CONSTITUTION REFORM: THE PROCESS & THE ANNOUNCEMENT OF REFERENDUM DATE – PART 1

Claudette Josephby Claudette Joseph

 

Since independence, successive governments have embarked on processes intending to conclude with reform of the Grenada Constitution. The main argument being that the people of Grenada was not sufficiently involved in the formation of the current Constitution so that, there isn’t a sufficient bond between the people and their Constitution.

In more recent years, others have argued that Constitution reform is needed to bring the Constitution more in line with modern constitutions on issues such as gender equality and protection of the environment.

Prior to the current process, there was the Constitution Review Commission of 1985 headed by Sir Fred Phillips, the 2006 Constitution Review Commission of 2006, first headed by Dr. Nicholas Liverpool and then Judge Lyle St. Paul and the 2010 Constitution Reform Project headed by late Prof. Simeon Mc Intosh.

That is not to say that the 1973 Constitution Order has not served us well since independence. Indeed it has. The Constitution is the only instrument that imposes certain checks, balances and controls to protect the people from abuse of State power. As the supreme law of the land, the Constitution is the only vehicle through which the people can challenge the State by taking it to Court when their guaranteed rights and freedoms are infringed upon, or when Parliament passes laws that are inconsistent with it. We therefore owe it to ourselves and to future generations to jealously guard and vigorously defend our Constitution.

No effort should be spared or shortcuts taken when dealing with the question of reforming our Constitution. Any changes to our Constitution must redound to the deepening and strengthening of our democracy and must bring social, political and economic benefits to the people.  The matter of Constitution reform is therefore everybody’s business and it is serious business.

On 16th January 2014, the Constitution Review Advisory Committee (“CRAC”) was set up by Prime Minister Dr. Rt. Hon. Keith Mitchell. It comprised 14 members representing various stakeholder groups and organisations, including the two main political parties in the country.
Headed by Dr. Francis Alexis QC., CRAC’s mission was stated as:
“to engender an environment conducive to reform of the Grenada Constitution Order 1973, with the direct consultation of, and participation by, the people of Grenada and thus make a national Constitution which has the tangible input of the people, so as to build better bonding between the people and the Constitution” At the launch of the CRAC, Prime Minister Mitchell and Sen. Nazim Burke, leader of the opposition party, NDC, both expressed their support for Constitution Reform; and while many Grenadians will also support Constitution reform most share the view that we must not embark on and persist with a process that is flawed, tailored to the convenience of politicians and manoeuvred largely to pander to the emotions of the people, while lacking sufficient input from them or not truly reflective of their desires and aspirations.
CRAC’s mandate was to “continue the consultative process of Constitution Reform leading ultimately to a Referendum on the Grenada Constitution”, so that CRAC’s mission could be accomplished.

Part of CRAC’s mandate was to review the reports of the earlier Constitution Reform Commissions, have further consultations with the public and make recommendations to the Cabinet based on the findings of those earlier Commissions and the further public consultations.

In his Report to the Cabinet dated 9th July 2104, Dr. Alexis noted at paragraph 4.2., that a “primary function of the Committee is to provide oversight to the process of Constitution Reform so as to ensure that the process is transparent and credible, creating an atmosphere of consensus”.

Was the process adopted by CRAC (and the Cabinet) transparent and credible and did it create the desired atmosphere of consensus?

Within 3 weeks of operation, CRAC assessed the prior reports and compiled a list of 21 recommendations for Constitution reform from them. Between 26th February 2014 and 30th June 2014, it held 25 public consultations. The largest number of persons attending any one consultation was 120, with some sessions having as few as 5 attendees.
In total, no more than 750 people were reached at those consultations.




After combining the recommendations of the prior commissions with those coming out of the consultations, there were a total of 25 recommendations for Constitution Reform. Rather than submitting all 25 recommendations to Cabinet for consideration, CRAC devised a voting methodology to decide which recommendations would be submitted to Cabinet and which would not make the cut. The rationale for voting on which ones would be recommended to Cabinet as opposed to sending all to the Cabinet as desired by the people was not disclosed.

The voting process adopted was itself wrought with difficulties. On none of the recommendations did all 14 representative bodies vote. The highest number casting votes were 12 and lowest, 4.  Although in any Referendum, voters will be asked to vote either “yes” or “no” on each item, with CRAC’s method, the representative bodies were asked to vote
“yes now”, “yes later” or “no”. This appears to assume that shortly after this Referendum, there will be a second referendum that can accommodate the “yes later” votes. Of course, that is not the case.

Further, it appears that representative bodies were not given enough time to consult with their membership before voting, because the relevant form was only emailed to members the day before voting. A three (3) day extension was given but no system was put in place to ensure that members were voting based on the position of their representative bodies as opposed to their personal views on each of the items.

After the vote, 12 of the 25 distilled recommendations were submitted to Cabinet. The others, though coming from the people, did not make the cut. Of the 12 sent to Cabinet, only 2: the Caribbean Court of Justice and the Elections and Boundaries Commission could be considered substantial enough so as to result in some real social, political or economic benefit to the people. Some may argue that the change to the Name of State was also a substantial recommendation. The others were largely inconsequential such as: changing Chief of Police to Commissioner of Police and adding “e” to “Petit” Martinique.

The public became aware that recommendations were submitted to Cabinet when the Minister of Legal Affairs announced to the nation that Cabinet had accepted the recommendations!

Public outcry and an address to the nation by Sen. Nazim Burke caused the CRAC to hold its final and best public Consultation at the Trade Centre on October 15th 2014. That one event had more attendees than all of the other 25 consultations combined.

Following this consultation, six (6) additional items were submitted to the Cabinet for consideration. Interestingly, none of these met the CRAC’s voting threshold although they reflected the desires of the people. These 6 were: a 2 term limit for the Prime Minister, a fixed date for elections, the right of recall, proportional representation/Leader of the Opposition at all times, election and tenure of the Governor General and a unicameral chamber of Parliament as opposed to upper and lower houses. Of these, none were original to the NDC as is commonly believed. All were contained in the reports of the earlier commissions and raised at CRAC’s consultations.

Of the 6 additional items, Cabinet eventually accepted only one (1): Leader of the Opposition as recommended by the people. Three (3): the right of recall, the unicameral chamber of Parliament and the election and tenure of the Governor General were completely rejected; and two (2), terms limits for the Prime Minister and fixed date for elections were accepted with modifications.  This goes to the heart of the question of whether there was a transparent, credible and consensus based process.

At para. 18.1 of the July 9th Report to the Cabinet, CRAC said the following:
“Once Cabinet reaches Conclusions on what subjects should be taken forward to the Referendum, the final round of consultations would commence. Focus would thence be on informing the public of those subjects, explaining those subjects and seeking to persuade the public to vote in support of those subjects at the Referendum.”

Once Cabinet indicated which of the recommendations it accepted and which it rejected, CRAC drafted the Referendum Bills and submitted them to the Attorney General for presentation to the Parliament. No final round of consultations took place. Instead, the referendum Bills were finalized, tabled in Parliament and the first reading took place on 4th December 2015, thereby triggering the referendum process without the people even knowing what the Bills contained.

In Part II, I will address the process adopted in taking the Bills through Parliament and the announcement of the Referendum date by CRAC in the context of a credible, transparent and consensus based process.

(Claudette Joseph is a local attorney-at-law and partner in the law firm of Amicus Attorneys on Upper Church Street, St. George’s)

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