Recently, persons have asked the public to vote no on the proposed constitutional changes in the upcoming referendum. Among these persons is Sen. Ray Roberts, labour representative, who takes issue with government’s failure to address pension related issues for public workers. In his view, a no vote will pressure the government to move on this obviously important issue.
Another ‘no-voter’ is former Attorney-General, Mr. Jimmy Bristol. In an MTV News video outlining his reasons, he draws a distinction between constitutional ‘reform’ and constitutional ‘amendment’ (I’m still scratching my head), says that the reform committee is ‘tampering’ with the constitution, and that the process is really a disguised attempt at replacing the Privy Council with the CCJ as the final court of appeal. On this last point, how ‘disguised’ can it be when that proposal features prominently in national discussions, in various consultations and in the national Gazette? When – as with all the other proposals – it is open to a national democratic vote? He makes the point that there was no consensus at the Grenada Bar for the Privy Council’s replacement. But, why should a matter which potentially affects every single Grenadian, be hinged on a green light from a legal minority, the same minority which has a right to vote on it, along with every other qualified Grenadian?
Those objections aside, many people take issue with the lack of transparency in the constitutional reform process; I partially agree (lest I be called an NNP propagandist). To illustrate, cabinet has rejected at least one proposal submitted by the committee – a proposal that would allow a Member of Parliament to be removed from their parliamentary appointment by public vote (for bad-behaviour or under-performance in public office) , before the end of an election term. Cabinet did not provide reasons for why this proposal was rejected. Cabinet might say that the committee is an ‘advisory’ committee – that they advise but do not mandate – but this does not change the fact that rejecting proposals by the committee, without providing explanations, is not transparent.
The History of Constitutional Reform
Grenada received its current constitution as a parting gift from old mother Britain at independence; one which the people of soon to be independent Grenada had no say in. This fact reduces the legitimacy of the current constitution in the opinion of some persons, including the late prof. Simeon McIntosh, a Grenadian former Dean of law at the UWI and also a former constitutional commissioner.
Since our independence in 1974 this is the 4th attempt to birth a constitution that is truly ours. the previous attempts in 1984, 2002 and 2013 stalemated for various reasons, the last one (in 2013) died along with Prof. Simeon McIntosh who was spearheading it, may he Rest In Power.
The Current Reform Process
Part 2 of the Constitution lays the parliamentary procedure for changing the constitution. It mandates that there be a 2/3rds majority parliamentary support as well as a 2/3rds majority national support (hence the referendum). Importantly, the committee and parliament has organised the referendum such that the issues will be voted on more or less individually, eliminating the risk of throwing the baby out with the bath water, or having to drink the fly with the juice.
Parliament gets its power to make provisions for the referendum from section 39(5)(c) of the current constitution. However, the constitution does not prescribe what the general reform process should be. It does not prescribe who should establish a reform committee, who should be on the committee, or anything about a reform committee at all. In fact, beyond the current constitution giving parliament the power to manage the referendum, and the Referendum Act which sets the technical requirements (like timelines), there is nothing which establishes protocols for a constitutional reform process.
In fairness to the government, they have assembled a commission which diversely represents the major national sectors and interests. The government has a seat, the opposition HAD a seat (they pulled their representative from the committee last year), civil society has a seat, the Grenada Bar has a seat, the OECS Bar has a seat, the business sector has a seat, the Min. of Youth has a seat, the Min. of Legal Affairs has a seat, the Media Workers Association has a seat, Carriacou and Petite Martinique has a seat, the churches have two. Also in fairness to the government, despite the claims by some that the reform process carries an NNP agenda, at least 2 of the proposals specifically favour the current opposition. These are (1) the proposed term limits for the Prime Minister, and (2) the proposal that would ensure there is always an official leader of the opposition in the Lower House (usually occupied by persons winning constituency seats), even where the opposition has won no seats (as is currently the case). In other words, this proposal secures the place of the leader of the opposition in the House of Representatives as of right.
Some people, including leader of the Opposition, Sen. Nazim Burke say that there has not been enough discussions or consultations on constitutional reform. I also partially agree. However, I reject the attempts to heap all blame for this on the government or on the reform committee. In 2014 alone there were at least 50 public engagements by the committee islandwide. These have been advertised on TV, radio, newspaper and social media. Some of these have been call in TV and radio programs. There were also consultations with the Grenadian diaspora in the USA. Video clips from the majority of local town-hall consultations show poor attendance. Recently on my facebook feed, I have seen much more commentary from Grenadians about the US presidential elections, than about Grenadian constitutional reform. The sad truth is, many people don’t care about constitutional reform, neither do they care about understanding or engaging the process. Forget bringing the horse to the water, the water is being brought to the horse(s); the horses cutting style.
