—Richard Albert, Boston College Law School
The Constitution of Grenada, still today a statute of the Parliament of the United Kingdom, may soon become a truly Grenadian Constitution. Grenada is in the process of reforming its constitution to give its people a constitution of their own making. And when the process concludes, the country may have a new name.
Previous efforts to reform the Constitution of Grenada have been twice interrupted since 1974, when the country’s current constitution came into force. The first time, in 1985, the government appointed an official Constitutional Review Commission to make recommendations for revising the Constitution but the government later chose not to proceed. Some of the Commission’s recommendations included establishing an Electoral College to choose a President, creating new formal amendment rules, and formalizing the rule that Parliament cannot strip the courts of jurisdiction.
Then, in 2006, another official Constitutional Review Commission made recommendations for constitutional reform. The government had appointed the Commission in 2002 with the intent to proceed this time, but once again the government took no action on the Commission’s recommendations. Some of the Commission’s recommendations included creating a ceremonial presidency, imposing a two-term limit for the prime minister, and establishing fixed election dates.
It looks like the third attempt may bear fruit. The government of Prime Minister Keith Mitchell convened a Constitutional Reform Advisory Committee in January 2014, and is now prepared to act on at least some of its recommendations. The Committee is chaired by Dr. Francis Alexis, a distinguished constitutional scholar and former Attorney-General of Grenada.
In this short post, I review some of the Committee’s recommendations and offer one of my own.
Caribbean Court of Justice
The court of last resort for Grenada is currently the Judicial Committee of the Privy Council, where all final appeals are taken. This vestige of colonialism remains useful to Grenada but has become expendable with the creation of the Caribbean Court of Justice (CCJ) in 2001 and its official inauguration in 2005. All Caribbean state signatories, one of which was Grenada, may choose freely to accede to the CCJ’s jurisdiction and thereby replace the Privy Council with the CCJ as the highest court. The CCJ has been endorsed by twelve Caribbean states, and it now serves as the court of final appeal for Barbados, Guyana and Belize.
One of the Constitutional Reform Advisory Committee’s recommendations is to accede to the jurisdiction of the CCJ. The government of Grenada appears inclined to accept this recommendation.
The current Deputy Prime Minister and Minister of Legal Affairs, Elvin Nimrod, has expressed his view that Grenada’s independence requires it to sever ties to the Privy Council:
We are saying as an independent nation we think that we should use our own court instead of going to the Privy Council in England – that it would be better for us to use our local court, of course there are varying opinions on this.
Nimrod has also suggested that Grenada risks burdening the Privy Council by retaining the foreign court as the country’s final court of appeal, not to mention that a local court could better serve Grenadians than the Privy Council:
I should tell you that from recent utterings and other actions, we believe that they feel burdened with our matters and they believe it is time for us to find our own wings to fly and so taking that into consideration the fact that our local court will be much more competent in terms of knowing our culture and our ways of life and we believe that might be the better road to take.
Acceding to the jurisdiction of the CCJ would be helpful to the CCJ itself. It would give the CCJ its fourth country subject, which could in turn accelerate the accession of other countries to the CCJ’s jurisdiction.
Electoral Reform
The Constitutional Reform Advisory Committee has also recommended that the Constitution of Grenada entrench some mechanism to ensure that the government faces an organized opposition in Parliament. At present, the New National Party, the governing party, is unopposed in Parliament. It holds all 15 seats in the House of Representatives, despite having secured only 59 percent of the popular vote in the last general election. The National Democratic Congress earned no seats even though it won 41 percent of the popular vote. This is the second time the governing party has won all seats in the House of Representatives: the opposition was similarly shut out in the 1999 general election.
This is yet another illustration of how the first-past-the-post system distorts the allocation of parliamentary seats and fails to reflect voter preferences.
