Editorial: A failed legislative attempt

The inability of the current governing administration, owing to the defeat of the Bill in the Senate last week to effect the proposed amendment to the Constitution that would have, inter alia, deleted the provision in section 15, which authorises the mandatory imposition of the sentence of death for the offence of murder and redefined the exercise, by the Governor General, of the prerogative of mercy in section 78, provides a number of cautionary tales in governance for students of civics and, not least, for the administration itself.

First, it should not be presumed that its overwhelming majority in the Lower House guarantees government the right to alter the entrenched clauses in the Constitution. This requires a two-thirds majority in both Chambers of Parliament and not merely in the Lower House. And even though there is a stipulated plurality of the governing administration’s members in the Senate, it still requires that, at a minimum, two other members of that twenty-one-seat chamber vote with the government in order to attain the required majority.

Second, being aware of this, it behoved the legal advisers of the administration to have been mindful of any pitfall, such as a probable deficiency in numbers, likely to imperil safe passage of the Bill.

What seems to have primarily caused the defeat of the Bill last week was the argument by one of the Senators appointed by the Governor General under section 36 (4) of the Constitution. We say “primarily” because the front-page story in The Barbados Advocate last Thursday treated the issue of one Opposition Senator criticising the Caribbean Court of Justice [CCJ] for having “made itself into a legislating court”. In this connection, it should be recalled that it was the CCJ that had adjudged the mandatory death penalty to be unconstitutional and suggested its removal.

Senator Boyce objected, however, to the proposed amendment as removing a measure of protection for human life by its requirement that the condemned man is now obliged to make a submission to the Governor General or to the local Privy Council in order to have the prerogative of mercy exercised in his favour. This, he found, to be a derogation from the current law which requires the Governor General to act once a death sentence has been pronounced. He proposed instead that the Senate should further amend the Bill to provide for action by the Governor General with regard to the prerogative of mercy once a sentence of death has been pronounced.

According to the existing provision-

Where any person has been sentenced to death for an offence against the law of Barbados, the Governor-General shall cause a written report of the case from the trial judge, together with such other information derived from the record of the case or elsewhere as the Governor-General may require, to be forwarded to the Privy Council so that the Privy Council may advise him on the exercise of the powers conferred on him by subsection (1) in relation to that person.

Notably, the Constitution also now provides for the convicted person himself to make a submission to the Privy Council – see section 78 (5).
It would thus have been in the nation’s best interest for the Senate to accede to the Boyce amendment that, in our view, does not fundamentally alter the intendment of the legislation under debate.

Unfortunately, thereafter, according to one report, the matter appears to have descended into partisan politics, with the Leader of Government Business objecting to the amendment proposed by Senator Boyce on the ground that the impugned provision in the Bill had also been proposed by the previous DLP administration.
The Constitution remains unchanged.