Constitutional Reform in Grenada – a perspective from Trinidad and Tobago

The second half of 2016 has certainly turned out to be quite an interesting one in terms of international politics. Earlier this year, during the month of June, I penned a letter to the Editor of the Trinidad Guardian newspaper touching upon the looming Brexit referendum in the United Kingdom.

We all now know the outcome of that referendum and the fact that the Theresa May-led Government is now taking the necessary steps to ensure that the UK smoothly withdraws itself from the EU Membership.

Transiting the UK out of the politico-economic bloc has turned out to be a thorny task, especially since their High Court ruled earlier this month that only the Parliament could trigger Art. 50 of the Lisbon Treaty which would eventually make Brexit a reality. The UK Government has confirmed that they would appeal the Supreme Court ruling.

Up next- the US Presidential elections on November 8, which saw Donald Trump rise to the apex of power as President-elect of the largest economy in the world. Most of the pollsters did not predict such a victory and it was envisaged that the Democratic nominee, Hillary Clinton, would have triumphed, albeit by a very small margin.

The world now awaits with bated breath not only on when and on what terms the UK will exit the EU, but also on the type of domestic and foreign policy to be administered under a Trump administration.

But there is something else that falls within our radar before 2016 finally draws down its colourful curtains.

Just like the UK did in June, on November 24, the people of Grenada would also vote on a referendum, except this time it would be on seven Bills that seek to amend their Constitution.

This referendum is quite broad-ranging and persons would be called to vote on issues such as, inter alia, – changing the name of the State (from Grenada to “Grenada, Carriacou and Petite Martinique”), providing fixed date elections, appointing a leader of Opposition (if one party wins all the seats in general elections), fixed terms of office for Prime Ministers (a Prime Minister can serve up to three consecutive terms in office.

However he/she may skip a term after two consecutive terms and become a Prime Minister again), expansion of the Fundamental Rights and Freedoms (e.g. protection against discrimination due to disability, right to speak to a lawyer, intellectual property rights and the protection of the environment and the adverse effects of climate change). Last, but definitely not least, includes the vote to substitute the Caribbean Court of Justice (CCJ) as the final Court of appeal for Grenada in place of the Privy Council.

Now, this is just a brief examination of some of the issues which the people of Grenada would vote upon come November 24. In fact to critically examine each and every detail would be akin to writing a complete dissertation on the proposed reforms and its constitutional impact on our next-door neighbour.

One thing which is certain, is that Grenada is taking a bold, yet innovate approach in the sphere of constitutional law and constitutional jurisprudence. Ever since I was a teenager I have been hearing politicians speak of constitutional reform in Trinidad and Tobago. Upon reading about Grenada, I asked myself – is there truly a need for Trinidad and Tobago to reform our 1976 Constitution?

I am almost certain that most constitutional law experts back home would agree with me and say – yes. The question then is how do we go about reforming our Constitution? In Grenada, a Bill to alter or modify a section of the Constitution must be approved under a referendum (s. 39(5)(c) of their Constitution).

Unlike the Grenadian Constitution, Trinidad and Tobago’s Constitution does not provide for a referendum. To abolish appeals to the Privy Council under section 109 of Trinidad and Tobago’s Constitution would require a special majority by the votes of not less than three-fourths of all the members of the House of Representatives and not less than two-thirds of the members of the Senate. Thus in order for the CCJ to become a reality in Trinidad and Tobago, it would require the support and cooperation of the Government and Opposition members in the Parliament.

After more than eleven years since its inauguration, I must admit that I am disappointed that the CCJ is not the final Court of appeal in my own country. Not only is the Court headquartered in Port-of-Spain, Trinidad and Tobago also financially contributes towards the operation of the Court.

Putting the location and costs aside, the argument for our region to claim full sovereignty and judicial autonomy has been rehashed from time immemorial. It is often quoted that as far back as the year 1901 an editorial article in the Jamaican Daily Gleaner expressed the view that the final appellate Court in the form of the UK Privy Council, was ‘out of joint’ with the realities of time.

A century and five years shy of a score later, only a handful of Caribbean countries have heeded to the caveat of that Jamaican editorial and have abolished appeals to the Privy Council paving the way for the CCJ. These countries are Barbados, Guyana, Belize and the Commonwealth of Dominica. Moving forward to more modern times in the 21st century, 2003 to be exact – Lord Hoffman, a Privy Councillor, while on a visit to Trinidad expressed to local lawyers at a Law Association dinner that “a Court of our own was necessary”.

He further found it “extraordinary” that for nearly nine years he was sitting as a member of the final Court of appeal for an independent Republic of Trinidad and Tobago, and this was the first time that he ever “set foot upon the islands”. This confession reeks of the colonial days if you ask me.

For the people of Grenada this referendum is critical. I say this because they now have an intimate role in shaping the supreme law of their land and ultimately their own sovereignty. The Spice Island has the perfect opportunity of producing a vibrant Constitution which has the potential of being more innovative than any other Constitution in the Caribbean region and, if I may dare say, the Commonwealth of Nations.

For instance seeking to protect in its Constitution the environment from the adverse effects of climate change is consistent with the global agenda of today’s world. One other interesting modern example that comes to mind is the South African Constitution which enshrines a right to an environment that is not harmful to an individual’s health or well-being (s. 24(a)).

In my opinion, enshrining such a ‘green’ right in the Grenadian Constitution is a positive step. Debating an environmental right under its Constitution however does not come as a surprise since Grenada is one of the CARICOM countries which ratified early the new UN Paris Agreement on climate change.

Grenada should therefore embrace this opportunity wholeheartedly. It is my hope that just like the Brexit referendum and the US elections, Trinidad and Tobago pays close attention to what is transpiring in Grenada. It is activities such as these that take place in our own ‘backyard’, if examined carefully, can play an invaluable role in the development of our own society.

If we are therefore serious on constitutional reform we should observe what our brothers and sisters are doing just slightly north of us. For my own sake, I do yearn that Grenada breaks free from one of the final vestiges of colonialism and votes in favour of fully adopting the CCJ.

Justin Sobion
Attorney at Law

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