Grenada’s constitutional reforms: Referendums and limits to progressive reforms (part II)

Part I of this contribution provides a background to the proposed constitutional reforms, which will be subject to a referendum on 24 November 2016, and discusses the proposal to impose term limits on the position of the Prime Minister and the appointment of a Leader of Opposition, even in instances where a single party wins all parliamentary seats. This part focuses on the remaining proposed reforms intended to enhance the integrity of the electoral process, guarantee gender equality and vest ultimate legal sovereignty in a regional appellate court, the Caribbean Court of Justice (CCJ),  which will replace the Judicial committee of the Privy Council (JCPC). It also notes the decision to leave out more progressive reforms, such as the abolition of the Monarchy, a wholly nominated second chamber, and the death penalty, perhaps due to pragmatic concerns that they may not receive the requisite super-majority popular approval.

Creation of an Elections and Boundaries Commission

The ‘winner-takes-all’ nature of the ‘first past the post’ electoral system and the opportunities for political patronage that come with elected office mean that Commonwealth Caribbean elections are intensely contested affairs. On several occasions, this has resulted in widespread public disorder, violence and, even, death, as occurred in Jamaica in 1980. There have also been several well-documented instances of electoral rigging: in Antigua and Barbuda, for example, under the Bird dynasty, and in Guyana during the Burnham era.  Thus, most countries in the region have established independent Election and Boundaries Commissions which are responsible for the registration of voters and the conduct of elections to ensure the overall integrity of the electoral process.

Grenada is one of the few remaining countries in the region to entrust responsibility for the conduct of elections to a lone Supervisor of Elections appointed by the Governor General. The Prime Minister’s influence over the Supervisor of Elections, who is appointed and removed on the recommendation of the Prime Minister, has given rise to the suspicion that the Supervisor of Elections may also be indirectly under the influence of the Prime Minister and cannot, therefore, be trusted to be truly impartial. In the neighbouring island of St Kitts and Nevis, for example, a delay by the Supervisor of Elections in announcing the outcome of the elections in February 2015, described by that most eminent Caribbean commentator, Sir Ronald Sanders, as a ‘fiasco’, was blamed by some commentators on the Supervisor’s close relationship with the Prime Minister and the latter’s desire to cling on to power for as long as possible.

At first blush then, it would appear that the proposal to establish an Elections and Boundaries Commission, comprising two members each from the government and the main opposition with an independent Chairman, appointed by the Governor General, is intended to address a perceived lack of impartiality.  To complicate matters, however, there has been some local difficulty as a result of a dispute between the Prime Minister and the then Supervisor of Elections, Judy Benoit, who was removed from office by the Governor General shortly after the 2013 elections despite having been commended by the Organisation of American States for her handling of the conduct of the elections. The removal of the Supervisor of Elections is now the subject of judicial review proceedings, but in fairness to the Government, it should be noted that the Constitutional Review Commission (CRC) 2006 Report had recommended the creation of an Election and Boundaries Commission long before the dispute between the Prime Minister and the Supervisor of Elections arose.

Fixed Date for Elections

At present, the power to decide when to hold a general election is vested in the Prime Minister who, subject to a parliamentary limit of five years, may request the head of state to dissolve parliament and to hold an election whenever the Prime Minister adjudges it politically expedient to do so, i.e. whenever the Prime Minister calculates that s/he will have the best chance of securing victory in an election. Until recently, this had also been the position under the British version of the Westminster model. However, following the formation of a collation government in the UK in 2010 and to prevent the Conservative portion of the coalition cutting their Liberal Democratic partners adrift by calling an early election, it was agreed to enact a Fixed Term Parliament Act which prohibits the Prime Minister from calling an election within five years, unless the government is defeated by a majority of MPs on a vote of no confidence, or two thirds of MPs support a motion to dissolve parliament before the expiry of the fixed term.

As we have seen above, there have already been two instances in Grenada of Prime Ministers abusing their power to request a prorogation of parliament to avoid defeat on a motion of no confidence and then to request a dissolution of parliament at a time of their choosing.  The Fixed Date for Elections Bill seeks to address this problem by providing for a fixed date for elections which must not exceed five years following the most recent dissolution of Parliament. The Bill, however, differs from its UK counterpart in that the only circumstances in which Parliament may be dissolved sooner than the fixed date is if there is a successful ‘no-confidence’ motion in the government.

