By Dr Lawrence A Joseph
Grenada is presently in the process of reviewing the Constitution led by well-renowned constitutional lawyer, Dr Francis Alexis.
The last three bodies which were set up for undertaking the same process were under the chairmanships of Sir Fred Phillips in 1985, Mr Nicholas Liverpool and subsequently Mr Justice Lyle St Paul in 2006 and Professor Simeon Mc Intosh in 2010. Not a single outcome of any one of these commissions reached the parliamentary stage or the referendum stage.
When a Constitution is being reviewed, recommendations may be made for either having the constitution remain unchanged, be amended or be reformed. If, for example, after holding national consultations, a Review Committee is convinced that people in general are satisfied that the existing Constitution is quite effective and efficient, then it may well be minded to recommend that the existing constitution should remain unchanged. If it is satisfied that certain amendments are required in order to make it more effective and efficient, then the appropriate amendments will be recommended.
Alternatively, if the feedback coming from the populace is that fundamental changes ought to be made to the constitution, such as a change from a monarchical system to a republican system then recommendations will be made for having a reform of the constitution.
Based upon the feedback of widespread public consultations throughout the state, the incumbent Alexis Committee recommended that the existing constitution should be amended rather than be left unchanged or reformed. As a consequence, twelve recommendations were made to the government for amending the constitution. Cabinet approved all recommendations in principle. However, some are of the view that more recommendations ought to have been made and insist that those recommendations must be allowed to go for a determination, not by Cabinet but directly to referendum. The question therefore arises: What is the established authority for the conduct of the reform process?
Section 39 of the Grenada Constitution makes provision for how the constitution is to be altered, that is, whether it is to be revoked, modified or suspended. The section provides that in order to alter any provision of the constitution an appropriate Bill must be introduced in the House of Representatives and remain there for no less than ninety (working) days before debate on that Bill commences. After due process the Bill must be passed by at least a two-thirds majority of all the members of the House of Representatives. In the present construct of the House of Representatives, at least ten members must approve the Bill.
After passage of the Bill in this Lower House, it must be sent to the Senate which must approve it by a simple majority. Before Assent to the Bill is given by the Governor General, in order for it to become law after gazetting, the following must be done: The Speaker of the House of Representatives must attach the appropriate certificate to the Bill certifying that there was compliance with Section 39 of the Constitution and the Supervisor of Elections must attach the appropriate certificate certifying that the results of a referendum have met the requisite two-thirds majority support of all those participating in the referendum.
A referendum is perhaps the best example of participatory democracy by the electorate. All persons who are entitled to vote in general elections will be entitled to participate in the referendum to either approve or disapprove the recommendations. Special legislation is expected to be passed by parliament for the conduct of any referendum.
The key lesson which may be extracted here is that ultimately it is the government in office which is responsible for the conduct of constitution “reform”. The Cabinet has the responsibility of either accepting or rejecting recommendations in the initial phase of the process. Any approved recommendations must be submitted to Parliament by way of Bills and passed in accordance with Section 39 of the Constitution. When once this has been done, then the relevant questions will be submitted to the electorate by way of referendum in order to obtain the requisite support.
In some countries, parliamentarians are allowed to vote freely in Parliament on certain issues of conscience. Even cabinet ministers are sometimes relieved of their collective responsibility. These issues may include those relating to constitutional amendments, casino gaming, same sex marriage or the death penalty. It may well be the case that government will accept all recommendations initially, however if parliamentarians are allowed to vote freely, then some recommendations may not even reach the referendum stage.
This is the nature of our democratic process.
