The Constitutional Reform Commission of Barbados: Much Expectation, Great Skepticism

On to the next promised step in its transition to a Republic, Barbados has established a Constitutional Reform Committee with a sweeping mandate to consider and propose what should be included, excluded, or modified in the new Republican Constitution for Barbados. Nevertheless, the final arbiter of the substance and form of this new Constitution will not be Barbadian society at large or even the Constitutional Reform Committee: it will be the Parliament of Barbados. Therefore, what this new Republican Constitution will look like, or if the country will have any at all, will largely be dictated by the extent of political will to effect fruitful constitutional reform - write Cynthia Barrow-Giles and Rico Yearwood.

The Constitutional Reform Commission and its mandate

On the heels of public criticism that the government of Barbados intended to transition to a Republic without the benefit of nationwide consultation, popular mobilization and other critical reforms, Prime Minister Mia Mottley promised Barbadians that beginning January 2022 and into 2023, a programme of public consultation would commence with reference to the concomitant constitutional reform project. On 24 June 2022, the ten-person Constitutional Reform Commission (“the CRC”) was launched under the Chairmanship of retired Justice Christopher Blackman. That it took some six months to do so may be partly explained by the fact that in December 2021, the Prime Minister announced a snap election for 19 January 2022, and, thereafter, the government had to contend with the continued onslaught of the Covid-19 pandemic. The Attorney General, Dale Marshall, with overall responsibility for the CRC, noted the disquiet but justified the seeming delay citing the elections and strain of dealing with Covid-19 and adding “We had to make sure that the Commission is well funded because … in order to have the kind of in depth consultation…that a modern Barbadian is entitled to and would want, we have to make sure that a lot of systems are put in place.” He further stated that “…[w]e have been methodical in our work in getting this process off the ground, and in making sure that the best possible arrangements for this Commission are put in place. There simply can be no false steps.”

Unlike other Constitutional Reform Commissions set up elsewhere in the Commonwealth Caribbean, which have been established by specific pieces of enabling legislation (such as in Guyana and St. Lucia), the CRC was set up under the Commissions of Inquiry Act Cap. 112 (“the CIA”), which provides for the President of the Republic to appoint Commissions of Inquiry as advisory commissions “whenever he deems it expedient in the public interest” to do so. Granted, this mechanism for the establishment of Constitutional Reform Commissions is not peculiar or novel to Barbados given that the CRC’s predecessors – the 1979 Cox Commission and the 1998 Forde Commission – were likewise established under the CIA.  

The warrant of appointment of the CRC contains its Terms of Reference and instructions and specifically provides for the CRC to undertake four tasks within a very constrained timeline of 15 months:

• To examine, consider and inquire into the Constitution of Barbados and all other related laws and matters with a view to the development and enactment of a new Constitution for Barbados;
• To make recommendations to the government on the reforms that would meet the circumstances of a 21st century Barbados and promote the peace, order, and good governance of the country;
• To provide for consideration a draft Constitution; and
• To make recommendations on all matters which in the Commission’s opinion are relevant to the attainment of the aims and objectives of the establishment of the Commission.

Clearly, these four tasks, individually and collectively, confer on the CRC a sweeping and boundless mandate to consider and propose any matter whatsoever for inclusion, exclusion and modification in the new Republican Constitution for Barbados. Further, the warrant of appointment of the CRC provided for two strategic objectives: namely, to consult the people of Barbados, nationally and in the diaspora, on the content of the Constitution and the desirable reforms; and to prepare and disseminate relevant material to widen public knowledge of and interest in the Constitution of Barbados and accordingly, the draft constitution. In a real sense, then, the CRC is supposed to operate as a conduit between the citizenry and the government relative to the creation of Barbados’ new constitution.

Reasons for optimism or skepticism?

Based on the foregoing, two issues are clear. Firstly, beyond the broad matters outlined above, the warrant of appointment issued under the CIA is silent on a number of procedural matters, which therefore provides the CRC with tremendous latitude in determining its rules of procedure and modus operandi. This can be a double-edged sword. On the one hand, the unbridled discretion may be seen as a blessing since it affords the CRC the ability to conduct its proceedings and operations in any manner that it sees fit to optimally fulfill its monumental tasks and objectives. On the other hand, the same discretion may be perceived as a curse since it also creates the scope for the CRC to skirt around procedural imperatives that may be necessary, in the public’s interest, for the CRC to properly discharge its mandate. One such procedural imperative is ensuring that all available platforms or avenues are employed for engagement with Barbadians far and wide.

From the outset, the composition of the CRC faced criticisms from the public with concerns over what is viewed as its fundamentally exclusionary nature.

