The court case
I decided to write my evidence-based witness account on how Barbados became a republic to fill the knowledge-gap in this current misinformation age. This first of three articles describes the court case.
Republic minus 65 days: On September 26, 2021, the House of Assembly passed the Constitution Amendment No. 2 Bill (2021) for Barbados to become a republic on November 30, 2021—without explaining its legal basis. In my opinion, the Bill seemed to violate the Constitution of Barbados. During its passage, the prime minister acknowledged that there were differing legal opinions on the lawfulness of the government’s actions and advised that Barbadians could argue their case in court.
Republic minus 54 days: The Bill was passed in the Senate on October 6, 2021 — without the legal basis being explained. Therefore, to understand the legal basis for Barbados becoming a republic, I reluctantly followed the prime minister’s advice and petitioned the court on October 7, 2021 (Reference: CIV 0867/2021) to urgently review whether the government’s actions were lawful.
Republic minus 49 days: On October 12, 2021, two lawyers from the Attorney General’s office and I appeared virtually before Mr Justice Barry Carrington, where it was agreed that in order to start the process: (i) the Attorney General would respond to my application for judicial review on or before October 26, 2021, (ii) I would file submissions on or before October 26,2021 and (iii) the Attorney General would respond to my submissions within 14 days of receiving them. I filed my submissions on October 17, 2021.
Republic minus 18 days: On November 12, 2021 (17 days late), the attorney general finally revealed how they justified making Barbados a republic. I filed my submissions in response on November 18, 2021, addressing in detail each of the attorney general’s arguments.
Changing the Head of State
The constitutional Head of State of Barbados was the Queen. The government wanted to change the Head of State by changing the Constitution. Many relatively simple provisions in the Constitution can be passed with a simple majority (one plus half the number) of Parliamentarians. However, there are some very important provisions that are called entrenched and require a two-thirds majority vote.
In all known constitutions, changing the Head of State is an entrenched provision that may require a public referendum in addition to a two-thirds majority vote in Parliament. In Barbados’ case, we seem to have negotiated a constitution that does not allow the removal of the Head of State by Parliament alone, not by two-thirds or three-thirds — it needs to be negotiated with our Head of State.
Independence negotiation meetings
We may understand why a negotiation was needed by reading the negotiation minutes of our Independence meetings with the UK Secretary of State for the Colonies, completed on July 1, 1966. In attendance were representatives of the governing Democratic Labour Party (DLP) and opposition Barbados National Party (BNP) and Barbados Labour Party (BLP).
The minutes show the following pattern of behaviour for several provisions where there was no agreement. The opposition BLP and BNP would object to a constitutional provision, then they would be overruled and insist on their dissent being included in the minutes, which was done. However, for some provisions, it was not merely dissent. The minutes state: “The Conference noted the strong objections of the Barbados National Party” and “The Barbados Labour Party expressed their strong objections”. The UK Secretary of State explained to the BLP and BNP that they could change certain provisions if they were elected to govern.
The Conference Report (July 4, 1966) noted that when the Independence bill was being debated in Barbados’ Parliament, the two opposition parties, BLP and BNP, took no part in the debates. The BLP and BNP’s unwillingness to debate the Independence Bill, coupled with their strong objections in the UK, revealed a fragility-risk of an independent Barbados if the BLP or BNP were elected to govern. Errol Barrow appears to have addressed this foreseen risk by not allowing Barbados’ Parliament to unilaterally change the Head of State.
The government’s legal argument
In his submissions, the attorney general agreed that the Constitution forbade them from changing the Head of State with a two-thirds majority. Therefore, to force this change, they argued that changing the Head of State was not an important and entrenched provision, but a relatively minor matter that could be changed with a simple majority.
Republic minus 6 days: On November 24, 2021 (48 days after my initial claim), the judge ruled that I had no grounds on which to petition the Court, despite the prime minister’s advice, and ordered me to pay the attorney general $5 000. The attorney general objected that the sum was too low and asked the judge to increase it to $10 000.
The attorney general should freely provide the legal basis for all legislation as a matter of course. The argument that changing a Head of State is a minor constitutional provision is so absurd that it was kept secret until it was forced to be revealed by the court.
Next week: Our republic’s foundation.
Grenville Phillips II is a Doctor of Engineering and a Chartered Structural Engineer.
He can be reached at NextParty246@gmail.com
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