Jeff_column

The Jeff Cumberbatch Column – A Season of Constitutional Change

Jeff Cumberbatch - New Chairman of the FTC

Jeff Cumberbatch – New Chairman of the FTC

“The greatest threat to our Constitution is our own ignorance of it…” – Jacob Roecker

“How easily men satisfy themselves that the Constitution is exactly what they wish it to be…” –Joseph Story

It would appear that the several jurisdictions in the region or, at least, some of them, have been seized simultaneously with the urge to re-examine their Constitutions and to reform these in some particular or other.

Later this week I am scheduled to participate in a panel discussion in Antigua & Barbuda on that twin state’s possible accession to the appellate jurisdiction of the Caribbean Court of Justice [CCJ]; an initiative that is to be the subject of an upcoming referendum as is constitutionally required in that jurisdiction and some others, once a delinking from the Judicial Committee of Her Majesty’s Privy Council is contemplated. It is an interesting contrast that no identical procedure was deemed necessary for that latter tribunal’s adoption at the coming into force of the Constitution.

And, as if it were irremovable from the public discourse, the notion of Barbados assuming formal de jure republican status returned last week with some force in a widely-reported panel discussion, despite an earlier and rather emphatic denial by a senior public officer, situated in the office of the Prime Minister no less, that this specific reform was not being considered currently.

On that occasion, one of the more newsworthy items, for obvious reasons -given our penchant for intrigue and the prurient-, proved to be the revelation that there had been an earlier effort to draft a “republican Constitution” for Barbados. In light of this information, most people seemed shocked that so significant a national development could have been undertaken “in secret”.

I tend to agree with the popular sentiment to some extent. While I understand, of course, that the draftsmanship of a Constitution is a technical exercise that would be best left to those who may be skilled in the area –that is, the drafting of Constitutions and not necessarily constitutional law-, the very nature of such a document demands intensive public participation in its broad outlines.

The Constitution connotes by definition that it is a document “constitutive” of the nation, and is not merely to be treated as any other piece of legislation. It is, otherwise put, a creation of the people, by the people, for the people. Hence their consent to its provisions should sedulously be sought.

I do not agree that this requirement would have been constituted (pardon the pun) by the views expressed to the admittedly wide-ranging Forde Commission. After all, to the best of my knowledge, this body was charged merely with eliciting popular opinion on general constitutional reform, as opposed to the precise elements of the form of governance that would ensue. In other words, once republican status had been considered the desired constitutional arrangement, only then what the international lawyers call the “travaux préparatoires” would have assumed pride of place through the determination of the finer points of that arrangement.

Indeed, if memory serves me correctly, the drafting of a “republican” constitution would have been precipitate in any event, since the actuality of this was officially hinged on the outcome of a referendum on a question that naysayers were to quick to seize on and to object to as insulting their “intelligence” when, as a matter of law and fact, it was the direct answer to that question that would have provided the irreducible minimum of formal republic status. Maybe that was the true reason for the re-drafting of the Constitution –simply to give those persons and their ilk additional fodder on which to vent their monarchical spleen!

I have also been made privy recently to a number of Bills that indicate the contemplation of substantial Constitutional reform in Grenada. According to the Grenada Government Gazette of February 12, 2016, these Bills, all styled Constitution of Grenada (…)(Amendment) Bills, were read for the first time in Parliament in early December last year.

They comprise (i) A Bill to restrict anyone from holding the office of Prime Minister who has held this office for three consecutive Parliamentary terms prior; (ii) A Bill to prescribe a fixed date for general elections; (iii) a Bill to ensure that there is the appointment of a Leader of the Opposition in Parliament even if, as has happened, all the members of the House of Representatives are members of the political party that forms the Government; (iv) A Bill to permit Grenada’s accession to the appellate jurisdiction of the CCJ; (v) A Bill to provide for the formal re-structuring of the Constitution; (vi) A Bill to change the name of the State from Grenada to Grenada, Carriacou and Petite Martinique; (vi) A Bill to establish an Elections and Boundaries Commission; and (vii) A Bill to refine the Chapter protecting fundamental rights and freedoms; to provide expressly for Directive Principles of State Policy; and to insert a new Chapter on Gender Equality.

