Claudette JosephBy Claudette Joseph

In relation to a Bill to amend the Constitution, Section 39 of the Constitution provides that: (1) two-thirds of the members of the Lower House must vote in favour of it; (2) a period of at least 90 days must pass between the first and second readings in the Lower House; 3) it then goes to the Senate (Upper House) to be debated and voted on a simple majority; (4) it is approved on a referendum by no less than two-thirds of all the people who cast valid votes at that referendum.
Only then does the Governor General assent to the Bill and it becomes part of the amended Constitution. If you are presently registered to vote, you will be eligible to vote on referendum day.

The contents of current Referendum Bills were not discussed with the public before they were brought to Parliament. Considering the present state of Parliament with no opposition, it was important for CRAC to have kept its promise to have a further round of public consultations after Cabinet indicated which amendments it was prepared to proceed with. This would have given the public the opportunity to contribute to the content of the Bills. As was expected, in Parliament, the MPs supported all the Bills as tabled.

Initially, there were eight (8) Referendum Bills. However, on 4th December 2015, only seven (7) Bills were tabled in Parliament. Reason being, one Bill, the Election and Tenure of the Governor General was withdrawn at the last minute. Why Government suddenly withdrew its support for that Bill was never explained.

The people’s proposal since 1985 was that the Governor General should no longer be the Prime Minister’s choice but rather, elected by all the Parliamentarians in an Electoral College of the Lower House and Senate combined. The reason for this consistent call is simple. If the Governor General is elected from among several nominees, he/she would not be serving at “the pleasure” of the Prime Minister. Consequently, independence of the office will be assured.

This was not an isolated instance when in this reform process, the expressed desires of the people were rejected. At page 57 of the 2006 Constitution Review Report, the Commissioners said the following:

“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 again repeated in CRAC’s public consultations. With no reason given, the Bill now presented to the people provides for the Prime Minister to serve three (3) consecutive five year terms, not two.

Again, the Bill referring to a fixed date for elections is another departure from what the people proposed. At page 49 of the 2006 Constitution Review Report, the Commissioners recommended that: “A specific date for the holding of elections should be ENSHRINED in the Constitution”. This call was repeated at the public consultations. The present Referendum Bill, by its name gives the wrong impression that if passed, there will be a fixed date for holding elections. In fact it gives Parliament the OPTION to make an ordinary law (which it can change any time with a simple majority) to fix the date for elections.

If these two proposals were accepted, they would serve to strengthen our democracy by eliminating the conditions where dictators and demigods are bred by enjoying multiple terms in office and, by creating predictability, certainty and stability in the system.

Cabinet’s refusal to go along with the people on these and other issues was a stark deviation from the stated mission of the reform process, to make a national constitution with the tangible input of the people so as to create a bond between them and their constitution and; it certainly did not help to ensure a credible and transparent process creating an atmosphere of consensus.

It is instructive to note that in making these and other recommendations, the 2006 Review Commission said: “We commend them to you (Cabinet) because we strongly believe that our democracy can be improved by their implementation”.

The Government seemed to be operating on a time scale, driven by when the next general elections will be called; apparently not too concerned that there can be no shortcuts to Constitution reform. In fact, the referendum date was set and had to be pushed back several times. This apparent need to have everything rushed was one reason why CRAC and Government failed to ensure that the Bills were circulated to the public for their input before they were taken to Parliament.

We therefore lost the opportunity to refine them so as to end up with the best possible amendments to our Constitution. In the end, some of the Bills quite simply do not improve on what we presently have. Yet, others contain ambiguities and loopholes that in the long run, may not be in the best interests of Grenada.

Was the Referendum date properly announced?

The rush to referendum day was also reflected in how the date was announced.

For the purposes of the referendum, a Constitutional Referendum Bill was passed together with the other Referendum Bills. It became law on 12th August 2016 by publication in the Government Gazette. This new Constitutional Referendum Act 2016 sets out the procedure for holding a constitutional referendum, including how the date is to be announced.

The Constitutional Referendum Act provides for the Governor General to issue a Writ of Constitutional Referendum that will: “appoint the date on which the constitutional referendum shall be held”. In practical terms, as is convention with the announcement of a general election, it was expected that the Prime Minister would announce the date, after consulting with the GG.

So when on July 29th 2016, Dr. Francis Alexis QC, Chairman of CRAC announced that the referendum will be on October 27th 2016, I submit that he lacked the authority to do so in law and by convention.

Firstly, the law was not yet in place. It only came into force on 12th August 2016. Secondly, once in place, the law requires the GG to issue a writ announcing the referendum date. As of now, one month later, no Writ has been issued. Thirdly, had it been the Prime Minister making the announcement, convention would have been followed.

This announcement by Dr. Alexis must have been a first because research shows that the dates for referenda recently held in the Commonwealth (Scotland 2014, Bahamas 2016 and The United Kingdom 2016) were all announced by the Prime Minister or his equivalent. The above notwithstanding, the GG may well regularise this anomaly by confirming the date on issuance of the Writ.

Another issue is that CRAC is not a body with legal authority as such. By name and nature, it is an ad hoc committee set up to consult with the public and to advise Cabinet on matters of constitution reform. That CRAC would “announce” the referendum date came as a surprise to many. That not even one member of Cabinet participated in the announcement was equally surprising.

It could not be that Cabinet wants to take a hands-off approach in an attempt not to politicise the referendum. It has already done so by manipulating the process so that the people’s desires were ignored in many respects.

If we all agree that there should be Constitution reform, why the need for this rushed approach? Why take shortcuts so that proper procedure is ignored leaving us with a flawed process that is not as transparent and credible as it should be?

Why compromise the overall quality of our supreme law, the Constitution, by not making sure that the changes to it are as complete and refined as possible? If it is that there is some politically strategic reason for insisting on a deadline by when the referendum must be held, so that political mileage can be gained, then I submit that the people will have the final say.

(Claudette Joseph is an attorney-at-law attached to the law firm AMICUS Attorneys)

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