Secondly, the members of the CRC were selected by the Attorney General, who was given the overall responsibility for the setting up of the CRC, and therefore cannot be said to be the result of negotiated broad-based consultation. While the members themselves reflect a wide cross-section of society, including various professional affiliations, and encompassing youth, religious and gender diversity, the decision to confine the membership to ten persons carried with it certain limitations. Thus, from the outset, the composition of the CRC faced criticisms from the public with concerns over what is viewed as its fundamentally exclusionary nature. The Rastafarian community for instance holds the view that it was objectionable and disrespectful to otracise Rastafarians from the membership of the CRC when other demographics in society are represented. Ras Simba, the spokesperson for the Rastafarian community, expressed his indignation after the launch of the CRC by stating that “[w]e are here now in 2022 and Rastafari … has come and established themselves as an integral part of the society … We feel very slighted and we look at the table and we see almost everyone else being represented at the table. Muslims represented, education represented, colonial Christianity represented … I am glad that all of these other facets of the society are represented but that means that Rastafari should also be represented.” Other groups and communities whose representation were strikingly excluded from the membership of the CRC include the main opposing political parties and the academic and LGBTQIA communities. Critics contend that the CRC could have been more reflective of an inclusive microcosm of the Barbadian society had there been an open and democratic consultation with the parliament and civil society. The notable absence of such crucial representation and democratic consultation could give rise to the public perception that the CRC is, for all intents and purposes, a political and not a technical CRC.

Overall, however, whilst the consultation process will be rooted in deliberation and largely advisory, it is anticipated that the process of constitution-making will be defined by extensive public consultations reflective of the acceptance of the importance of participatory and democratic constitution-making processes. While the Attorney General noted that in the process of constitution-making, “[t]here are to be no sacred cows,” this does not necessarily indicate there will be large-scale fundamental changes to the current system. This is especially as the Attorney General referenced a 2005 draft Constitution, prepared by the Prime Minister when she was Attorney General, as a starting point for the Commission, which did not conceive of significant departures from the previous political system and conventions. Therefore, while Barbados’ Republican constitutional reform project is a cause for much optimistic anticipation, it may equally be seen as a cause for a great deal of skepticism.

Limitations of Commissions established under the Commissions of Inquiry Act

Commissions of Inquiry are notorious for being seen as politically expedient, organized to avoid difficult and contentious matters. Indeed, as a Commission of Inquiry is simply a fact-finding body appointed by the government, such Commissions cannot enforce any of the recommendations made even after a rigorous process of consultation and drafting instructions. The attendant consequence is that all or a substantial number of its recommendations can be rejected by the government, or even if accepted, the government may or may not choose to pursue any further action on the matter. In that respect, the promise of meaningful constitutional reform may remain unfulfilled.

Commissions of Inquiry are notorious for being seen as politically expedient, organized to avoid difficult and contentious matters.

For instance, out of the 64 recommendations submitted by the 1979 Cox Commission in its report, no more than three were implemented. Correspondingly, a vast majority of the recommendations made by the 1998 Forde Commission were not enacted. Nevertheless, this is not limited to Commissions set up under Commissions of Inquiry Acts, as the Saint Lucia Constitution Reform Commission shows – a Commission which was established by and under a distinct statutory instrument. It took the government of Saint Lucia five years to discuss the mammoth report with its most consequential recommendations for reform being rejected by parliamentarians without the benefit of public consultation. To date not a single recommendation has been acted upon. Put simply, in these contexts, more often than not, Constitutional Reform Commissions are virtually toothless.

Conclusion

The process of constitution-making in Barbados since the announcement that the country would transition to a Republic has been nothing short of piecemeal with much depending on the CRC’s Report, its draft Constitution and ultimately the response of the Cabinet of Ministers and Parliament to the proposals, whatever the merit of such proposals. In a recent public lecture, The Hon. Justice Jefferson Cumberbatch, Justice of the Barbados Court of Appeal, stated that the Barbadian society will be the draftsmen of their new Republican Constitution. This may sound good theoretically. Practically speaking, however, the final arbiter of the substance and form of this new Constitution will not be the Barbadian society at large or even the CRC. The final arbiter will be the body charged with making and re-making the Constitution of Barbados, namely, the Parliament of Barbados. Therefore, what this new Republican Constitution will look like, or if the country will have any at all, will largely be dictated by the extent of political will to effect fruitful constitutional reform.

Cynthia Barrow-Giles is a Professor in Constitutional Governance and Politics at the Cave Hill campus of the University of the West Indies where she has also served as Deputy Dean of the Faculty of Social Sciences and Head of Department of Government, Sociology and Social Work.

Rico Yearwood is Head of Public Law & Legal Research Department, CARICOM Attorneys-at-Law.

♦ ♦ ♦ 

Suggested citation: Cynthia Barrow-Giles and Rico Yearwood, ‘The Constitutional Reform Commission of Barbados: Much Expectation, Great Skepticism’, ConstitutionNet, International IDEA, 12 August 2022, https://constitutionnet.org/news/constitutional-reform-commission-barbados-much-expectation-great-skepticism

Click here for updates on constitutional developments in Barbados.