These should provide ample material for legal scholars, and political and other social commentators to reflect on. I am especially provoked by the last Bill mentioned above that seeks, inter alia, to increase the kinds of conduct that would constitute discrimination, by adding to the traditionally proscribed grounds, those relating to disability, ethnicity, language and social class; to guarantee the right of a child to education; to require the state to aim at enhancing the supply of food, water and health facilities; and to domesticate relevant treaties.

In this existing climate of formal constitutional change in the region however, it is imperative that citizens become more familiar with the workings of the relevant document. I have often expressed my intrigue in this space at some of the assertions, not all populist or lay, as to what may be contained in the Constitution and what conduct may be contrary to its provisions.

We have had the Bar Association finding therein an express right to work; and relatively recent assertions that it would be unconstitutional for the police to arrest someone on suspicion of him or her being about to commit an offence; that the conferral of a knighthood is included in the Constitution; that the choice of Opposition leader is restricted to members of one political party; that the Attorney General must be a member of the Lower House; and that the Prime Minister may be removed by a simple majority of members of the House that support the government advising the Governor-General of their change of heart. These are all, if nothing else, mythical.

The Barbados Constitution

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93 Comments on “The Jeff Cumberbatch Column – A Season of Constitutional Change”

  1. balance March 6, 2016 at 2:26 PM #

    “(“originalist’’ judges a la Scalia that believe the original drafters of the US Constitution were right no matter the passage of over 200 years”

    Originalist though he was ; he was practical enough to recognize that it was illogical to subscribe to the view that two persons of the same sex could marry. His submissions thereto were quite profound and were favourable to the survival of the species.

    Like

  2. Vincent Haynes March 6, 2016 at 2:31 PM #

    David March 6, 2016 at 2:14 PM #

    David et Al……look at the The Gazers frustration……you mean to say that we old geezers on BU are impotent to change around our country….you mean not one idea amongst us to go forward with……BT did try to get the youngsters on BU to do something and failed……old saying when you want a job done do it yourself…..but how????

    We have to start a pirate station with a non stop call in programme.

    Like

  3. David March 6, 2016 at 2:34 PM #

    @Vincent

    We have had talk radio with us since Frank Pardo and Share, what is your point? Do you want a revolution or try to morose what we have.

    >

    Like

  4. Bush Tea March 6, 2016 at 3:05 PM #

    @ De Word
    Did you not promise to salvage your integrity and continue to project the aura of some intelligence… by not posting any more on this subject…?
    Why these intellectual suicidal tendencies on your part… are you on a new water diet or something…?
    Boss, take a leaf from Hants’ book and drink some rum or some spirit do!!

    You could NEVER see how anything could work…. what the hell do you do in life…? are you a professional pessimist?

    Think for a moment man…. Never mind Jeff stone-walling about ‘above his pay-grade’ …and needing ‘buy in from the profession’ …
    Lotta shiite… Jeff is probably refining and patenting the idea as we type…

    Wuh David(BU) could perform the role that Bushie outlined – except he would NOT have the clout of Jeff /UWI and he would not have the confidence of “knowing that he knows” when it comes to the Law… IT DOES NOT NEED ANY BUY IN from lawyers…

    The mere FACT of having official research being conducted by a RESPECTED body like Jeff /UWI …in FACTUAL performance by PRACTICING lawyers in the jurisdiction – with results being summarised into annual performance reports…
    …and these reports being available to prospective clients, government authorities, the press and most critically the blogs… any lawyer worth his salt will take a BRAND NEW approach to how (s)he does business….. or go broke…
    Shiite man …can you imagine an annual analysis of “client funds held” versus “actual balances on account at the bank” being generated as a matter of course… by no less a source than UWI?

    …and what additional staff – CURRENT students will do the damn research…
    Can you imaging the IMPACT on the new students currently preparing themselves to rob our children?

