Submission 15
Sent: Monday, February 6, 2023
To: ConstitutionalReform
Subject: Submission to the Constitutional Reform Commission
I attach a submission to the Constitutional Reform Commission.
Submission to the 2022 Constitutional Reform Commission
6th February 2023
I submit the following suggestions to the Constitutional Reform Commission for their consideration.
I. Preamble
1. The Preamble should contain a brief summary of the values that Barbadians cherish in their constitutional arrangements. It should be a mirror image of ourselves. There is much material for the Preamble that can be drawn from the Charter of Barbados 2021.
II. Directive Clauses
2. In addition to the Preamble, many modern Constitutions contain what are ‘directive clauses’. These are provisions that are not justiciable, that is, enforceable in a court, but are intended to encapsulate the deeply held beliefs of the citizens of a country. They are not binding on the state in a legal-juridical sense but are binding in a political and moral sense.
3. For example, the Constitution of India states in one part that: ‘The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.’
4. If our new constitution is truly to reflect who we are as Barbadians, then it should contain directive provisions that reflect our aspirations and values.
5. To illustrate, an important aspect of our historical development is the revaluation of our national identity through continued decolonisation (which is not a one-off act but a continuous process). So our new constitution should pledge to seek reparatory justice for the crime against humanity that was the enslavement of our ancestors, as well as pledge to continue rescuing their cultural heritage from the repression and neglect it was subjected to in the colonial era.
6. Similarly, it’s essential to reaffirm in our constitution the protection of our beautiful and fragile island environment and our commitment to sustainable
development. Again, this should be directive rather than justiciable.
III. Socio-Economic Rights
7. We should expand the fundamental political and civil rights to include socioeconomic rights, whether justiciable or directive, such as a right of access to clean water, nutritious food, affordable housing, and health care.
IV. Grounds on which it is unlawful to discriminate
8. We should expand the grounds on which it’s unlawful to discriminate against a person to include sexual orientation and ability/disability. Democracy is not only about letting the majority opinion prevail but also about protecting the rights of minorities.
V. Fundamental purposes of government
9. We should set out in the constitution a comprehensive statement of the fundamental purposes of government, namely, ‘to safeguard the dignity inherent in every person, protect human rights, ensure sustainable and equitable economic development, promote the common good, and protect the environment. In accomplishing these ends, government must act with transparency and accountability.’
VI. Head of State
10. We should keep our present head of state as a non-executive or ceremonial post and retain the present procedure of having two-thirds of parliament elect the head of state. Some have suggested that we have an executive head of state in addition to an executive head of government (prime minister) as, for example, obtains in some countries, such as France.
11. Having two executive heads in Barbados would embroil us in turmoil and chaos, shattering our long-held reputation for political stability. Besides, it’s important to have a head of state that would be above the political fray and who would symbolise the best of the Barbadian nation.
12. Some might suggest, however, that we elect the non-executive president by popular vote. If the president were elected by popular vote, she would, by definition, be a politician. We are blessed with many citizens who would serve with distinction as president but would be reluctant to campaign for the job.
13. It’s vital that a ceremonial head of state be above politics, even if he or she is a retired politician. Moreover, election by popular vote would give incumbents the delusion that they have an independent political base. That would almost certainly lead to constitutional crises.
14. In addition, it is essential that her duties be carefully set out and circumscribed so that she has merely a symbolic and civic role. Moreover, she should be appointed for a fixed period of time: five years, subject to renewal by two-thirds of the parliament. There should be a mechanism for her removal from office, in the event that she attempts to exceed her prescribed responsibilities or for whatever reason.
VII. Strengthening Democracy
15. The priority for constitutional reform in Barbados is the strengthening of democracy.
16. Democracy is fragile because it requires for its successful functioning a balance between two competing forces: state and society. On the one hand, you need a strong, stable, well-organised state that can protect the rights of its citizens and enforce the law. On the other hand, you need mechanisms or procedures by which a citizenry can keep that state in check by holding the incumbents of state office continuously accountable. In other words, accountability cannot be restricted to voting every five years.
