by J K Roberts (Sound Public Policies Advocate)
The Explanatory Memorandum of the Constitution of Grenada (Rights and Freedoms) (Amendment) Bill 2015 piloted for an Act to alter the constitution to make better provision for the rights and freedoms of the individual, expresses that the various clauses of the bill would amend the constitution for three objects and reasons. That is; to refine the provisions of the chapter of the constitution protecting fundamental rights and freedoms, to insert in the constitution a new Chapter 1A on Directive Principles of State Policy and to insert in the constitution a new Chapter 1B on Gender Equality. However, the real task for the Grenadian people on the bill for the constitutional referendum is for them to determine how relevant, meaningful and honest are the clauses, as well as, are the objects and reasons for the amendments; and this should be to the national good.
The Constitution Reform Advisory Committee (CRAC) under leadership by Grenadian constitutional lawyer and former politician, Dr Francis Alexis, takes a crack at establishing that the referendum is about improving human rights, enhancing the rule of law and building democracy. A simplistic and superficial pamphlet of the CRAC towards this end, itemized 45 proposals within the Rights and Freedoms Bill. Those proposals are sectioned civil rights, directive principles of state policy, gender equality, and fundamental rights and freedoms. However, it cannot be overemphasized and over-warned that the concrete case for the people is to analyze critically all of the amendment bills for intent, content, substance, technicalities and implications. In this light then, how necessary and applicable, or void of deceit, are the clauses of the Rights and Freedoms Bill?
One of the leading proposals of the Rights and Freedoms Bill is to delete the heading “Protection of Fundamental Rights and Freedoms” and to substitute the heading “Foundational”, as the first chapter of the constitution and this chapter now having 2 parts. Part 1 tends to define the sovereign power and political governance of the state of Grenada. The composition of this induction in the constitution gives proof of the inadequate consultation and the poor drafting for all of the amendment bills, and it may even reveal the mischievousness of the powers-that-be for the referendum. In particular, the issue on the constitutional territory and designation of Grenada should have been accommodated under the Part I; and it would be ridiculous for the CRAC to rely on the proposed Constitution of Grenada (Restructuring) (Amendment) Act, which is intended to reposition and renumber the chapters and sections of the constitution after various amendments are accomplished. Recall the previous article, “Grenada Constitution Reform: Name of State Bill”, which addresses the controversies and concerns on the issue.
There are many intrigues by which the process for constitutional reform(s) is being executed under the CRAC and the government of the New National Party (NNP) of Dr Keith Mitchell. Typically is the manner by which all of the amendment bills are phrased, structured and presented. Blanket statements are made without elaborations, but with lavish red herrings and hidden fine prints. The case is made with the Rights and Freedoms Bill, which is not user-friendly and cannot be correlated easily. To grasp the rationale and essence of the alterations in the bill is virtually impossible; thus frustrating conscientious people and misleading the unsuspecting individuals. It is most regrettable that the bill is not palatable and of ownership to the young people; they are not taught Civics and no genuine opportunity was given for their input to the reform(s).
The Rights and Freedoms Bill makes appeals to a wide cross-section of different demographic groups and gives reference to international treaties such as on the United Nations’ Universal Declaration of Human Rights. For example, it speaks to the child, the woman and the media, as well as it advocates on disability, ethnicity, religion, the environment and the sexually oriented. The bill aims to be politically correct by playing with the interest, emotion and ignorance of the people. With astuteness and soberness though, the various groups of people will realize that there is nothing ‘effective and substantial’ in the bill to advance their core cause or principle; and at the same time, the other individuals will realize that the moral and natural fabric of the Grenadian society would be changed for the worst. It has been voiced that the United Nations Development Programme (UNDP) would give special support to the youths and women for the referendum; but UNDP will not be involved with the contents and details of the bill. Also read “Grenada Constitution Reform: United Nations Position”, which highlights the relationship of the UNDP with Grenada on the Reform Project.
Indeed the Rights and Freedoms Bill in its present construct is extensive, but it is empty. The bill is also ambiguous, with the proposals therein only to impress and decorate. None of the proposals will improve human rights, enhance the rule of law and build democracy as now prevail; but on the contrary there will be attenuation in the protections and privileges already provided for in the 1974 Independence constitution. The ‘attitude and approach’ of the powers-that-be for the referendum will always be called into question. The burden of proof therefore is for the powers-that-be to show that the proposals in the bill will meet the three stated objects and reasons, the proposals are not ultra vires and that the proposals are not laced with irregularities and loopholes.
Ambiguities appearing in the amendment bills will not only affect the understanding by the Grenadian people of the nature and benefit of the bills, but this will also result in justice eluding them. The scope for legal interpretation of the bills would be broadened and thus making it much more difficult for an aggrieved individual to get judicial redress. Many new and strange terminologies and definitions are inserted in the bills, and familiar expressions are altered, which can drastically corrupt the ‘spirit and intent’ of the Independence constitution, to the detriment of the people. Examples requiring clarification within the Rights and Freedoms Bill are “public interest”, “due process of law”, “sex or social class”, “gender”, and “within a reasonable time”. It is perceived that the bill was designed to serve and to protect special privileged persons, including foreigners on the Citizenship By Investment programme, especially considering the repeal of subsection 3(2) of the constitution and its replacement attaching “without delay, promptly” to “in a language that he understands”.