    What EXACTLY is your problem? …is this stuff TOO SIMPLE and straightforward for you to follow…? or are you now getting your water as it enters the lake….?

    Like

  5. Well Well & Consequences March 6, 2016 at 3:09 PM #

    Balance……Scalia himself was questionable, just a couple months ago one lawmaker was caught attributing and adding nonsense to the constitution that the drafters never wrote 200 years ago, he had to remove it, makes us wonder over the last 200 years, how much of it was edited and reedited to suit the nonsense rolling around in the heads of lawmakers from generation to generation.

    Like

  6. David March 6, 2016 at 3:14 PM #

    @Bush Tea

    The first decree of the soon to be established BTPAC is that any financial institution audited by the regulator/BRA and found to have paid interest on an account with clients monies shall pay a fine of $100,000 forthwith.

    Like

  7. Alden Blackman March 6, 2016 at 4:09 PM #

    @ The Gazer

    All governance systems need much improvement, these two men Jeff and Caswell seems to be helping by their postings on BU, the ideas are general, as Bush Tea said we can not even get MTW to enforce ant-flooding law in Barbados, if you are unlucky like me and seeking justice for a situation, please don’t be as naïve as me and ask Certain people for help.

    Like

  8. Vincent Haynes March 6, 2016 at 4:54 PM #

    David March 6, 2016 at 2:34 PM #

    Should have expanded and indicated the purpose was to educate the population as to what is realy happening in there country and open it to joe public to vent his frustrations with the system and call names….hence the pirate nature…..possibly A BU clone for the airwaves.

    Like

  9. Vincent Haynes March 6, 2016 at 4:56 PM #

    Bush Tea March 6, 2016 at 3:05 PM #

    Skippah…..why yuh doan leff DIW ‘lone,he making real sense.

    Like

  10. Sargeant March 6, 2016 at 6:31 PM #

    @Balance
    Originalist though he was ; he was practical enough to recognize that it was illogical to subscribe to the view that two persons of the same sex could marry. His submissions thereto were quite profound and were favourable to the survival of the species
    +++++++++++
    Yuh know we will never agree yuh think the survival of the species depended on a vote by the US Supreme Court? What happened to the European countries that have same sex partnerships? What happened to Barbados that have same sex partnerships since Adam was the proverbial lad? These partnerships were not codified by law but you know that they existed and perhaps one of your friends or a family member was a part of one of these unions.

    Scalia also famously said “‘you either believe in democracy or you don’t” this was after he voted to stop the Florida recount that ensured GW Bush would be elected President of the US, wasn’t stopping that recount a vote against democracy?

    Scalia wanted to have his cake and eat it.

    Like

  11. Sargeant March 6, 2016 at 7:01 PM #

    @Bush Tea
    You could NEVER see how anything could work…. what the hell do you do in life…? are you a professional pessimist?
    +++++++++++
    I was waiting for DIW to respond but he must be consulting Roget to formulate his response , but that is too delicious to pass up. Bushie calling someone a pessimist? Hold muh, muh belly, wuhloss, wuhloss if I was diabetic my sugar count would be off the charts, too sweet, too sweet like Xmas ham that you haven’t seen for twelve months or like ok this is a family blog…..

    Bushie calling someone a pessimist, the irony, the horror, the humanity, If I don’t laugh the rest of the year it’s because I have reached my quota😀

    Like

  12. de Ingrunt Word March 6, 2016 at 9:19 PM #

    @Vincent and #Sargeant, I was distracted and then as you said I was working hard to figure out if I wanted to tussle with Bushie again. He rants in one direction when he does not want to be serious and its a drag to run his path at times. If I try to be factual and precise he gets pithy and makes some irrational reply. If I get flippant he tacks back and tries to be serious.

    @Bushie you are correct that research on the performance of lawyers would be a good thing. Currently the working folks who are charged to do this have great difficulty getting credible info sometimes even in getting the attorneys to respond to their valid legal requests.

    Yet in your wisdom you have determined that the law students will have greater persuasive or other power to get this data.

