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    September 24

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ALBERT BRANDFORD: Bring home the Constitution

Albert Brandford, albertbrandford@nationnews.com

Added 23 August 2015

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PLANS ARE IN MOTION for Barbadians to observe the 50th anniversary of independence on November 30, 2016, with a series of exercises highlighted by a change in governance from constitutional monarchy to republic.

It is also being suggested we take the next logical step and bring home the Constitution which remains an enactment of the British Parliament. It is not new as there have been two constitutional review commissions over the past three decades which have made the recommendation to successive Governments.

But politicians and constitutional experts have insisted that while patriation of the Constitution is a desirable evolutionary step it must perforce seek validity through engagement with the people and not merely a facile amendment.

In context, the Barbados Constitution was provided by way of a Schedule to the Barbados Independence Order (S.I. 1966 No. 1455(UK)) and the Order itself was made by Her Majesty-in-Council, pursuant to the Barbados Independence Act, 1966, an Act  of the United Kingdom Parliament, the  legal power.

However, it is argued in the report of the Constitution Review Commission (1998), also referred to as the Forde Commission since it was chaired by former Attorney General Sir Henry Forde, that “the legal power to amend the Barbados Constitution firmly resides in the Parliament of Barbados”.

“In theory, however, it is still technically possible for the British Parliament to repeal the Barbados Independence Act which granted Her Majesty-in-Council the power to make the Barbados Independence Order,” the report adds.

“This may never happen. To the extent that such legal power remains theoretically possible, it is our view that this detracts from the people’s belief in their national identity and sovereignty.

“The patriation of the Barbados Constitution is both an emotional and a legal issue. In relation to the first issue, the people of Barbados in their submissions to us made clear their deep feeling that our Supreme Law has to be, in every sense of the word, indigenous and autonomous.

“There is undoubted consensus that the Constitution should be a product of the Barbados Parliament and completely Barbadian.

“This would rid our Supreme and Basic Law of any trace of the colonial format, remove any possible judicial or theoretical doubt about the power of the British Parliament to legislate further in relation to the Barbados Constitution and clearly signal that we are in all respects ‘firm craftsmen of our fate’.”

Sir Frederick Smith, first Attorney General of independent Barbados, dismissed repatriation as “merely a matter of pride”.

“At present, the Barbados Constitution is a schedule to a UK Order-in-Council, made under a UK Act of Parliament and, of course, it is effective,” he said.

“Canada did repatriate its constitution from the UK and again, it was a matter of pride and an attempted show of complete independence. If then, our Constitution can be repatriated and made an Act of the local legislature it does not matter to me, as my pride and patriotism does not spring from acts of Parliament, but from being fortunate to be born a Barbadian.”

Another former Attorney General, Mia Mottley did not believe that the simple act of repatriation of the Constitution “will make it our own”.

“And I believe that the consultative process first embarked on by the Constitutional Review Commission, all over Barbados and the Barbadians within the diaspora, is the first step,” she said.

“We must go even further in our engagement with the public of this country, recognising that those things which will constitute a Constitution, the plan which must reflect the way of life of our people has truly to be a deliberate act of the people of this country.”

Late UWI law professor, Simeon McIntosh, suggested the reenactment of the Constitution by our Parliament, following a series of public hearings, “might not suffice to serve the democratic ideal constitutional founding and to remove the stigma from the Constitution as being another legislative enactment”.

“However, in order to overcome the problem of the characterisation or perception of the Constitution as a legislative enactment, rather than a constituent act of the people constituting a separate and superior authority to that of Parliament, we may conceive of Parliament as a specially elected constituent assembly when it sits to ‘enact’ or ‘reenact’ the fundamental law,” he said.

“In other words, in that moment of constitutional creation or revision, Parliament is transformed from an ordinary legislative assembly into a national constituent assembly, acting in the name of the sovereign people and engaged in the extraordinary political act of founding or reforming”.

Albert Brandford is an independent political correspondent. Email albertbrandford@nationnews.com

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