17. The balance between these forces must be kept. Too powerful a state leads to tyranny; too powerful a society leads to anarchy. Anarchy, in turn, leads to tyranny: a vicious circle. This issue is sometimes framed as direct versus representative democracy. The value of representative democracy is it allows elected representatives to discuss and debate a complex issue with the help of expert advice. The value of direct democracy is that it allows the people to have a direct say on an issue that effects them eg by referendum or special initiatives. But let’s be careful: democracy by social media would be an unmitigated disaster. The right mix is essential.
18. Government by mandatory referendum may seem appealing but it can lead to emotional decisions being taken on complex issues. For example, the complex issue of BREXIT or British withdrawal from the EU was decided by mandatory referendum with disastrous results. We in Barbados have been lucky. With all its flaws, our political system has resulted in a stable and peaceful succession in office through free and fair elections of the two main political parties for almost seventy years. But we should not take it for granted.
19. We now have an opportunity to strengthen that democracy constitutionally. The Westminster system we inherited from the British places great power in the hands of the prime minister. In order to prevent possible abuses of power by the holder of that office, the solution is not to create a new source of countervailing executive power but to strengthen (a) the functions of parliament, (b) the participation of citizens in the ongoing governance of the country, and (c) the accountability of the executive. One measure to curb the power of the executive is to take away from the office the authority to call an election when the prime minister wishes. Instead, general elections in Barbados should have fixed five-year limits. As for term limits for the prime minister, this strikes me as politically unwise. If we have an effective leader why should we be compelled to remove him automatically and replace him with an unknown quantity or less talented person?
20. The Legislature One of the most effective ways of limiting the powers of the executive is to strengthen the powers of the legislature. I suggest we change to a unicameral legislature. The Senate is a neo-colonial anachronism that serves no purpose other than to groom political hopefuls for elected office or to provide a sinecure for those who failed to win a seat in the House or those who need to be otherwise placated.
21. The traditional argument for two legislative chambers is that an upper chamber acts as a brake on legislation proposed by the popularly elected representatives. The assumption is that the latter (aptly named the ‘Commons’ in the UK) will take rash decisions that need to be tempered by the unelected (aptly named the ‘Lords’ in the UK). I think we have passed beyond such ridiculous class snobbery.
22. Of the 193 parliaments in the world 113 are unicameral and 79 are bi-cameral.
23. I suggest our unicameral parliament have 45 seats, 30 to be elected and 15 to represent agreed community interests proposed by an enlarged Social Partnership and confirmed by the president on a three-year rotation. The non-elected members of parliament would have the right to speak but not to vote. Only those who have faced the electorate should have the right to vote on legislation. Such representation from civil society in the parliament would facilitate scrutiny of and input into proposed legislation before it becomes law.
24. One mechanism to enhance parliament’s oversight of the executive would be to limit the size of the cabinet to one-third of the members of parliament.
25. Another would be to allow a prime minister to appoint at least one half of the Cabinet from outside the legislature entirely but with the proviso that those so chosen must be approved by a majority of the parliament. This would allow the prime minister to make more choices on the basis of relevant qualifications, skills and experience. At the same time, requiring parliamentary approval would limit nepotism and cronyism.
26. We should have a proper committee system (including non-elected MPs) that would oversee various aspects of the operation of the executive including the public service, especially on matters related to transparency and accountability in expenditure. A unicameral Parliament should meet twice a week with one session devoted entirely to committee business.
27. Electoral System Barbados uses what is known as the ‘first-past-the-post’ system (FPP). Sixty-four countries use FPP, notably Britain and most of its former colonies.
28. One of the fortunate by-products of this system in Barbados has been the development of a strong two-party system, the bedrock of our legendary political stability, with two historically popular parties alternating in office since the 1950s.
