as the current governing administration has done in a number of instances; one such being that to facilitate the appointments of two of its senators and, as Professor Pedro Welch has recently proposed in respect of the membership of the lower House, whereby some place would be found for a member of the party that gains the second highest percentage of the popular vote.
Although some may want to characterize this suggestion as special pleading, given the notorious results of the last general election, the meatier point is that any such scenario has to be effected by constitutional amendment since it runs counter to both the existing express and conventional provisions of our supreme law.
Only yesterday, we read of two other matters that might impact on Constitutional convention. The first is the report in the Saturday Barbados Advocate that the Premier of Bermuda proposes to scrap the traditional Throne Speech that heralds the opening of a parliamentary session, “so that the government’s legislative agenda can and should continue without the interruption of the traditional convening of the legislature”.
Given that this seems a mere formality and therefore should not be viewed as proscribing any function integral to a parliamentary democracy, it is at least doubtful whether it may be deemed unconstitutional.
The second relates to a post currently circulating on social media that questions the constitutional propriety of Senator Alphea Wiggins accepting the assignment of government envoy to Suriname while remaining an “independent “ senator.
The truth is that the notion of an independent Senator is perhaps more a figment of popular expression than a constitutional reality. The so-called “independent” senators in law refer to the seven individuals appointed to that Chamber by the Governor General under section 36 (4) of the Constitution. Is it that there is now being urged a convention to the effect that such senators shall not accept governmental appointments? And does the acceptance of this posting now tilt or appear to tilt the scarcely delicate balance of senatorial oversight of the lower House?