Many areas of irony and complication could be identified in the Rights and Freedoms Bill. The bill is said to be in line with pertinent articles of the Caricom Charter of Civil Society 1997. This imparts more confusion for the Grenadian people to appreciate the bill and for the electorate to decide at the referendum. The people would be voting on issues which they have no sound knowledge. What does the average Grenadian know about the Caricom Charter? What aspect of those articles would be applied for the reform(s), how and when? The latter concern is especially appropriate, since it is sovereign protocol that international / regional treaties and conventions are not usually taken wholesale but must be in accordance with the societal culture, governance policy and legislative agenda of the local country. The expectation of the people would be dashed since the final decision for implementation of the bill rest on the discretion and deliberation of the powers-that-be, as is evident in the declaration that different dates may be appointed for the various provisions of the resulting Act.
It has been preached sternly by legal experts and the powers-that-be that the constitution cannot be made bulky but is summarized as the leading judicial framework for engendering national dignity, order, peace, governance, institutions and development. Many of the proposals contained in the Rights and Freedoms Bill already have legal status without any challenges and controversies, and have being enjoying conventional acceptance. There is absolutely no need to elevate the specific treaties, articles of agreements and primary laws to constitutional prominence. In fact, this undertaking may just undermine and make of no effect the constitution as the ‘supreme law’. The inclusion of the proposals such as the “right to due process of law”, “right to expressions of culture”, “right of vote”, and “rights of the family” is redundant; those are meant only as rhetoric to beguile the people. It would be instructive for the people to ascertain the ideals set-out in the Preamble to the constitution on the enjoyment of their economic, social, political, civil and cultural rights, and freedom from fear and want.
The point could be made that the Rights and Freedoms Bill, in particular, is decorated and coated with democratic practices and modern trends in order to appease international bodies on pertinent issues and thereby for Grenada to capitalize on the assistance of those bodies and to avoid any of their sanctions. Definitely, the 2030 Agenda for Sustainable Development (United Nations Millennium Development Goals, post-2015) can be adopted with goodwill into domestic law, without having the issues outlined in the constitution. Will the provisions in the bill aim at enhancing the supply of food, water and health facilities improve the poverty and vulnerability statistics in the country? Is the financial mismanagement, economic woes and austerity measures being felt by the local population a result of not having previously in the constitution, the provisions for calling upon the Government to exercise fiscal responsibility and for requiring the authority to be guided by the Directive Principles of State Policy in the discharge of their functions?
The proclaimed guaranteed “due process of law” in the Rights and Freedoms Bill could be considered folly and fallacy, as well as fictitious and vexatious; Grenadians have being undergoing abuse of the present constitution, disregard for court judgements, an appalling administration of justice, and an interfering or usurping of institutions. Moreover, it is preposterous and offensive to declare in the bill certain proposals which are non-enforceable, when considering that a constitution is about transparency, accountability, penalty, and checks and balances. The bill is punctured with conditional and escape clauses which invalidates what tends to be promoted in certain of the proposals and which places no strict commitment or fiduciary obligation, on the part of the politicians for integrity in public life.
The powers-that-be has to be brash to ask the Grenadian people to accept the proposal in the Rights and Freedoms Bill on the “right to access information”, even when copies of the constitutional amendment bills for the constitutional referendum are not made accessible to the general population for scrutiny and understanding. Likewise, the people have to be brash to accept the proposals of the bill and failing to assert Peoples’ Power. The frankness of the powers-that-be for the reform(s) has been raised when the people have been denied the exercising of their “equal and inalienable rights, reason, and conscience” for self-determination on the founding and writing and endorsing of their own constitution. The so-called refinements and insertions proposed for the constitution are not of the making of the people but are handed-down proposals of the whims and fancies of the powers-that-be. Review “Grenada Constitution Reform: A One-Sided Affair!”
Noble treatment ought to be given to the constitution. The constitution has being regarded as a sacrosanct national document; it is the instrument of the sovereign identity of the people and the heart of a stable political society. Despite the cries of the people for better expression and realization on the Doctrine of the Separation of State Powers (organs of the government) and for moderating the powers of the prime minister, it is rather alarming that certain proposed amendments for reforming the constitution give Parliament extra powers. This doctrine is essentially about protecting the people from the abuses and excesses of the politicians. It would be an indictment on the people and a catastrophe for the nation to have the people delegate unrestrained power to the politicians. Again, the people must be forewarned that a “yes” outcome of the referendum would not be reversed easily. Also review, “Grenada Constitution Reform: Executive Powers of the Cabinet.”