29. The shortcoming of this system, however, is that the number of seats won by a party usually does not coincide with the percentage of the popular vote, leaving many voters effectively disenfranchised. In fact, New Zealand changed its system when in one election in the 1990s the party that won most of the seats did not win most of the popular vote but nevertheless went on to form the government.
30. The usual alternative to FPP is proportional representation (PR), used by some ninety countries. Basically, under this system a party that wins 50 per cent of the popular vote gets more or less 50 per cent of the seats. The major drawback of PR is that it can often lead to minuscule parties with little or no grassroots support winning seats in parliament, resulting in unstable coalition governments and legislative gridlock. Another drawback is you don’t have constituency representatives. In Barbados, constituency representation has been an essential part of popular accountability and must be retained.
31. But there is a sensible alternative to these two extremes. This is the Mixed Member Proportional System (MMP). It’s used by Germany and New Zealand among several other countries.
32. Under MMP, each voter casts two ballots: one for their constituency representative (FPP) and one for their party of choice (PR). This system ensures that people have representatives of their specific geographical constituency who can address their local concerns, while, at the same time, the parties have seats that represent their share of the popular vote.
33. Citizen participation in governance Strengthening democracy requires ongoing citizen participation in government. It’s simply not enough to cast a ballot every five years. We have an educated and sophisticated civil society that teems with smart ideas for making this country better. It's folly not to create mechanisms to capture this input on an ongoing basis. Modern technology also greatly facilitates online public participation of all kinds. All that is required is our imagination.
34. Peoples’ Initiative One mechanism would be a Peoples’ Initiative. The Initiative would allow registered voters in Barbados to initiate legislative measures, including amendments to the Constitution. These measures, if supported by a significant number of the electorate in a petition, would then be put on the ballot, and, if approved by a majority of registered electors, would be submitted to Parliament for appropriate action. Peoples’ initiatives, or citizens’ initiatives as they are also called, are now widely used across the world. This Initiative was recommended unanimously by the Forde 1996-98 Constitutional Commission. Subsequently in 2015, a group of Barbadians comprising Ian Archer, Sir Stephen Emtage, Sir Henry Forde, Patrick Frost, Peter Laurie, Teresa Marshall, and Sir Woodville Marshall, lobbied widely for the initiative and presented to the then prime minister and leader of the opposition a proposal as to how it should work in Barbados. That proposal is presented as an appendix to this submission.
35. It would also be helpful to mention the role of the Social Partnership in the reformed constitution, as this institution has proved to be a useful mechanism for citizen participation in governance.
36. Accountability Holding public officials to account lies at the heart of democracy. Democratic accountability offers citizens several mechanisms to voice concerns and demand explanations about, and, if need be, impose consequences for the performance of elected and unelected officials. Both the legislature and the judiciary reinforce accountability. Democratic accountability entails the public’s right to obtain information on the organisation, functioning and decision-making processes of public administration. In a UN survey conducted in 2015, people voted for ‘an honest and responsive government’ as the fourth most important priority after education, health care, and employment.
37. One accountability and anti-corruption mechanism would be to insert in the reformed constitution a provision requiring senior public officials (both politicians and bureaucrats) to make periodic declarations of assets.
VIII Conclusion
38. I have emphasised strengthening democratic governance in this submission because I believe this is the most important aspect of Bajan constitutional reform. It’s also the foundation on which everything else stands.
39. Democratic governance is the application of democratic principles to the nation state. These principles include the right of the people to elect their representatives in free and fair elections; the right to freedom of expression and assembly; the rule of law; and the protection of fundamental human rights and freedoms. Democracy is a universal human aspiration, but it comes in multiple forms that are in constant evolution. There is thus no single and universally applicable model of democracy. No existing democracy is without flaws and is thus always open to improvement. There is no definitive and final state of democracy. Democracy is fragile and perishable and has to be sought and created afresh by each new generation.
