Musings: A Barbadian miscellany I

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 de 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…