“The greatest threat to our Constitution is our own ignorance of it…” – Jacob Roecker
“How easily men satisfy themselves that the Constitution is exactly what they wish it to be…” –Joseph Story
It would appear that the several jurisdictions in the region or, at least, some of them, have been seized simultaneously with the urge to re-examine their Constitutions and to reform these in some particular or other.
Later this week I am scheduled to participate in a panel discussion in Antigua & Barbuda on that twin state’s possible accession to the appellate jurisdiction of the Caribbean Court of Justice [CCJ]; an initiative that is to be the subject of an upcoming referendum as is constitutionally required in that jurisdiction and some others, once a delinking from the Judicial Committee of Her Majesty’s Privy Council is contemplated. It is an interesting contrast that no identical procedure was deemed necessary for that latter tribunal’s adoption at the coming into force of the Constitution.
And, as if it were irremovable from the public discourse, the notion of Barbados assuming formal de jure republican status returned last week with some force in a widely-reported panel discussion, despite an earlier and rather emphatic denial by a senior public officer, situated in the office of the Prime Minister no less, that this specific reform was not being considered currently.
On that occasion, one of the more newsworthy items, for obvious reasons -given our penchant for intrigue and the prurient-, proved to be the revelation that there had been an earlier effort to draft a “republican Constitution” for Barbados. In light of this information, most people seemed shocked that so significant a national development could have been undertaken “in secret”.
I tend to agree with the popular sentiment to some extent. While I understand, of course, that the draftsmanship of a Constitution is a technical exercise that would be best left to those who may be skilled in the area –that is, the drafting of Constitutions and not necessarily constitutional law-, the very nature of such a document demands intensive public participation in its broad outlines.
The Constitution connotes by definition that it is a document “constitutive” of the nation, and is not merely to be treated as any other piece of legislation. It is, otherwise put, a creation of the people, by the people, for the people. Hence their consent to its provisions should sedulously be sought.
I do not agree that this requirement would have been constituted (pardon the pun) by the views expressed to the admittedly wide-ranging Forde Commission. After all, to the best of my knowledge, this body was charged merely with eliciting popular opinion on general constitutional reform, as opposed to the precise elements of the form of governance that would ensue. In other words, once republican status had been considered the desired constitutional arrangement, only then what the international lawyers call the “travaux préparatoires” would have assumed pride of place through the determination of the finer points of that arrangement.
Indeed, if memory serves me correctly, the drafting of a “republican” constitution would have been precipitate in any event, since the actuality of this was officially hinged on the outcome of a referendum on a question that naysayers were to quick to seize on and to object to as insulting their “intelligence” when, as a matter of law and fact, it was the direct answer to that question that would have provided the irreducible minimum of formal republic status. Maybe that was the true reason for the re-drafting of the Constitution –simply to give those persons and their ilk additional fodder on which to vent their monarchical spleen!
I have also been made privy recently to a number of Bills that indicate the contemplation of substantial Constitutional reform in Grenada. According to the Grenada Government Gazette of February 12, 2016, these Bills, all styled Constitution of Grenada (…)(Amendment) Bills, were read for the first time in Parliament in early December last year.
They comprise (i) A Bill to restrict anyone from holding the office of Prime Minister who has held this office for three consecutive Parliamentary terms prior; (ii) A Bill to prescribe a fixed date for general elections; (iii) a Bill to ensure that there is the appointment of a Leader of the Opposition in Parliament even if, as has happened, all the members of the House of Representatives are members of the political party that forms the Government; (iv) A Bill to permit Grenada’s accession to the appellate jurisdiction of the CCJ; (v) A Bill to provide for the formal re-structuring of the Constitution; (vi) A Bill to change the name of the State from Grenada to Grenada, Carriacou and Petite Martinique; (vi) A Bill to establish an Elections and Boundaries Commission; and (vii) A Bill to refine the Chapter protecting fundamental rights and freedoms; to provide expressly for Directive Principles of State Policy; and to insert a new Chapter on Gender Equality.
These should provide ample material for legal scholars, and political and other social commentators to reflect on. I am especially provoked by the last Bill mentioned above that seeks, inter alia, to increase the kinds of conduct that would constitute discrimination, by adding to the traditionally proscribed grounds, those relating to disability, ethnicity, language and social class; to guarantee the right of a child to education; to require the state to aim at enhancing the supply of food, water and health facilities; and to domesticate relevant treaties.
In this existing climate of formal constitutional change in the region however, it is imperative that citizens become more familiar with the workings of the relevant document. I have often expressed my intrigue in this space at some of the assertions, not all populist or lay, as to what may be contained in the Constitution and what conduct may be contrary to its provisions.
We have had the Bar Association finding therein an express right to work; and relatively recent assertions that it would be unconstitutional for the police to arrest someone on suspicion of him or her being about to commit an offence; that the conferral of a knighthood is included in the Constitution; that the choice of Opposition leader is restricted to members of one political party; that the Attorney General must be a member of the Lower House; and that the Prime Minister may be removed by a simple majority of members of the House that support the government advising the Governor-General of their change of heart. These are all, if nothing else, mythical.