What’s in a Constitution?
A constitution, simply put, is the Supreme law of the land. It sets out the principles according to which the State of Grenada is governed. To illustrate, it establishes our geographic territory, the name of the state and the procedures for governance and making laws. It also establishes the high public offices and the rules around them. In short, it is the single most significant legal document in Grenada.
Importantly, the constitution also establishes the rights people in Grenada have, and provides a mechanism for getting justice when rights are violated. Some will re-call the recent pensions case in which the high court of Grenada ruled that the Pensions Act was unconstitutional because it fell below the constitutionally protected standard of pension (one might loosely say a constitutional ‘right to pension’). The Act disqualified public workers who began service after 1983 from pension. Some may re-call the Gairy case in which the daughter of Sir Eric Gairy, brought an action to recover compensation for the confiscation of some of Gairy’s land by the People’s Revolutionary Government. The Privy Council ordered compensation, holding that the confiscation violated property rights guaranteed by the Constitution. The Constitution also guarantees a right to work. It is this right to work which public workers rely upon to take the government to court when they feel they have been victimized by being fired or displaced. These are just a few of the rights, guaranteed by the constitution which people rely on to challenge the government.
It is also important to understand what a constitution is not. Sen. Ray Roberts, in explaining his no-vote says that the commissioners should have been instructed by the Prime Minister to deal with the issue of pensions. This exposes a misconception of what a constitution does. Nothing in the proposed amendments interferes with the ‘right to pension’ (loosely speaking) guaranteed by the current constitution. If anything, the issue of pensions needs to be addressed through ordinary legislation in the parliament – which the goodly senator is a part of. The non-payment of pensions and the lack of an effective pension scheme are essentially legislative matters, that isn’t the constitution’s or the committee’s responsibility to fix. Perhaps Sen. Roberts can sponsor a bill for an amendment of the Pensions Act and rally the support of his parliamentary colleagues. That is a much more practical way of getting the change he desires. A constitution is concerned with big principles of broad application. It does not seek to regulate the smaller details of public life. Ordinary legislation can be thought of as the hench-men sorting out these smaller details.
No-Vote as Protest
I believe that Senator Roberts is a decent men with good intentions. I distinguish him from the feisty rabble-rousers claiming that the proposals don’t offer “real change” – without suggesting what that would look like constitutionally. At the heart of Sen. Roberts’ no-vote, I get the sense that he is protesting, not any of the proposals per se, but governmental inefficiencies. He is encouraging No-vote as protest. This is not a new tactic.
In 2009, St. Vincent and the Grenadines underwent a similar constitution reform process. The opposition party – the NDP, led a heavy campaign asking people to vote no. None of the arguments had anything to do with the actual proposals themselves. In fact, part of their campaign was to produce video shorts with snippets of people explaining why they were voting no. None of the explanations critiqued the proposals. They ranged from “people suffering”, to “government corruption”, to how expensive the process was. On that last point, some said that the amount spent – 4.4 million dollars – was a waste of money. I can’t help but call out the circular irony here. The same people who complained that spending 4.4 million dollars on constitutional reform was a waste of money, made sure it was a waste of money by voting no. In a tragic waste of money, resources and more importantly, opportunity to reform the country’s founding principles – including its human rights, the no-vote succeeded 55.29% to 43.17 %.
Like the government of St. Vincent in 2009, the government of Grenada has also spent a ton of money in this constitutional reform process; at least 1.5 million dollars. There has also been a ton of money and technical assistance provided by organisations like the United Nations Development Program (UNDP). Like St. Vincent, this constitutional reform is an expensive but excellent opportunity to update our archaic but supreme law.
I support people’s right to protest, especially when there are real grievances – like the pensions issue, which I agree needs to be addressed. However in the context, there are more useful ways to do so; ways that that do not frustrate a process which is very expensive, long overdue and which stands to bring tremendous benefits to the people of Grenada.
Any invitation to vote-no arbitrarily is an invitation to squander resources and opportunity. On October 27th, reject the no-vote naysayers. Let us not cut off the nose to spite the face.
Richie Maitland – Human Rights Lawyer & Grenadian
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