40. Strengthening the principles and mechanisms of democracy in our Constitution is thus essential.
Appendix
Proposal for a Law Establishing a People’s Initiative
I. Introduction
1.After almost fifty years of independence, many Barbadians believe that our system of governance, which has served us well over the years, now needs reforming so as to strengthen our democracy in several respects: the electoral system, campaign finance, and parliamentary procedures among
others.
2. One of the proposals for reform is the introduction of an instrument for a People’s Initiative, as recommended by the 1996-98 Constitution Review Commission, for the purposes of "encouraging a wider and deeper participation by the citizens of Barbados in the democratic processes of government, both at the parliamentary and other levels”.
3. The Commission had recommended specifically that “Government should introduce into Parliament legislation creating a system of 'People's Initiatives' designed to accord to electors a measure of original law-making power without bypassing or distorting the fundamental authority of Parliament in this domain”.
II. What is a People’s Initiative?
4. The people’s initiative instrument allows registered voters to initiate a vote of the electorate on a legislative proposal put forward by those voters. The proposal may, for example, call for an amendment to the constitution, the repeal or amendment of an existing law, or require the legislature to adopt an entirely new law.
5. Depending on the design of the initiative process, if the ballot measure is passed by voters, it is usually referred to the legislature for appropriate action.
6. The initiative process originated in Switzerland in the 19th century.
7. As of 2015, twenty-two countries in Europe have adopted some form of the people’s initiative at the national level. In addition, the European Union has implemented the European Citizens’ Initiative. In Latin America, thirteen countries have a people’s initiative; in Asia-Pacific, five countries; In Africa, eight countries, and in North America, the Canadian province of British Columbia has an initiative, and twenty-seven states in the United States have some form of an initiative. No country in the Caribbean has yet adopted such a legislative procedure.
III. Why do we need a People’s Initiative in Barbados?
Pros
8. In a democracy the power to legislate ultimately resides with the people. In a representative democracy, like Barbados, the people delegate that power to members of their legislature.
9. People’s Initiative instruments are designed to provide additional channels of political expression and participation beyond those that are available through representative institutions alone. They emphasise the people’s ability to articulate their opinions, and the openness of the democratic system, by providing them with an opportunity to help shape the laws and constitution under which they live.
10. Moreover, the opportunity to initiate legislation encourages people to take a keener interest in the political process and become more actively engaged in public life, since they feel they have greater ‘ownership’ of the process. In places where the initiative is part of the political process, studies suggest there is usually a heavier turn out of voters at a general election, because of their interest in one or more initiatives on the ballot. People also tend to use the initiative to draw their elected representatives’ attention to issues of concern to them.
11. Finally, the data shows that in those countries with an initiative process the elected representatives of the people tend to be far more responsive to the people’s wishes. It also promotes transparency and accountability.
Cons
12. One often cited disadvantage of citizens’ initiatives is that they result in badly drafted law, since the wording of the measure as initially proposed ends up as statute if the measure is passed. This would not happen in the case of the initiative that is being proposed for Barbados, since, if it is approved by ballot, it is then passed to Parliament to go through the appropriate legislative drafting procedures.
13. Another criticism of citizens’ initiatives is that they are only really accessible to well-resourced organisations and interests, and that the process is therefore hijacked by special interest groups promoting their own interests. Once again, the initiative being proposed for Barbados would safeguard against that. (See Recommendations 8, 9 and 12 below).
14. Finally, a common criticism of citizens’ initiatives (and other forms of direct democracy) is that they enable the "tyranny of the majority." This refers to the electoral power of majority groups in society being used to restrict or hinder the rights of unpopular minority groups. Critics argue that without the moderating influence of the legislature, legislation may be passed which actively targets the rights of groups within society which are unpopular. But this would not apply to Barbados since all proposals (a) have to be consistent with the Constitution, especially the provisions protecting the fundamental rights and freedoms of the individual, and, (b) if approved by the electorate, are passed to Parliament for appropriate action.
