Constitution of Grenada (Ensuring a Leader of The Opposition) (Amendment) Bills 2016

by Claudette Joseph
Attorney–at–Law practicing in Grenada

In as much as CRAC’s mandate was to take into account the recommendations of the earlier review bodies, the 2006 Constitution Review Commission, at page 127 of its report, made the recommendation for Proportional Representation. It recommended that a number of seats in the parliament should be allocated to persons chosen by the Political Leader of each party that contested the elections. These seats were to be allocated based on the percentage of votes received by the party — Proportional Representation (“PR”). This proposal spoke directly to the effect of the results of the 1999 (and now 2013) General Elections where one party won all 15 seats, even though a sizable percentage of electors voted for other parties. The call for Proportional Representation was very prominent in the current process. Implementing the recommendation for Proportional Representation would ensure that there is a Leader of the Opposition at all times (“OL”).

None of the prior Constitution review bodies recommended the Bill as is now proposed and the question was not part of CRAC’s internal voting.

In CRAC’s internal voting, on the question of PR, there were 4 “yes”, 1 “yes later” and 2 “no” votes. 7 members either abstained or didn’t vote. As a result of this vote, the issue of PR was not sent to Cabinet for consideration.

It is not clear at what stage the idea of a Leader of the Opposition Bill replaced the people’s proposal for Proportional Representation, but the recommendation was made to Cabinet as one of the additional 6 following the October 2014 Trade Centre consultation.

It is therefore important to understand that the Bill now proposed is not the same as PR. In fact, they are two very different things. This Bill appears to be a compromise, because some members on CRAC did not support the proposal for PR. If this Bill succeeds, Grenada would have recorded a first, whereby the Governor General could appoint a single person from among all the losing candidates, so as to create the appearance of an “opposition” in Parliament. Indeed, this Bill proposes to give the GG additional powers that he or she does not enjoy under the present Constitution.

Section 66 of the Constitution makes provision for how the Leader of the Opposition (“OL”) is appointed. It provides that there shall be an OL appointed by the GG acting in his own deliberate judgment. That person must be the member who appears to the GG to have the support of the largest number of members on the opposition side. Section 31 of the Constitution deals with those matters that will disqualify a person from being a member of Parliament either on the government side or the opposition side they include: if the person is a citizen of a foreign state other than a Commonwealth state, is a bankrupt, is certified insane or of unsound mind, has been sentenced to death or is serving a term in jail of 1 year or more, except where the sentence is imposed as an alternative to, or in default of a fine.

The purpose of the proposed Bill is to ensure that there is a leader of the opposition in Parliament at all times. Sections 3 and 4 of the Bill provide that a person appointed as Leader of the Opposition, shall enjoy all the rights and privileges in Parliament as though he was elected, including the right to vote on any question proposed for decision in the House. Section 31 will also apply to such person.

Section 6 (1) of the Bill provides for where all the elected members of the House are from the same political party that forms the Government. The proposal is for the GG, on the advice of the “leadership”, to appoint as OL, a member of the political party that got the highest number of votes (excluding the political party that forms the Government).

This section proposes to introduce some new concepts to the Constitution. They are:

  • the idea that a person who didn’t win a seat can become a member of Parliament with all the rights as a person who won a seat;
  • the concept of political parties. The present constitution does not recognise political parties. Instead, it recognises members of Parliament and constituencies. MPs do not represent political parties, they represent constituents. While introducing the idea into the constitution, the Bill does not define the term “political party”;
  • it speaks to the GG having to consult with “the leadership” of a political party without defining what leadership means. It is quite possible that this can embarrass the GG when it is not clear with whom he/she may consult. Does the GG consult with the political leader or the executive of the party or the General Secretary? What happens when there is division within a “political party”? These are relevant questions given our recent political history.

Section 6 (2A) of the Bill provides that if a member from the Government side crosses the floor, the GG must remove the OL and appoint that person as OL. If this happens the intent of this Bill will be defeated, because a sizable segment of the population who did not vote for the governing party will not be represented in the Parliament.

The situation where a member of the government side crosses the floor also has implications for the composition of the Senate. At present, with no official opposition, the GG appoints the 3 opposition Senators in his/her own deliberate judgement. However, if there is an OL, he will advise the GG on the appointment of these 3 Senators.  In reality therefore, if one party has all the seats in parliament and wishes to prevent an opposition leader from the losing party being appointed, they can simply have 1 of their members cross the floor. In that event, the GG has to appoint that crossing member as OL. The governing party, through that member, will get to appoint the 3 opposition Senators. The result, the governing party will control the Senate by having 7 government, plus 3 opposition Senators.

Furthermore, section 6 (3) of the Bill provides that the GG, acting in his own deliberate judgment, may remove the OL if he thinks “it is no longer appropriate” for that person to remain as OL. Thus, an opposition leader who isn’t “co-operating” with the government can easily be removed. The language in this section is as wide as it is vague. It gives the GG the power to remove the OL without setting out specific circumstances under which this power may be exercised. Added to that, whereas in making the appointment in the first place, the GG must consult with the “leadership” of the opposition party, but in removing him under this section, the GG consults no one. This leaves open, the potential for arbitrariness and abuse. In our very recent history, we had Governors General with close ties to political parties immediately prior to being appointed. In this proposed setting, the possibility of a GG being subject to partisan influence and therefore abuse is not remote.

In the final analysis, the people proposed a system of proportional representation, whereby in addition to the current system, there would be some additional seats apportioned to each party (including the winner) based on the percentage of votes received. This proposal was rejected, and the present one, not of the people, is put forward in the Bill. The people’s proposal for PR would have ensured an opposition leader at all times, drawn from an opposition party. With PR, a dissenting, differing voice would always be assured in the Parliament. Whey then opt for this Bill over the people’s wish? Unfortunately, if this Bill succeeds on the referendum and the loopholes are taken advantage of, our democracy will be severely weakened.

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