Rights and Freedoms

With one exception, the independence constitutions of all of Britain’s former colonies in the Caribbean included a Bill of Rights which was largely modelled on the European Convention on Human Rights.  The exception was Trinidad and Tobago where the Bill of Rights was based on the Canadian Charter of Rights and Freedoms.

The proposed reforms to Grenada’s Bill of Rights are an odd miscellany of first, second and even third generation rights. In addition to enhancing first generation rights, such as the rights of citizens under arrest to communicate with a lawyer, the kinds of conduct which would constitute discrimination have been expanded to include disability, ethnicity, language, religion and ‘social class’, though not sexual orientation.  Under the reformed Bill of Rights, there would be a right to vote and freedom of expression would include freedom of the press. There would also be protection of children ‘generally’, whether born in or out of wedlock, and a guarantee of publicly funded education to all children under the age of 16 years and those with disabilities under the age of 18 years. In addition, gender equality would be guaranteed ‘in all spheres of life’. Since constitutions have traditionally defined  relations between the state and its citizens, this extension of the guarantee of gender equality to ‘all spheres of life’ is relatively novel, though a precedent can be found in section 9(4) of the South African Constitution which imposes a duty on private individuals not to discriminate against others on the same comprehensive set of grounds that applies to the state. It is further proposed to establish non-enforceable directive principles regarding the protection of the environment and the establishment of an enabling environment for persons who are physically, visually, aurally and or mentally challenged.

Already the promise of gender equality under the proposed new Constitution has raised concerns that it is a backdoor which will lead to the decriminalisation of homosexuality and eventually to gay marriage. This has resulted in the referendum being postponed for a month in order for ‘the education process to be completed’. Such concerns are not unique to Grenada. They were also uppermost in the minds of those who drafted the Jamaican Charter of Rights and Freedoms who were careful to ensure that the Charter's equality provisions could not be interpreted by the courts as impliedly including sexual orientation, by using the rather inelegant phrase 'being male or female' as one of the prohibited grounds of discrimination, rather than the much simpler term, sex.  Though it is impossible empirically to verify, it is likely the same underlying concern about gender equality leading, illogically but inexorably, to ‘same-sex marriage’ contributed to the failure of a referendum in the Bahamas to amend its Constitution to prohibit discrimination based on 'sex’. No amount of reassurances by the Government were sufficient to satisfy religious leaders, such as Pastor Mario Moxey, one of the leaders of a group known as Save Our Bahamas, who opposed the amendment ‘because we feel that it opens the door to same-sex marriage and, as a result of that, it is a moral issue’.

The Caribbean Court of Justice (CCJ) and Related Matters

Since its inauguration in 2006, only four out of the twelve independent countries in the region have ratified the appellate jurisdiction of the CCJ: Guyana, Barbados, Belize and, most recently, Dominica. Grenada’s sister island in the Eastern Caribbean, Antigua and Barbuda is due, shortly, to have its own referendum on whether or not to replace the Judicial Committee of the Privy Council (JCPC) with the CCJ as its final court of appeal and its political leaders will, doubtless, be watching the outcome of the Grenadian referendum with a keen interest.

The advantages and disadvantages of replacing the JCPC with the CCJ have been very well rehearsed in countless newspaper and journal articles since the idea was first mooted in 1992 by the West Indian Commission in its report, Time for Action, and there is not the space or time to consider them in detail here. It is fair to say, however, that central to the case against the CCJ was the fear that its judges would not be politically independent.  The virtue of the JCPC in the eyes of those who argued against replacing it with the CCJ was the fact that the region’s politicians had no say in the appointment of its judges or their terms and conditions of service and could not, therefore, bring political pressure to bear on the Court.  Now that the CCJ has been functioning for a decade with absolutely no evidence of political interference, it is possible that it has finally earned the trust and respect of those who had originally opposed it. The referendum in Grenada will be particularly interesting because it will be the first time that support for the CCJ has been put to the test in a referendum; no referendum having been needed when Barbados, Guyana, Belize and Dominica signed up to the CCJ's appellate jurisdiction. From the point of view of the CCJ’s supporters, however, Grenada is the worst possible location for such a test since the JCPC is deeply entrenched in Grenada’s Constitution and it will require the support of a two-thirds majority of voters in the referendum before the JCPC can be replaced by the CCJ. 