Finally
15. The initiative that is being proposed for Barbados is a sensible compromise between representative democracy and direct democracy, in that it gives elected representatives the opportunity to deliberate over proposed legislation, while at the same time giving the citizens the opportunity to initiate such legislation. Barbados would be the first country in the Caribbean to adopt such a legislative procedure.
16. If this initiative is coupled eventually with other reforms that seek to make government more accountable and transparent, this should lead to Barbados becoming one of the most vibrant democracies in the world.
17. A vibrant democracy, coupled with transparency and stability, in turn should entail significant economic benefits for Barbados, especially foreign investment and tourism.
IV. Proposed Principal Provisions of the Law Establishing a People’s Initiative
a) Persons Qualified to Propose an Initiative
18. The simplest qualification would be to stipulate that only registered voters may propose an initiative. In an attempt to eliminate totally frivolous proposals it is suggested that at least ten registered voters are required to apply to propose an initiative.
19. Recommendation 1: The Proposal of an initiative must be supported by at least ten (10) registered voters.
b) Application to Propose an Initiative
20. Most jurisdictions have the electoral office administering the initiative. This makes sense.
21. Recommendation 2: The Barbados Electoral and Boundaries Commission should be the designated agency to oversee the initiative process, with the Chief Electoral Officer being the person to whom an application is to be made. The application would consist of the completed application form signed by at least ten (10) registered voters, a simply worded Proposal for legislation and a non-refundable fee.
c) Fee
22. There is usually a fee charged for making an application for an initiative. The fee is intended to cover basic administrative costs.
23. Recommendation 3: The fee for processing the application should be $500.
d) Initiative Proposal
24. There are usually restrictions of various kinds on the issues that may be included in a proposal: the most common are not being in breach of the constitution, and not dealing with taxation. Extended lists of excluded issues are not helpful as these often include issues of critical importance for social improvement and development..
Recommendation 4: The Proposal:
25. (a) should be simply and clearly worded;
26. (b) should not be in breach of the Constitution of Barbados, but may include proposals to change the said Constitution, although not to remove any provisions relating to the protection of the fundamental rights and freedoms of the individual; (c) should not seek to impose any taxes.
e) Approval of Application
27. Recommendation 5: The Chief Electoral Officer shall approve the application within twentyone (21) days provided he is satisfied that the Proposal meets all the requirements of the Law establishing the system of People’s Initiatives. In approving the application the Chief Electoral Officer may seek the advice of his legal advisors.
28. Within twenty-one (21) days of approving the application the Chief Electoral Officer shall submit for publication in the Official Gazette a notice of certification of the application and shall, at the same time, publish the notice of certification in the media in Barbados.
f) The Petition
29. It is the electoral office that usually issues the prescribed petition sheets on which the required signatures are collected.
30. Recommendation 6: The applicants shall obtain the prescribed petition sheets from the office of the Electoral and Boundaries Commission. Each petition sheet shall have the certification of the Proposal as well as the Proposal itself.
g) Number of Signatures Required and Time Allowed for Gathering Them
31. This varies. Some jurisdictions set it as a percentage of the electorate (anywhere from 0.1% to 20%) and others as an absolute figure. Lower thresholds are more user-friendly and attract more active participation by citizens. This trend is seen in countries that have signature requirements not higher than 5 % of registered electors. In countries requiring the signatures of more than 10% to 15% of the electorate, hardly any initiative activity can be observed, suggesting that a lower signature requirement may be preferred if public participation is to be encouraged. In addition, high signature thresholds tend to favour large organisations and corporations.
32. The time period (varies from 3 weeks to 1 year) is important to allow for information to be distributed, opinions on the issue disseminated and a process of public deliberation started.
