ANALYSIS
actionable may always haunt our constitutionalism. Though our constitutions may well be aspirational and not a will and testament, it is important that our bill of rights is not strangulated at the altar of pragmatism. Furthermore, a balance must be struck between rights that can be subsumed under secondary legislation and those that must be given constitutional primacy. Also, it is important that we do not take for granted that because people espouse rights that are nowhere in the written text of the Constitution means that these rights should never have constitutional status. It may mean that there is a bundle of rights that seems to be sacrosanct among people and should be given, if appropriately applied to our context, constitutional status. In the end, if our Constitution is to strike the proper balance between endurance and suitability , it must be, according to Professor Albert, flexible, specific, and inclusive where the latter seeks to bring many different parties together with the goal of consensus through various mechanisms, including digital, in-person engagements, and via referenda. In the end, our goal must be what Maurice Bishop has noted: “This time round, this Constitution will come from the bowels of our people and our earth.” l Rahym Augustin-Joseph is a third-year student of The UWI, Cave Hill Campus from Saint Lucia reading for a double major in Political Science and Law. He is also currently the President of UWI STAT Vice-Chancellor’s Ambassador Corps and a Sir Arthur Lewis Scholar.
Promises and Enforcement A
nother balancing act that must be done is between promises and enforcement of fundamental rights. The Constitution is the citadel of protecting rights, but only those rights which it can actually enforce. Beyond our non-justiciable Charter of
Barbados , our new charter should not encompass a myriad of rights that cannot be enforced, as the literature has shown that those countries with the most codified rights have been unable to enforce them, as seen in Ecuador, Brazil and Angola. Recognising the unenforceability of the text of constitutions, we must strengthen the enabling institutions that enforce these rights if we are to increase our bundle of rights whether it be basic, catalytic, aspirational, or pragmatic. However, it is important in our constitutional reform process to not utilise our lack of institutional structures to prevent us from expanding our bill of rights to include social democratic norms, positive liberties, economic and social rights, and horizontal application of rights that underpin the fabric of our society. The question then becomes whether the right to education, healthcare, strike, join trade unions, among other social democratic norms must form part of our new iteration. The resolution must be to build these structures, summon the political will, and look towards other models for guidance. However, Professor Albert is correct
in that if these rights are expanded and not a lived reality, people will believe the Constitution is meaningless. It is for this reason the pragmatic bill of rights is most effective where the state recognises that it cannot deliver on the full gamut of rights and enacts an aspirational non-justiciable bill of rights. It therefore seeks to reduce the gap between the lived reality and the written text of the Constitution. In our context, this may be antithetical to our political culture, as it is characterised by the constant need to vindicate our rights before the judiciary and the removal of this opportunity will be problematic. Therefore, we need to build other institutions to resolve human rights breaches, such as the Human Rights Commission in Guyana. Moreover, the question of whenever is the right time and who determines the move beyond aspirational to pragmatic and
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