ANALYSIS
citizenship, 'home' is even more difficult to define, as there are demands of us to conform to the homogenous requirements of the international world order, as sovereignty continues to be eroded. Our treaty obligations may cause us to be defining 'home' in accordance with the international order. People-Centric Constitution Making: Balancing Flexibility, Rigidity, Promises, Enforcement, Endurance and Suitability Professor Albert is correct in noting that a homegrown constitution can only be achieved by appropriately balancing the various aspirations and diverging views of people. The difficulty emerges in determining the pragmatism of what is and what is not appropriate. The first balancing act is between flexibility and rigidity , as the Constitution must not be too easy or too difficult to amend. Most constitutions do not balance this properly, and they provide one procedure to amend all articles, whether it is routine or transformative. The best mechanism, according to Professor Albert, is to ensure that there are separate procedures for constitutional amendment and dismemberment. He noted that an amendment is an authoritative change to the fundamental law of the jurisdiction, which elaborates, restores, corrects or reforms the meaning of the Constitution consistent with the basic presuppositions of the Constitution. Amendments therefore need to be easy to occur as they’re merely housekeeping. On the other hand, a dismemberment exceeds the boundaries of the Constitution and transforms something major and goes against the nation’s core ideas and commitments. It might change the
fundamental rights and freedoms or the basic structure doctrine, and it may seek to dissemble one or more of a constitution’s basic parts. These should obviously have more difficult and comprehensive processes than for amendment. In this era of constitutional reform, we therefore need to address issues such as the savings law clause which protects pre- independence colonial laws from review by the courts and imposes difficult processes for amendment. However, the Caribbean Court of Justice , in Nervais v The Queen & Boyce and Joseph, has noted that the savings law clause should be narrowly construed, interpreted in accordance with our treaty obligations, or modified. Notwithstanding, McIntosh has noted correctly that it still exists as being “caught in a time wrap, continuing to exist in its primeval form, immune to the evolving understandings and effects of the rights of people like a worm in the mango of our Constitution.”
Moreover, the issue of the high threshold requirements of referenda in St. Vincent, Grenada, Antigua and Barbuda, among others, where attempts have been made to transform the polity, must be addressed. Albeit the threshold shows rigidity and democratic legitimacy, it may be impractical when compared to our history of
voting patterns across the region, especially when its success is trapped in the web of partisan politics and a lack of an education campaign on the amendments. Therefore, our homegrown Constitution must not only wrestle with voter apathy but scientifically and culturally determine the proper threshold needed for amending our Constitutions. Barbados must, therefore, determine in this iteration what procedures should have the highest status so as to ensure that they attract higher procedures for dismemberment, and these may be some of the social democratic norms which, over the years, have formed part of the Idea of Barbados.
Members of the Constitutional Reform Commission: (from left, standing) - Suleiman Bulbulia, Senator Reverend Dr. John Rogers, Khaleel Kothdiwala, Adriel Brathwaite, Senator Gregory Nicholls, and Chris de Caires; (from left, sitting) Kerryann Ifill, Mary-Anne Redman, Christopher Blackman, Sade Jemmott, and Professor Cynthia Barrow-Giles
CHILL NEWS 31
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