Suddenly, as if out of nowhere, the Barbados Constitution is springing into life. We are accustomed to thinking that the document deals with the politicians, but there is a very substantial portion of the document which has been shown to have application to matters of everyday concern.
Issues such as the appointment of judges and, more pertinently the chief justice, are matters that remind us of the importance of constitutional script, but sometimes there are more mundane reminders.
Here are three such examples.
Last year, a man appearing before the courts argued that the state should pay for an expert witness whom he wanted to call in his defence because the Government had produced its own expert and there were no other experts available in the island. Also, he had no money.
The long and short of the matter is that the court held that the rights of that accused to have the Government provide him, at its expense, with the expert was enshrined in the proper interpretation of the constitution. His lawyers made much of the fact that there should be what is known as “equality of arms” in legal battles, if the trial is to be fair.
I have no present comment on the question of the criteria for appointment to the office of chief justice, but the issue raised questions of constitutional or near constitutional import, having nothing at all to do with the popular perception that the constitution is mainly or all about politics.
Another everyday use of the document is the case of the late Prime Minister Eric Gairy against the Grenada government. Compensation had been ordered to be paid to the Gairy family in respect of certain property compulsorily acquired by the New Jewel Movement government of my late friend and student colleague, Maurice Bishop.
The government had delayed the payment for some years and the family needed to get the money. It was a private citizen going up against the monolithic might of the state, since up to that time one could not legally force a government (by injunction) to honour a court order to pay up.
The Privy Council, however, broke fundamentally new ground. Sweeping away the centuries old unshakeable rule of law that the king (Crown) could not be ordered in his own court, the judges said that if necessary they would fashion new remedies to deliver appropriate justice in the case.
The declaration that they would grant an injunction against the government and hold the minister of finance to account for making the payments was earth-shattering.
Now recently, a new area of conflict within our society raised its head, and I suspect that it is going to be another frontier in which citizens may try to use the constitution to enforce their right (as they see it) not to be discriminated against on grounds of sex or perhaps sexual orientation.
The United Gays and Lesbians Against?AIDS Barbados recently announced the formation of a youth arm. The announcement met with instant denunciation from certain sections of the church,
but I suspect that it is in the courts and not in the church where the issues of sexual orientation, sex and gender will be fought.
Now, there may be some technical differences between our constitution and that of the United States of America. However, in the US in March this year, a high school lesbian in 8th grade took her school board to court claiming a preliminary injunction against the board because it ruled against her taking her girlfriend as her date to the prom.
She was also told that the two girls could attend with two male dates and that if they did, they (two girls) could not slow dance, because it would “push people’s buttons”.
The young self-confessed lesbian argued that she wanted to attend the prom with her girlfriend because she did not want to hide her sexual orientation. She also testified that the school was attempting to force her to be someone she is not by going with a male date. She further testified that “gay students have the same rights as straight students to not only attend the prom with the person they are dating, but also to dance with that person”.
Her lawyers did not get the injunction, but the case is still ploughing its way through the court system. Her lawyer was able to cite one case in which the United States Supreme Court “recognised that the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools”.
I rest my case.
A constitution is about more than politics. True, it protects the citizen from the awesome power of the state. But it is a powerful tool in the hands of skilled lawyers and independent courts.
• Ezra Alleyne, an attorney-at-law, is a former Deputy Speaker of the House of Assembly.