West indian constitutional discourse: a poetics of reconstruction

• Author: Simeon C.R. Mcintosh
• Position: Emeritus Professor, Howard University School of Law, Washington, D.C.; Reader in Jurisprudence, Faculty of Law, University of the West Indies, Cave Hill, Barbados
• Pages: 1-75

WEST INDIAN CONSTITUTIONAL DISCOURSE:

A POETICS OF RECONSTRUCTION

SIMEON C.R. MCINTOSH*

I. INTRODUCTION - A QUESTION OF CONSTITUTIONAL IMAGE

An

oath

is of no

moment,

being not

took

Before

a

true

and

lawful magistrate

That hath authority

over

him

that

swears.

- Shakespeare

(Henry

VI)

It is still our wont in the Commonwealth Caribbean,1 on the

view that Queen Elizabeth II of Britain continues to be our queen, to

pledge allegiance to her. Every Member of Parliament, like the

Governor-General, must first take the Oath of Allegiance to Her

Majesty, before assuming office. Thus the Barbadian intellectual, Mr.

James Tudor, writes:

We [Barbados] are a nation state because, together with our

other attributes of sovereignty, she is our Queen. Ours is a

territory that came into history neither by conquest, nor by

cession, nor by an exchange, but as a realm discovered by

Emeritus Professor, Howard University School of Law, Washington, D.C.;

Reader in Jurisprudence, Faculty of Law, University of the West Indies,

Cave Hill, Barbados.

My debt to Professor Richard Kay, University of Connecticut Law

School, remains outstanding. He has never been unsparing in his criticisms

of my work, but he has never been unkind.

Dedication: For my sisters, Hillary and Daphne, who have loved and

nurtured me.

1 "Commonwealth Caribbean" is used here to refer to those former British

possessions, the islands of the Caribbean Archipelago and the mainland

states of Belize and Guyana, which are now independent states.

"Commonwealth Caribbean" and "West Indies" are used interchangeably.

Guyana, Trinidad and Tobago, and Dominica are the three states that no

longer pledge allegiance to the British Monarch.

Englishmen and settled in the name of an English King, before

the designations "Great Britain" or "United Kingdom" ever

entered the history books. The Crown is therefore the oldest

institution in Barbados, with Parliament coming next.

It is this understanding that Barbados entered history as an

English realm which makes me a monarchist. Had I not

understood and accepted this as an indefeasible truth, I could

not have had a career in the politics of my country, and a

place in its Parliament. I could never have taken the Oath of

Allegiance to the Queen if she were only Queen of the United

Kingdom and nothing else.2

Such reasoning seems rather nonsensical for at least two reasons.

First, Mr. Tudor was writing as a citizen of independent Barbados;

therefore, notwithstanding Barbados's entry into history as an "English

realm", Mr. Tudor seems incognizant of the break in the historical

continuity of British sovereignty wrought by the political independence

of Barbados. Second, the historical fact of Barbados having been

claimed for the King of England would certainly have brought

Barbados under the dominion of the English Crown and would have

made everyone living in the territory a "subject" of the English

(b) Monarch - at least until political independence. But this hardly makes

one a monarchist as an "indefeasible truth". For the simple fact is that

for one to claim to be a monarchist is to argue that monarchical rule

is the best form of political rule. Thus, Mr. Tudor may have gleaned

from experience that monarchical rule is the most appealing form of

political rule, and, on this score, he can indeed be said to be a

'monarchist'. But it would be somewhat of a non sequitur for him to

claim that he is a monarchist because he was,from birth, a subject of

the English Crown. If, assuming arguendo, Barbados is still under the

dominion of the "Crown", then Mr. David Comissiong,2a who

disavows the Monarchy and could not therefore be said to be a

monarchist, is equally (like Mr. Tudor) a subject of Queen Elizabeth

II.

This discussion, however, hardly suggests its earth-shaking

importance, for it puts in high relief one of the foundational

2 James Cameron Tudor, "The Queen and Mr. Comissiong", Daily Nation,

(Thursday, November 17, 1992).

2a

Ibid.

interpretive issues

in

West Indian constitutional

law: the

central

question

of our

constitutional image.3

It is

this image,

a

shared

consciousness among judges, lawyers, scholars

and

citizens alike,

which functions epistemologically

to

shape

our

constitutional debate

by

defining

the

scope

of our

inquiry,

the

categories

in

terms

of

which

we

frame such inquiry,

and

informing

the

issues posed

by the

constitutional text

-

issues regarding

the

institutional arrangement

of

political authority,

and the

fundamental rights

of the

citizen,

and the

citizen's standing

to

challenge governmental policy.4

It

is

rather

the

common understanding that, with

few

exceptions,5

all

of the

independent states

of the

Commonwealth Caribbean have

retained

the

Queen

of

England

as

their head

of

state. This

is

taken

to

mean that, like Britain

itself,

they

are all

constitutional monarchies.

There

has

been among them

a

common practice

to

find

the

Queen's

continuing presence

in the

post-independence constitutional order

in

such language that

'the

executive authority

of

[Barbados] shall vest

in

Her Majesty

The

Queen,

Her

Heirs

and

Successors alike'.6 Such

a

fundamental misreading

of the

constitutional relationship between

the

independent Commonwealth Caribbean

and the

British Sovereign rather

betrays

a

passive acquiescence

in an

unargued doctrinal position,

the

product

of an

historically situated discourse

of

power-relation,

(coloniser

and

colonised), that

has

managed

to

impose

its own

normative categories

on

West Indian constitutional thought

to the

point

of silencing

the

claims

of

critical reason

and

hermeneutic reflection.6a

An eminent student

of

West Indian constitutional

law, A.R.

Carnegie,

has

submitted that British legislative power over

a

territory

disappears

in a

single event

at the

moment

of

independence. There

therefore remains,

he

reasons,

the

theoretical problem

of

giving

an

explanation

in

legal theory

of the

manner

in

which

a

power ceased

to

exist when

it was

intrinsic

to the

theory that

the

power could

not be

abdicated.

But we

know that this

has

happened even

if we

cannot

3

For a

thoughtful essay

on

this question

of

"constitutional image",

See

William

E.

Conklin, Images

of

a Constitution (1989).

4

Ibid. at 9.

5

The

exceptions

are

Guyana, Trinidad

and

Tobago,

and

Dominica.

6 Barbados Constitution, section

101.

6a

Christopher Norris, Spinoza

and the

Origins of Modern Critical Theory

184

(1991).