Can the Success or Failure of a Referendum be Determined?

By Sir Lawrence A. Joseph

On Thursday 24th November 2016, all voters in Grenada, Carriacou and Petite Martinique will have an opportunity to express their approval or disapproval with respect to seven Constitutional Amendment Bills. When an electorate is given this opportunity, this “reference to the people” is called a referendum. Section 39 of the Constitution of Grenada mandates that if there is any proposal to amend any entrenched provision of the Constitution, that proposal must be passed by a two-thirds majority in the House of Representatives , a simple majority in the Senate and a two-thirds majority in a referendum. In as much as the seven Bills propose to amend certain entrenched provisions in the Constitution, then the provisions of section 39 must apply. A significant question that may be asked therefore is: Can the success or failure of a referendum be determined?

In the present instance the process to arrive at this stage started on 16th January 2014 when the Grenada Constitution Reform Advisory Committee, headed by constitutional expert, Dr. Francis Alexis, was launched. The Committee comprises some fourteen members representing a wide variety of organisations such as the Trade Union Council, the Chamber of Commerce, the National Democratic Congress, the New National party, the Grenada Bar Association, religious and other non-governmental organisations. The mandate of the Committee was firstly, to continue the consultative process of Constitution Review to lead ultimately to Referendum on the Grenada Constitution; secondly, to provide the oversight to the process so as to ensure that it is transparent, credible and consensual; and thirdly, to advise Government on its findings.

The Committee advised Government on its findings by way of an Original Report dated 9th July 2014 and a Further Report dated 22nd November 2014. These Reports were signed off by the majority of members of the Committee including the representatives of the two main political parties. The Cabinet in utilizing its constitutional executive authority accepted all the recommendations in principle however it made certain amendments to a limited number of them. It must be noted that amendments may be made to such proposals either at the Cabinet level or in Parliament. As a consequence, seven Constitutional Amendment Bills are down for Referendum on Thursday 24th November next.

Ballot Paper No 1 proposes that the Caribbean Court of Justice (CCJ) should be approved as the final court of appeal for Grenada instead of the Privy Council. It is argued that the CCJ is more accessible and less costly to the ordinary person. Ballot Paper No. 2 proposes that there should be an Elections and Boundaries Commission made up of representatives of both the government and the opposition with an independent Chairman to oversee the registration of voters and the conduct of elections instead of a Supervisor of Elections. The Commission will also be responsible for establishing constituency boundaries. Ballot Paper No. 3 proposes to ensure that there is a Leader of the Opposition even if one party wins all the seats in a general election. Ballot Paper No 4 proposes that Parliament should be authorized to fix the date for general elections rather than leaving that decision to a Prime Minister as is presently the case.

Ballot Paper No 5 proposes that the official name of the State should be Grenada, Carriacou and Petite Martinique instead of just Grenada. It is argued that the name change would establish more inclusivity and national pride to the people of those islands. Ballot Paper No 6 proposes to expand the fundamental rights and freedoms of individuals, to protect children generally whether born in wedlock or out of wedlock, to guarantee that both men and women should have equal rights and status, to establish an enabling environment for persons who are challenged physically, visually, aurally and or mentally. Contrary to the concern of some, the Bill does not promote either same sex marriages or same sex relationships. Ballot Paper No 7 proposes to debar anyone from being appointed as Prime Minister once that person was so appointed for three consecutive terms.

Based upon the above, can it be said then that if the electorate votes “no” to a particular Bill, that that referendum has failed? Or that the only way to determine whether a Referendum has been successful is if the electorate votes “yes” to it? It is submitted that the main purpose of a Referendum is to obtain the approval or disapproval of the electorate on a particular proposal. If the process has reached the stage where the electorate is given that opportunity to express their choices in a referendum, and there is a significant turn out at the polls, then whatever is the out-come, that referendum may be considered to be successful. It is to be hoped however, that Grenadians will look into their various consciences and make rational decisions for the benefit of the country as a whole.  Many of us will not have another opportunity to improve the provisions of our Constitution, so it is imperative that we make the best of this upcoming historic opportunity.

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