To its credit, the government believes, or at least says it believes, that the Committee’s recommendation in this respect is a good idea. Nimrod has observed that:
There are those that say it is not real democracy to have one side having all the seats in Parliament and others will say that is true democracy because pure democracy depends on what the people say and if the people wanted one seat for one party then that is democracy. You can’t ask for a purer form of democracy but at the same time it’s good to hear another side,” adding that “I’ve heard the Prime Minister [say] it and I feel the same way myself, I lose the steam and the enthusiasm in the Parliament when I look around and I don’t see an opposition that I can really pepper. It’s like you [are] boxing but you [are] alone boxing.
In my view, the solution should involve some form of proportional representation. One possibility is of course for Grenada to move entirely from its first-past-the-post system to proportional representation. A less dramatic constitutional reform would retain first-past-the-post for the majority of parliamentary seats but would add a small complement of at-large seats to be filled according to the popular vote.
A New Name?
Another one of the Constitutional Reform Advisory Committee’s recommendations apparently high on the government’s list is to officially rename the country from Grenada to “Grenada, Carriacou and Petite Martinique.”
Carriacou and Petite Martinique are two of the three islands comprising Grenada, the third being Grenada itself. Both islands are dependencies of Grenada, but have political representation in the Grenadian Parliament. Some observers now consider it a political necessity to officially recognize these two islands both in national symbols by renaming the country and in political fact by creating some form of local government on all three islands whose interests would in turn be represented equitably in the Senate. This raises an important question about Senate reform, which should feature in the larger project of parliamentary reform in Grenada. It may be too much, however, for Grenadian political actors to undertake Senate reform in this round of constitutional reform.
Looking Ahead
Last month, the government announced that it would hold a referendum to approve these and other constitutional amendments. The date of the referendum was originally set for February 10, 2015, but last week the government changed the date to March without specifying why. An additional month’s wait seems tolerable with the desired end so clearly in sight.
A Recommendation: Quorum and Regional Ratification
Let me offer one recommendation in connection with the referendal ratification of these constitutional reforms.
The Constitution of Grenada requires changes of this magnitude to secure two-thirds approval in a national referendum.[1] This high threshold is appropriate for a popular exercise that will bring home the constitution to Grenada from the United Kingdom, and set the stage for officially Grenadianizing it.
As difficult as this threshold will be to satisfy, it should be even a little bit harder still. The government should insist that the national referendum meet both quorum and regional requirements.
The Constitution requires only that the referendum pass with “two-thirds of all the votes validly cast on that referendum.”[2] Yet this rule does not establish a minimum threshold for national participation, nor is it attentive to the country’s regional sensitivities.
To make the process of constitutional patriation a truly participatory national exercise, the government should set a minimum level for voter turnout. Setting the floor at two-thirds of all eligible voters seems appropriate, though it would be preferable to have even more participation. This high quorum requirement would in turn place the onus on the government to organize voter education campaigns and to undertake civic engagement programs in the lead-up to the referendum.
And to demonstrate the government’s interest in Grenadianizing the constitution for all, it should consider requiring two-thirds approval among the voters of each of the three islands. The referendum would therefore pass only if the proposed amendments secure two-thirds approval as calculated separately in Grenada, in Carriacou and in Petite Martinique.
Relatedly, in its own self-interest, the government should not present these amendments in an omnibus bill. It should instead present them as separate issues so that voters can express their support or opposition to each individual proposal, instead of being compelled to vote against the entire set of amendments if even they oppose only one. This was the fate that befell the governments of Brian Mulroney and Ralph Gonsalves in their own constitutional reform referenda in Canada and St. Vincent & The Grenadines, respectively.
The coming referendum in Grenada will be an important event in the Caribbean. It could ultimately spur neighboring states to follow Grenada’s lead by adopting their own indigenous constitution in a deliberate and deliberative act of political independence.
Suggested Citation: Richard Albert, Constitutional Reform in Grenada, Int’l J. Const. L. Blog, Aug. 20, 2014, available at: http://www.iconnectblog.com/2014/08constitutional-reform-in-grenada
[1] Constitution of Grenada, Ch. III, Pt. II, s. 39(5).
[2] Id. at s. 39(5)(c).
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