Barbados’ new constitution will enshrine a binding code of conduct for ministers, give the opposition more seats in the Senate, ensure gender parity in the Upper House of Parliament and, for the first time, empower citizens to sue each other for breaches of constitutional rights, if the recommendations of the Constitutional Reform Commission (CRC) are accepted.
The recommendations are contained in the CRC’s 360-page just-released report, with the commission making it clear that all of the rights to be enjoyed by citizens carry with them limitations that must be reasonably justifiable.
The report noted that while a code of conduct currently exists for ministers and parliamentary secretaries, the majority of the CRC believes that the requirement for such a code should now be enshrined in the Constitution.
“The majority also recommends that the code be binding on ministers and parliamentary secretaries. The prime minister would be required to prepare the code and it would be laid before both Houses [of Parliament] for affirmative resolution,” it stated.
“It is also proposed that either House or a committee of either House be empowered to request that the Integrity Commission investigate alleged breaches of the code by a minister or parliamentary secretary. The Integrity Commission, which could also launch an investigation on its own initiative, would then report back to the House of which the minister is a member and that House should within 60 days consider the report.”
The CRC emphasised that this recommendation is intended to promote deeper accountability.
“Specifically, empowering the Integrity Commission to investigate alleged breaches ensures that the code does not create a self-regulating regime, which can be ineffective. Additionally, the majority considers it important for the code to be binding in order for the accountability regime to be effectual.
“Finally, requiring the code, and amendments, to be approved by Parliament promotes inter-branch accountability and enables Parliament to exercise a check and balance role, which further promotes separation of powers and the rule of law,” it stated.
Another recommendation proposes a reallocation of Senate seats.
While the CRC suggests retaining the Upper Chamber’s current 21 members, it believes the opposition – which presently is allotted two seats – should have four instead.
“The composition of the Senate should be altered to increase the number of opposition senators. The new composition should be . . . 12 senators appointed on the advice of the Prime Minister (government senators); four senators appointed on the advice of the Leader of the Opposition (opposition senators); and five senators appointed in the President’s own discretion (independent senators),” the report suggested.
Securing gender parity in the Senate is also a key recommendation.
The majority of commissioners proposed that the prime minister be required to recommend the appointment of six men and six women as government senators, while the opposition leader should similarly recommend two men and two women as opposition senators.
Regarding the independent senators, who number five, the majority recommends no fewer than two male and two female senators, leaving the fifth senator at the President’s discretion.
On the ground-breaking proposal to allow private citizens to sue each other for constitutional breaches, or “direct horizontality,” the CRC observed that constitutions traditionally regulate relations between the State and citizens.
“Therefore, the traditional view, in relation to fundamental rights, has been that those provisions only bind the State, and therefore, rights and freedoms are enjoyed by persons against the State, rather than against other persons. Said differently, it is only the State which is obliged to respect the rights and freedoms of persons,” the report highlighted.
“Put simply, one can only sue the State for breach of constitutional rights, but not a private person. This view of fundamental rights is known as ‘vertical application’, so called because of the idea that the State exists above the person so that constitutional rights apply vertically between the two.”
But the CRC believes that in applying fundamental rights horizontally, each case must consider the nature and content of the right, alongside the duties imposed on private individuals.
“The Commission is satisfied that its recommendation, concerning direct horizontality, will mark a watershed moment in the development of fundamental rights law in Barbados and will open new vistas for persons who feel that their human rights have been breached, no matter by whom,” the document declared.
Barbados TODAY has learned that the report will be officially launched to the public early in the New Year.
emmanueljoseph@barbadostoday.bb
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