    You have wrapped your recommendation with well framed processes and obviously you can see where the grant funds will come from and exactly how this will be structured along with the students curriculum and all that sort of thing.

    Sounds like an awesome Bushie plan to me. Full of excellent theory very short on practical implementation details.

    No problem whatever with your sharp brain. The problem is moving from design to product development to market penetration. But heh I am a naysayer…you will get in done.

    Liked by 1 person

  13. Sargeant March 6, 2016 at 9:27 PM #

    @DIW
    He rants in one direction when he does not want to be serious and its a drag to run his path at times. If I try to be factual and precise he gets pithy and makes some irrational reply. If I get flippant he tacks back and tries to be serious.
    +++++++++++++++
    I know the feeling tussling with Bushy is an exercise in futility, its like nailing jello to a wall you sure he aint a politician?.

    Like

  14. Bush Tea March 6, 2016 at 10:32 PM #

    LOL @ the Canadian water drinkers…
    No point in trying to psycho-analyse Bushie …. wunna fellows never met anyone like the bushman before – and likely never will again – so don’t dig nothing… Jesus once asked of the disciples “who do men say that I am…?”
    People have ALWAYS been confused by BBE’s boys…

    @ Sargeant, so what is so complex about Bushie classifying DIW as a professional pessimist? …and what has any perceived pessimism on Bushie’s part got to do with such a classification? Are you suggesting that a short man can never classify another fellow as short….?
    steupsss … all that fresh water in Canada …and look what wunna drinking….

    @ DIW
    If you don’t follow a concept, why not just ASK questions before PRESUMING and ASSUMING …and then coming to stupid conclusions.

    The Student research proposal is a ridiculously SIMPLISTIC proposal. What is all this nonsense about “grant funding” and curriculum concerns…?
    When last were you in a university boss….? Students ROUTINELY do research projects. Right now they research old shiite cases and spend hours delving into useless old nonsense….
    All a lecturer would do is change the focus of some of these research projects into collecting PUBLIC information from the Registry, lawyers themselves, clients, Insurance Companies etc….on CURRENT, relevant legal practise in Barbados.

    Any lawyer who refuses to provide the requested PUBLIC information would simply be listed in the report as not providing requested information….. and much like athletes who refuse to be available for drug tests…. three strikes and you are listed as ‘non-compliant’….

    Potential clients then have access to a resource document/database/performance rating which they can use to determine who to hire, who to avoid, and who has been getting good reviews…

    Do you have ANY idea of how powerful customer ratings are on online sales sites? Suppliers BEG customers not to ‘down-rate’ them …and will bend over backwards to provide nothing less than EXCELLENT service…in order to get good reviews….

    Skippa, your head would probably spin at any of Bushie’s ‘awesome plans’….and there are many… But things like this, BUP, and the water meter proposal are VERY simple, off-the-cuff, OBVIOUS ideas to solve basic problems presented.
    ..don’t be awed…. and avoid that lake water at all cost…

    Like

  15. balance March 7, 2016 at 5:08 AM #

    Perhaps Sarge one day we will agree but not this time for opinions proffered on why the Justices voted one way or the other would always be speculative since we were not in the minds of the Justices. I suppose we can cast aspersions on the voting pattern for Obamacare as well.

    Like

  16. Well Well & Consequences March 7, 2016 at 6:35 AM #

    Sometimes I wonder about Dee Word’s claims of living in Canada, how could he not know that university students do ALL the major research required for the country, including writing proposals for business people….or is he just hoping it’s not so because he does not think it should be so, what a mentality. I needed some business information and was sent directly to one of the universties to have the students do the research.

    The Bushman…on watching your writing for the last few months, you are quite the analyst.

    Like

  17. ac March 8, 2016 at 11:13 PM #

    Like

  18. Bush Tea March 9, 2016 at 7:23 AM #

    In politics, if you want anything said, ask a man.
    If you want anything done, ask a woman.
    Unfortunately, politics is all about shiite…

    Like

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