33. Recommendation 7: For a Proposal to be placed on the ballot the proponents must:
(i) obtain at least 2,500 valid signatures of registered electors (along with the names of the signatories in capital letters and their National Registration Numbers);
(ii) ensure that at least thirty (30) of the 2,500 registered electors are from each constituency; and,
(iii) submit the petition sheets with the signatures to the Chief Electoral Officer within six (6) months of the date of receipt of the prescribed petition sheets from the office of the Electoral and Boundaries Commission.
h) Canvassing for Signatures
34. Several jurisdictions place restrictions on canvassers including that they must be registered electors and must not be paid, directly or indirectly.
Recommendation 8:
35. The proponents may be assisted by canvassers to gather signatures for the Proposal. Canvassers must be registered electors, authorised in writing by the proponents, and certified as canvassers and issued with appropriate identification by the Chief Electoral Officer.
Recommendation 9:
36. A person must not, directly or indirectly, accept any payment for canvassing for signatures on an initiative petition. Nor shall a person, directly or indirectly, pay, give, lend or procure any remuneration for a person who canvasses for signatures on an initiative petition.
i) Verification of Signatures
37. Recommendation 10: When all the signed petition sheets have been submitted, the Chief Electoral Officer shall have thirty (30) days to verify that enough valid signatures have been collected and that the requirements set out in the Law establishing the People’s Initiative have been satisfied.
38. If, in the process of verification, some signatures are found to be invalid and, as a result, the total number of signatures falls short of the required number, the Chief Electoral Officer shall allow the proponents of the petition an additional fifteen (15) day period to make up the shortfall.
j) Placing the Proposal on the Ballot
Recommendation 11:
39. (i) Proposals may be voted on either at a general election or in a special ballot, provided the petition sheets with the required number of valid signatures have been submitted to the Chief Electoral Officer at least sixty (60) days before the date of the general election or the proposed date of the special ballot as the case may be.
40. (ii) A special ballot may be held not earlier than two and a half (2.5) years after a general election, and it may only take place if the proponents submit a request, in writing, to the Chief Electoral Officer. Such written request shall be submitted at the same time as the Proposal is submitted in accordance with the Law establishing the People’s Initiative.
41. (iii) Subject to (iv) of this Recommendation, a Proposal shall be considered approved if it receives a simple majority of “Yes” votes and the total number of votes cast is greater than 50% of the total number of registered voters.
42. (iv) If the Proposal calls for a change of the Constitution of Barbados, it shall be considered approved only if the total number of “Yes” votes is greater than 50% of the total number of registered voters.
43. (v) In the event that a general election is called while there are outstanding Proposals not yet processed, the Chief Electoral Officer shall suspend the processing of such Proposals from the date the general election has been formally announced to one month after the date of the general election.
k) Campaigning
Recommendation 12:
44. All financial contributions to the campaign for a Proposal must be made only to the proponents’ financial agent registered with the Chief Electoral Officer.
45. No anonymous contributions shall be permitted.
46. The financial agent of the proponents must file a report with the Chief Electoral Officer within twenty-eight (28) days after the date of the ballot or general election, detailing the sources and amounts of funds collected. This report shall be made public by the Chief Electoral Officer. Failure to file a report will incur penalties under the Law establishing the system of People’s Initiatives.
l) Submission to Parliament
Recommendation 13:
47. (i) The Chief Electoral Officer shall forward the approved Proposal to the Minister responsible for Parliamentary Affairs who shall ensure that the necessary arrangements are made for the relevant legislative measure to be presented to, and voted on, by Parliament in the Parliamentary session immediately following the date when the Proposal was approved by the electorate. Subject to (ii) of this Recommendation, the legislative measure would be the object of a free vote not subject to the discipline of the Party Whips.
48. (ii) If the total number of votes in favour of the approved Proposal is greater than 60% of the total number of registered voters, then Parliament shall be obligated to pass the necessary legislation.
49. (iii) In the event that Parliament is dissolved before completion of the legislative process in respect of a Proposal before it, then that process shall be completed in the first session of the succeeding Parliament.
m) Penalties
Recommendation 14
50. Fines shall be imposed on persons or organisations who breach the provisions of the Law establishing the system of People’s Initiatives.
