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Commentary: Grenada Constitutional Reform: Objectivity is required
Published on March 19, 2014 Email To Friend    Print Version

By J. K. Roberts

The government and people of Grenada are common on the need to reform their 1974 independence constitution. However, they are not in common at least on the specific issues to be reformed and, moreover, there would be much disagreements on the approach for the reform. Anxiety should also mount about the related costs and consequences of a new constitution, as well as about the transitional period for effecting the new constitution and the retrospective enforcement of particular clauses thereof.

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J. K. Roberts is not an expert on the professional disciplines highlighted in his writings, but sees himself as having keen and passionate interest in public policies’ advocacy and analysis. He is a ‘premature retiree’ of the public service of Grenada, the author of two books (“Into The 21st Century”, 1995, and “Management Practices in The Public Service of Grenada”, 2011) and the founder of a civil society organisation called National Initiative for Prolific Policies (NIPP Grenada Inc.) for well over a decade and a half.
Unless this situation is properly analysed and managed, constitutional reform will bring prolonged disappointments, disgruntlements and disturbances. There is, therefore, the urgent need for formally constituting an opposition panel and formally requesting an observer mission to foster confidence in the process; engendering a credible referendum and a rewarding reform.

Confidence and comfort must never be exercised for the reform on the basis that virtually all local stakeholders share strong sentiments for the reform, the Constitution Reform Advisory Committee comprises a wide cross-section of representative bodies including political parties and external dignitaries, regional professionals and institutions endorse the reform and that the Grenadian Diaspora embraces the reform.

International dictates or stipulations for the reform must also not be carelessly taken for granted or taken as morality; no matter whether or not those are of doing business, human rights, or governance and aid. An opposition panel, particularly on behalf of the masses, must ever be astute and vigilant to bring objectivity and meaning to the process.

Despite the laudable reasons and recommendations advanced for constitutional reform, the claimed public consultations in the number of constitutional reviews from 1985, the apparent tremendous support for the reform and the broad-based multipartite sectoral advisory committee spearheading the final phase towards a national referendum, it is only too logical, sensible and fair to have two prominent sides actively promoting their cases on the reform and thereby generating great public interest and participation in the process.

The government (or rather, the political administration) as the proponent would have its narrow agenda capitalized on by persons who also have their own self-ambitions. The masses must be alternatively represented outside of the advisory committee, by an official instrument in the form of an opposition panel, which should not be of any additional financial burden on the state. The nation (or rather, the general public) has a lot at stake to lose based on the outcome of the referendum, as do the politicians and their institutional persons; but in this decisive exercise it must be ensured that Grenada and Grenadians win, whether the reform is successful or not.

The methodology of the government towards the reform must be revisited to reflect the role of an opposition panel which would complement the advisory committee and consolidate the process. This panel must be recognised to the extent of presenting it with the pertinent avenues and necessary resources; at least equal opportunity to the media and government facilities and half of the budget used by the advisory committee for publicity and sessions, must be provided to it.

The panel would assist with the formulation of a code of conduct and procedural guidelines for the referendum and it should have access to the parliamentary elections office on matters thereof. The point must be made that whilst the advisory committee and the superior of elections are responsible for realising the reform, the opposition panel should be responsible for overseeing the process; checks on balance must be paramount in the realm of accountability, transparency and honesty.

An opposition panel is critical and essential to scrutinise and steady the work of the advisory committee, as well as to give an independent verdict of merits and/or demerits on the final proposal of the government going into the referendum. The panel would cause the debate on the reform to be broadened with the aim at enlightening within different contexts and perspectives, and at presenting the issues in a ‘clear manner’ which will enable the people to make sound judgment.

The debate has to be comprehensive and thorough; and not restricted to the mere issues and approach for the referendum. The impact by the reform for forward planning, especially with regard to new administrative, financial and legal requirements, as well as concerning the psychological adaptations of the people for a new political-governance culture, also has to be brought in sharp focus in the process. The panel would bring more conscious and constructive discussions and be able to negotiate and converge views in a more reasonable and acceptable fashion towards national consensus and pride.

The experiences of controversies and protests over the years with the passing of flawed and questionable laws in Grenada are well known; the most recent involves the Electronic Crimes Act of 2013, which took regional and international condemnations. There have been unpleasant expressions concerning the administration of justice, governance and elections. Those facts must not be ignored, but must apply; especially when political expediency, luxury and egocentricity is associated with the quest for constitutional reform. An opposition panel would be more apt and able to discover loopholes, shortcomings and errors in the reform process and to suggest sober solutions; any craftiness should also be interrupted and brought to the attention of the general public.

