Wednesday, December 02, 2009

On Caribbean Referenda

St Vincent’s referendum

Posted By Stabroek staff On December 2, 2009

It would not be an overstatement to say that in the view of the governments of these West Indian islands, the use of referenda or special majorities of their parliaments required to change particular articles of their countries’ constitutions, is faced with trepidation. The nightmare about its use stems from the failure of the referendum on federation in Jamaica and its consequent still-birth. The British government made no bones about the necessity for these institutional arrangements, knowledge of which to the man in the street has stemmed in recent times from the discussion on the establishment of a Caribbean Court of Justice to replace the British Privy Council.

The concern of British governments about the importance of the provisions for special parliamentary majorities and referenda came to be increasingly grave, because when many of our countries were attaining independence the British would have seen the fundamental change introduced in respect of the constitution of Ghana, and later on the changes which President Burnham made in the case of Guyana. The leaderships of both countries initially made the case that what were considered non-indigenous provisions of the constitution, or provisions inappropriate to the character of the people, should be dispensed with. But it turned out that the changes led to varying forms of despotism. And in the Caribbean Guyana indeed became, in the eyes of many citizens, the template for what not to do.

In that regard, in both Jamaica and the OECS countries there has tended to be a certain resistance to the removal of the Privy Council as the highest court of appeal, or to do what had to be done to pursue deeper integration than exists today. And governments themselves have hesitated to mortgage their tenure of office to referenda, the provisions of which few of the electorate will have understood in depth, with the referendum then turning into a plebiscite on the government itself. Some observers are therefore convinced that the various initiatives at OECS unity over the years, for example, have succumbed to these fears of governments, the initiatives being abandoned as soon as they came to consider what were felt to be the hurdles of referenda or special parliamentary majorities.

So the Prime Minister of St Vincent and the Grenadines, himself both a lawyer and a political scientist, will, we can be assured, have had all these considerations in his mind when he set out to get support for the creation of an indigenously-framed constitution for his country. And he has not been known to throw caution to the wind on such matters, ideologically convinced though he will have been of the rightness of the project. We suspect that it is in this context that he might have felt that he could overcome the two-thirds referendum requirement by first getting parliamentary approval of both government and opposition benches for the authority to pursue systemic constitutional change. This he did achieve. And it is in that context too, that he might have sought the appointment of a member of the opposition New Democratic Party, and a distinguished lawyer and former NDP Attorney General, Mr Parnell Campbell, as Chairperson of the Constitutional Commission; and the well-known legal academic and constitutional lawyer, the Grenadian Dr Francis Alexis as the main drafter of the new constitution.

That effort of consensus-making has clearly not been successful, as the campaign and the subsequent result showed, since the process turned into a traditional battle of the parties in a country known for a certain degree of bitterness in its political life.

Some observers critical of Dr Gonsalves’ methodology have argued that if it was his intention to follow a consensus approach, he should not have had the referendum so close to impending general elections, and that he should have waited for whichever party formed the new government to pursue it. For there has been some recent sentiment in the opposition ranks that they had a good chance of victory at the polls, as the Unity Labour Party was moving to seek a third term at a time when the Prime Minister has been scarred by allegations about his personal life, a degree of high-handedness and many queries about the construction of a new airport in St Vincent (the dream of every Vincentian Prime Minister) at tremendous cost relative to the budget of the country, and in the context of what appears to be persistently declining economic growth.
These kinds of public criticisms have become grist to the mill for the opposition and the sotto voce weapons of their campaign. Their significance took on new strength when the old warhorse and former NDP founder and Prime Minister, Sir James Mitchell, joined the NDP campaign, and no doubt began to influence its strategy. Mitchell would hardly have forgotten the severe pressure which Gonsalves put on him in the 1998 general elections when the ULP obtained 55% of the vote (more than the NDP obtained) but got only 7 of the 15 parliamentary seats. The result was eventually a Caricom-brokered agreement that new elections should be held in 2001, at which the ULP obtained 56% percent of the vote and 12 of the 15 seats, with Mitchell going into retirement.

So the referendum took on all the partisanship of a normal St Vincent campaign, with the NDP asserting the progressive nature of the constitution and a substantial consensus around it, and the NDP basing its campaign on Gonsalves’ alleged mania for power and related political sins. They insisted now, after six years of debate on the matter, that he was really using the referendum, set at that specific time, as a trial run for the coming elections. A sentiment apparently emerging during the campaign within the ULP ranks was indeed that they did not expect to get the required 67%, but hoped for a showing as respectably close to their proportion of the vote in recent elections. This would likely have strengthened the NDP’s perception of Gonsalves’ strategy.
Paradoxically, the intention of the British in requiring referenda and special parliamentary majorities was precisely that it would force the political parties, and in particular the governing party, to reach for a consensus approach as the only way of obtaining the necessary constitutional requirements. But this theory has never matched the practice in the naturally competitive party-parliamentary system which they have bequeathed. Indeed the practice has generally been the opposite of the theory.

In the last fortnight there have been indications that the government and opposition in Jamaica have been privately discussing the need for constitutional reform, particularly in respect of the CCJ, acceptance of which has been hostile on the part of the Jamaica Labour Party, as they have been traditionally opposed to referenda. The Minister of National Security has indicated that a way is being sought to achieve the objective, particularly in the light of critical comments about most of the Caricom countries’ adherence to the British Privy Council, and the Privy Council’s hostility to capital punishment which Jamaicans strongly support.

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