West Indian Constitutional Discourse: A Poetics of Reconstruction

• Author: Simeon C.R. McIntosh
• Profession: Professor Emeritus of Law at Howard University, Washington, DC
• Pages: 306-373

West Indian Constitutional

Discourse: A Poetics of

Reconstruction

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, Sir 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 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 on 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

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West Indian Constitutional Discourse: A Poetics of Reconstruction

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 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,3 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 interpretive issues in

West Indian constitutional law: the central question of our constitutional

image.4 It is this image, a shared consciousness among judges, lawyers,

scholars and citizens alike, which functions epistemologically to shape our

constitutional discourse 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.5

It is rather the common understanding that, with few exceptions,6 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’.7 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

Reading Text and Polity

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own normative categories on West Indian constitutional thought to the point

of silencing the claims of critical reason and hermeneutic reflection.8

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 explain how it happened.9 And legally, in respect

of those countries ‘where the monarchy has been retained, all this meant no

change in the legal power of the Crown, but merely in the identification of

the sources of the advice the Crown takes.’10 On this view, it would seem, the

Crown has the same status in the post-Independence West Indian political

order as it had in the pre-independence political order.

The issue as framed by Professor Carnegie is not happily put. The

problem is fundamentally jurisprudential: how to explain the end of imperial

rule in a territory and the conceptualization of that territory ‘as if’ it has

been reconstituted as an independent sovereign state. More simply put, the

problem is one of explaining the removal of British sovereignty from the West

Indies upon their political independence and, therefore, their reconstitution

as sovereign states. In other words, any adequate historical/political narrative

or explanandum that would be faithful to the cognitive values of its genus,

and which affects to explain our advance from colonial status to political

independence, must inevitably take account of the corresponding shift

in the constitutional position of the British Sovereign vis-à-vis the former

colonies. For it is precisely this sort of shift that we want explained; and an

explanandum describes not only an event – something that happens, political

independence, say – but rather a – change.11 Thus, West Indian constitutional

analysis must apply its best efforts to the task of rational reconstruction in

order to explain what is conceptually entailed in this movement from colonial

status to political independence; and this requires that reason be allowed full

scope for the exercise of a critical hermeneutics that distances itself from the

currency of accepted ideas and the unthinking doctrinal adherence to the

‘scriptural’ reading of our constitutional texts. For we could not possibly

begin to render an adequate reading of our constitutional texts without

acknowledging the tacit values, the structure of shared meanings, beliefs and

pre-understandings, that make up the enabling background of each and every

interpretive act.12