CONSTITUTION OF GRENADA (NAME OF STATE), (FIXED DATE FOR ELECTIONS) & (TERM OF OFFICE OF PRIME MINISTER) (AMENDMENT) BILLS 2016

 

by Claudette Joseph

by Claudette Joseph

NAME OF STATE

For a long time now, the people of Carriacou & Petite Martinique have expressed that officially recognising these 2 islands in the name of the state will go a long way in helping them to feel a sense of inclusion and belonging to the nation.

Neither the 1985 nor the 2006 Commission made specific recommendations to include Carriacou & Petite Martinique as part of the name of the state. The 2006 Commission recommended that more debate should be held on this issue before a decision can be taken.

Prof. Mc Intosh (who was from Carriacou) recommended that the name of the state should be “The Commonwealth of Grenada”. CRAC put the issue to the vote in its internal voting and 11 of its 14 members voted “yes”.

In this Bill, the Explanatory Memorandum deserves special attention. The explanatory memorandum to a Bill serves a very important purpose. It explains what is intended to be achieved by the Bill, the policy driving the Bill and must give an indication of Parliament’s intention in plain, non-technical language. It must contain nothing that is argumentative in character.

The Explanatory Memorandum is also used by the Courts as an important help in interpreting laws, and clearing up ambiguities in them. For all its good uses, the Explanatory Memorandum is not part of the Bill itself.

The Constitution of Grenada itself does not define ‘Grenada’, nor does it spell out the expanse of our territory.

Section 3 of the Interpretation and General Provisions Act provides that Grenada, “the island”, “the State”, includes Carriacou & Petite Martinique, its adjacent islands and territorial waters.

The Bill proposes to amend this section to replace the word “includes” with the word “means”. So that the new definition will read: “Grenada”, “the island” “the state” means Carriacou and Petite Martinique and the adjacent islands, and all territorial waters adjacent thereto.

The Bill also proposes to define the territory of Grenada as comprising the islands of Grenada, Carriacou & Petite and all other areas that comprised Grenada on 7th February 1974, together with such areas as may be declared by Act of Parliament.

On its face, the Bill offers 2 separate definitions for Grenada. Therein lies a potential ambiguity.

Added to that, the Territorial Sea & Maritime Boundaries Act spells out in detail, the limits of Grenada’s territorial waters and other maritime area. That Act came into force in 1989, after 7th February 1974. The Bill takes us back to 1974, apparently without due consideration given to whether or not, our current territorial space is what it was back then.

In the event that the Bill carries and a future court is asked to determine what really comprise Grenada, it will look to the Explanatory Memorandum for assistance. Paragraph 4 of that Memorandum says, that Grenada “means” the three “public islands” of Grenada, Carriacou & Petite Martinique.

Civil Society spotted this potential issue and wrote to CRAC asking for the reason for the reference to “public islands” and suggested that it be deleted. In a letter dated 31st March 2016, CRAC responded, acknowledging that the reference to public islands was potentially problematic and undertook to have it deleted. Despite this, and in breach of its undertaking, the change was never made!

Civil Society also posed a question which up to today, remains unanswered, it is: Within the context of measures to woo the mega-rich and the increasing privatisation of the ownership of Grenada’s offshore islands, is this Bill, wittingly or unwittingly, creating legal loopholes for those who may wish to operate “enclaves” and principalities and who may at some time, take it into their heads to challenge Grenada’s sovereignty and jurisdiction over these islands?

This Bill needs further attention before it is put to the people in a referendum.




FIXED DATE FOR HOLDING  ELECTIONS

Section 52 of the Constitution deals with the time for holding elections, it provides that the life of Parliament shall be 5 years after which it shall be dissolved, but the Prime Minister may advise the GG to dissolve the Parliament at any time and the GG must act on that advice.

The proposal coming from the people was that: “A specific date for the holding of elections should be ENSHRINED in the Constitution”, (page 49 of the 2006 Constitution Review Report). This call was repeated at the public consultations. The proposal was considered by CRAC but was not forwarded to Parliament because it didn’t meet CRAC’s internal voting threshold. Six persons voted “yes”, 1 person voted “yes later” and 3 voted “no”. Four persons either abstained or didn’t vote.

When the additional items were sent to Cabinet, the proposal was completely changed from what the people asked for to what is in the present referendum Bill.

The present Referendum Bill, by its name gives the false impression that if passed, there will be a fixed date for holding elections. Sections 3 and 4 are the 2 main aspects of the Bill.

Section 3 proposes to allow Parliament to reduce the intervals during which elections can be called. Now, it is every 5 years. The Bill proposes to allow Parliament to reduce it to less than 5 years. It therefore gives Parliament a power that it does not presently have.

Section 4 gives Parliament the OPTION to make an ordinary law (which it can amend with a simple majority) to fix the date for elections. However the interval between two elections can be no more than 5 years. If this amendment carries and Parliament chooses to do nothing at all, it will not be in breach of the Constitution and things will remain just as they are now.

Likewise, one government may pass a law fixing the date and another government can amend or even repeal the law at its convenience.

I offer the suggestion that this Bill, if passed, can well have the opposite effect of what the people intended. In proposing a fixed date for elections, the people were asking for more predictability and stability; and an end to the unfair advantage a ruling party has in calling the elections when it is politically convenient. In fact, the Bill will create uncertainty, unpredictability and unreliability in our system.

It is very regrettable that Cabinet and CRAC decided to ignore the expressed wish of the people in this matter. It would have placed us well ahead of our Caribbean neighbours and indeed among small poor countries to have taken the lead on this one.

We would have been in company with the United Kingdom who introduced Fixed Date for elections in 2011, Canada who did so in 2007 and of course the United States. Australia too is moving in that direction.

Term of Office for the Prime Minister

This Bill is proposing to alter section 58 of the Constitution so as to make provision to disqualify a person who served three consecutive terms as Prime Minister from serving a fourth.

Term limits for the Prime Minister was  recommended by the 2006 Constitution Review Commission at page 57 of its report where it recommended that: “Based on the overwhelming wishes of the public, the Commission recommends that no person should hold the office of Prime Minister for more than two (2) five year consecutive terms.”

This call was repeated at the consultations in the current process. In its further report to the Cabinet dated 22nd November 2014, CRAC recommended that term limits should be three (3) consecutive terms as opposed to 2 terms. There was no indication of a reason for the deviation from the expressed wish of the people.

Section 66 of the Constitution provides that whenever the Governor General has cause to appoint a Prime Minister, he shall appoint the Member of the House who appears to him likely to command the support of the majority of the members of the House of Representatives.

In making a person who has already served 3 consecutive five year terms ineligible to be appointed as Prime Minister, and not specifically providing for the circumstance where, an outgoing Prime Minister, who has served for 3 consecutive terms, again wins his seat and is still the member commanding the support of the majority of the members of the House, it opens the door for at least a period of uncertainty before a Prime Minister is named.

One would imagine that political maturity will have to be displayed in such instance, if uncertainty, even chaos, is to be avoided.

(Claudette Joseph is a local attorney-at-law who is associated with Amicus Attorneys)

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