Constitution reform: Unruly horses or reckless gatekeepers

by William Joseph

Constitution Reform of the scope and nature now being contemplated and canvassed in Grenada goes to the very root of building our Grenadian civilisation. Nevertheless, this important national emergency is constrained by the existence of a handicapped democracy and the fact that we have been led into becoming a desperate people, over the last forty years.

These conditions make it very difficult for the identification of pathways to sound judgment and rational conduct especially on the part of some critical players in the society; yet serious efforts towards this end are required and must be undertaken.

Looking at the existing ‘set-up’, one recognises four key players:

I. The people
II. The Constitution
III. ParliamentIV. Political parties, either as seeding the Executive (due to electoral victory) and Opposition (due to electoral defeat).
The intersection point of these entities is marked “interests” which, in turn, condition behaviours that may appear to be irrational or even anti-people. This tends to be so because said interests are often defined in terms of battlegrounds as distinct from opportunities for statesmanship and patriotism.

It is important to note that “the people”, in this context, consists of two sets of Grenadians; those who support political parties and those who do not regard themselves as supporters of any political party.

Whereas sovereignty belongs to the people, the Constitution establishes the Parliament and sets out the procedures by which it may be amended. Specifically, the so-called entrenched/deeply entrenched provisions of the Constitution may be amended only on the basis of certain pre-fixed majorities in the Parliament and at referenda of the people.

Bear in mind here that the ‘governing party’ forming the Executive is, simultaneously, a constituent part of the Parliament (not as party, but as elected MPs), normally in the majority. Common sense therefore tells us that the ‘interests’ of the ‘governing party’ could well be decisive, for good or for bad. Equally, the ‘interests’ of the opposition parties could operate with similar effect.

Since it may be reasonably presumed that the people of Grenada will prefer that which is considered to be “good”, one might expect that the parties will be careful not to ignore the wishes of the people as expressed during organised consultations or elsewhere.

However, it is also well-known that people may be thoroughly influenced by the political parties which they support, for one reason or another, especially under dependency and other ‘Esau nation-type’ conditions.

On the evidence, it is clear that the political parties are extremely powerful, if not dominant, when it comes to Constitution Reform.

Accepting this unfortunate reality, it is suggested that a Protocol be pursued and agreed between the political parties to guide them on the goals, processes and commitments in the area of Constitution Reform.

The traditional menu of competition, confrontation, contention and conflict needs to be set aside for the national good. An opportunity to purposefully amend our Constitution should not be an occasion for political intrigues, grand-standing and gamesmanship. These dispositions do not help in the building of a Grenadian civilisation.

Secondly, it is proper for a Government to assign specific public policy responses to the important concerns of the people. We see this at work with the establishment of a Constitution Review Committee as an “Advisory” body.  Notice that the “Advisory body” model necessarily affords the Executive at least two bites of the cherry; firstly, in deciding what subjects are suitable for the referendum and; secondly, through the vote in Parliament.

Notice also that the Constitution Review Advisory Committee has no mandate to advise the public. Its duty is to hear from the public, assist the public in understanding the issues at hand and to then advise the Government accordingly.

Understand clearly that if a bill fails in the Parliament there can be no amendment of the Constitution, for that reason. Ipso facto, there would be nothing to put to the people in a referendum.

Generally-speaking, a Cabinet wishing to be advised on any matter is not obliged to accept the advice given and may do anything it wishes with that advice. Surely, the advice rendered to the Cabinet by the Review Committee is non-binding. Therefore, the Cabinet is free to add or subtract subjects to the list of recommendations, without reliance on the advice of the Committee.

I would suggest, though, that Constitution Reform must be properly facilitated by Government. However, I would also contend that it is not the kind of horse that a Government should be at liberty to refuse to saddle simply because it may be unruly. The consequence of the approach taken, which is encouraged by the Constitution, is that we are fixed with a real problem which is partisan-political in nature and suffocative of our democracy and the emergence of a viable Grenadian civilisation.

This is the case because there are actors on the national stage, both in Government and in the ‘Opposition’, who are inclined to put Grenada second, preferring and elevating their narrow party interests.

Conceivably, parties might well be prepared to mobilise their supporters to oppose Constitution Reform or actually vote against certain proposed amendments in Parliament, thereby sending a clear message to their supporters regarding their posture at a referendum itself.

It is also conceivable that the Grenada Cabinet could add the six subjects being advocated for, but then proceed to vote against then in Parliament!

Some may think that one who has been lawfully elected leader of the nation for two decades owes the people more than roads and IMANI, in return for that most-favoured treatment. They may tell themselves that the best legacy such a leader could leave his people is a substantial contribution to the advancement of the Grenadian civilisation and that the best area in which to do so is Constitution Reform. Interesting, eh?

An important note needs to be entered at this point. The procedure set out in the Constitution [section 39(5)] calls for a parliamentary vote followed by a referendum.

Based on the letter of the law and understanding the parliamentary law-making process, it is for the Executive to first decide what subjects, in the form of proposed Constitutional amendments (set out in a bill), it is prepared to put before the Legislature.

On this premise, it may become disappointingly clear to the ordinary citizen that there can be no major amendment(s) to the Constitution unless the required majority in Parliament (MPs) give their blessings!

Pay attention to where that leaves the people in the scheme of things! At the referendum, it is the bill, as passed by the Parliament, which is to be voted upon by the electorate. The question arises as to whether it was the intention of the framers of the Constitution that Parliament is to tell the people (electorate) what changes may be made to the Grenada Constitution, as the process is not, constitutionally, triggered by the public.

Clearly, an important presumption appears to be involved here to the effect that a Government will not seek to make major and fundamental amendments to the Constitution without first consulting “the people”.
But that presumption is displaced where a governing party defines “the people” to mean their supporters.

Happily, the relevant provisions in the Constitution manage our democracy in such a way that although an apparent blank cheque is given to Parliamentarians, actual veto power is given to the people.

In these circumstances, Parliamentarians may pass a bill that is not in accordance with the wishes of the people and risk facing a sanction for so doing, if at all, at a subsequent General Election.

The Grenada Constitution Reform canvas may well have been tarnished, if not defaced, by various recent political machinations. One party does not wish to go too far because its brand values holding the prize of state power exclusively; while the other conveniently sees ‘raw meat’ at every turn and chooses agitation as its main course of conduct, though it too may well enjoy wielding state power exclusively! Actually, though undesirable, even our handicapped democracy could produce such results legitimately.

So much of it boils down to a chasm between the parties and the people to the detriment of establishing a worthy Grenadian civilisation.  Consider that a party, especially one forming the Executive, for the time being, may well be prepared to take certain risks with Constitution Reform on the assumption that most people do not decide who to vote for at General Elections on account of such reform issues, unless, for example, they are faced with the prospect of a curtailment or reduction of their fundamental rights and freedoms or attempts to legitimise abuses by the State. In that case, they take comfort from the Vincentian experience where after losing a referendum, Ralph Gonsalves won the subsequent General Elections.

The gatekeepers in our handicapped democracy do have the power to decide whether the horses race or remain in their stables. But if the people want to “go to the races” and to place their bets on particular horses, but are obstructed from entering the park they may well find ways to re-assign those gatekeepers whose conduct appear to them to be reckless.

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