Compared with the substitution of the CCJ for the JCPC the 'related matters' are of relatively little constitutional significance. They include renaming the Supreme Court in Grenada, ‘The Eastern Caribbean Supreme Court’; entrenching a Code of Conduct for public officials; and entitling public officials to swear allegiance to the state of Grenada instead of the Crown.

What is missing?

There are a number of potential amendments to the Constitution which are conspicuous by their absence from the seven Constitution (Amendment) Bills.  For example, the report published by the 2002 CRC had proposed that Grenada should become a republic with a President as head of state in place of the Queen. Clearly, however, the most recent CRC concluded that there was not sufficient public support for such a measure, a similar proposal having been rejected by voters in the referendum held in St Vincent and the Grenadines in 2009.

The report of the 2002 CRC also recommended that the existing Senate, which was composed entirely of nominated members, should be abolished and that Grenada should henceforth have a unicameral parliament comprising a National Assembly and a state President. As the late Professor Simeon McIntosh, a distinguished Caribbean jurist and formerly Deputy Chairman of the 2002 CRC, observed: ‘the history of a nominated Senate in West Indian politics, an upper second chamber, supposedly modelled on the British House of Lords, has been one of remarkable failure. Constitution Review Commission failure’. This recommendation did not, however, find its way into the package of reforms recommended by the current Constitutional Reform Advisory Committee.

It is also notable that the prohibition against discrimination on the grounds of sexual orientation, which featured in the draft Constitution prepared by Professor McIntosh after he had resigned from the 2002 CRC, has also been omitted from the present package of reforms. Finally, it should be noted that amongst the measures intended to ‘expand the fundamental rights and freedoms of individuals’ no mention is made of any proposal to amend the saving laws clause contained in section 5(2) of the existing Constitution, which preserves the constitutionality of the death penalty.

Conclusion

The late Professor McIntosh believed that Grenada’s new Constitution would serve as a beacon for a new kind of Caribbean constitutionalism, more in tune with the country’s independent status and with contemporary human rights norms, and it could be argued that the proposed amendments fulfill at least some of these aspirations. However, the retention of both the Queen, that most visible symbol of colonialism, and a nominated second chamber, such a despised feature of colonial rule, is hardly in keeping with the country’s independent status. Moreover, the immunisation of the death penalty from constitutional challenge and the denial of equal protection under the law to gays and lesbians hardly speaks the language of contemporary human rights.

In reality, however, the absence of these more progressive amendments most likely reflects the CRC’s calculation that the Grenadian public are not yet ready to embrace a more radical constitutionalism and that it would not have been possible to secure the two-thirds majority of voters in the referendum necessary to secure such reforms. Certainly, the history of constitutional referendums in the region suggests that it can be difficult to persuade voters to support even the most modest of constitutional reforms. Thus, to date, only one government in the region has succeeded in winning support in a referendum for its constitutional reforms and that was the government of Forbes Burnham in Guyana in 1978 in a referendum which was widely believed to have been rigged. As we have seen, the two most recent referendums to take place in the region, in St Vincent and in the Bahamas, have both ended in failure for their respective governments. If the Government of Grenada, therefore, succeeds in securing a two-thirds majority for its reforms, especially in the face of the Opposition National Democratic Congress’s refusal to support the reforms and the lack of support from certain of its own ministers for such key reforms as fixed date elections and limiting Prime Ministers to three terms in office, this will represent a major achievement even if it falls somewhat short of what had been hoped for when Grenada began the process of reforming its Constitution.

Derek O’ Brien is a Reader in Public Law at Oxford Brookes University. He has published numerous journal articles on Caribbean constitutional law, and recently completed a monograph on the Constitutional Law Systems of the Commonwealth Caribbean for Hart Publishing. He is currently working as a co-editor, with Richard Albert and Se-shauna Wheatle, on The Oxford Handbook of Caribbean Constitutions, which is due to be published in 2018.