If the 1974 Constitution is reformed, or is replaced, but with grave concerns thereafter, it will not be easy to amend as an ordinary parliamentary legislation; and so all useful precautionary measures must first be put in place to reduce the risk of mistakes and problems in the reform process. Recall that it took almost seven years, from October 1983 to August 1991, to have complete restoration of the constitution after having been suspended in March 1979 by the People’s Revolutionary Government (PRG) under the late Prime Minister Maurice Bishop.

It is ridiculous and regrettable that, even with the restoration, the constitutional pensions provisions for public officers is not respected by the government; as the Pensions (Disqualification) Act passed by the PRG has not been repealed, up to this date. It is also worth noting that during the suspension period when laws were made by decree, there were intentions to produce a new constitution for Grenada, but this was not to be. The reform process should then have efforts at ascertaining the form and content of the constitution which was perceived by the PRG and to entertain the concepts and precepts in the way forward, inclusively.

Already there may be evidence of professionalism being compromised for bias towards the reform. There appears to be a level of inaccuracy, technicality and/or misrepresentation of the constitutional requirements for the referendum, on the part of Dr Lawrence A. Joseph, a former attorney-general who is representing the Grenada Bar Association on the advisory committee. Joseph, a local constitutional lawyer, in his regular column in the Grenada Informer newspaper of March 7, 2014 captioned “What is the Process for Reforming the Constitution in Grenada?” states that “… It then has to be passed . . . by a two-thirds majority in a referendum in the various constituencies”.

It will be advantageous and wise for him to show, with all combinations and possibilities, how his statement translates to or satisfies the exact words of the constitution (quoting from section 39, subsection 5) that “… by not less than two-thirds of all the votes validly cast on that referendum”. Here interpretation and application, as well as significances and implications, need to be brought on the table for clarifications.

Assuming that the referendum registers a yes for the reform but there are questions of irregularities of sufficient legal concerns in the process, who will seek redress on behalf of the people? In Jamaica, for example, the powerful Jamaica Council for Human Rights together with the opposition Jamaica Labour Party (JLP) and other persons, held the position that the Bills passed in 2004 by the People’s National Party (PNP) administration, to replace the United Kingdom-based Judicial Committee of the Privy Council (JCPC) with the Caribbean Court of Justice (CCJ) as that country’s final court of appeal was unconstitutional; this the JCPC agreed in its ruling in 2005. Such resourceful and robust institutional framework which exists in Jamaica and in some of the other CARICOM nations may not be present in Grenada; and this must be for serious consideration especially when militancy is being eroded, with gullibility and docility emerging, in the country.

Moreover, under which jurisdiction would the complaint on any irregularities in the reform process be taken? Is it the British Privy Council (reference to the present old constitution) or the Caribbean Court of Justice (reference to the proposed new constitution)? Would this situation be similar to when there had to be an expensive and extensive legal struggle to determine which court (the PRG Supreme Court, or the Eastern Caribbean Supreme Court) has jurisdiction for the trial of the accused persons for the death in October 1983 of Maurice Bishop and his government colleagues?

It is significant to note that, although the PRG had disdainfully abolished appeals to the Privy Council, the accused who were key political and military persons of the PRG had vehemently sought leave of the said Privy Council for granting final judgment on their case. The PRG Supreme Court was established as a People’s Law, but there were smokescreens and drawbacks in the enactment, which should also be lessons to put the people on guard with, and to guide, the process for Constitutional Reform.

It is reported via website www.nowgrenada.com (posted on 26 February 2014 in General News) that the chairman of the Constitutional Reform Advisory Committee, Dr Francis Alexis QC, who was also once Grenada’s attorney-general, in launching the project of the committee said: “There is need to have that enabling environment for the project to achieve its goal. We cannot have an enabling environment if there is contention in the atmosphere. I therefore urge all concerned to hold fire during that period”.

Dr Alexis must assure himself that calling for an independent, vigilant and forthright opposition panel is not about introducing ‘confusion, hostility and contention’ in the process, but rather it is a call to smooth anticipated complications and annoyances.

It is now the civil and patriotic duty of the government in collaboration with Dr Alexis’ advisory committee to assist in good faith, in the establishment of an opposition panel for the purpose of the constitutional reform. Individuals, with strong approvals and/or recommendations from the general public, who are desirous of serving voluntarily as members of the panel must be accepted and supported. Anything short of this goodwill gesture, from the authority, will prove to be contemptuous to the citizens, residents and well-wishers of Grenada and a travesty of the need for the reform.

There should not be any indication to suggest that the process of introducing the new constitution is parallel to the sad and repugnant manner by which the 1974 independence constitution was obtained; being drafted, decided and delivered by a privileged few, at the expense of the masses.
 
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