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Mandatory constitutional referendums in Commonwealth Caribbean constitutions: placing ‘people’ at the centre of the constitution?

2023; Taylor & Francis; Volume: 34; Issue: 2 Linguagem: Inglês

10.1080/09615768.2023.2254674

1757-8442

Cynthia Barrow-Giles, Ronnie R.F. Yearwood,

Legal Language and Interpretation

Click to increase image sizeClick to decrease image size DISCLOSURE STATEMENTNo potential conflict of interest was reported by the author(s).Notes1 Stephen Tierney, Constitutional Referendums: The Theory and Practice of Republican Deliberations (Oxford University Press 2012) Stephen Tierney, 'Constitutional Referendums: A Theoretical Enquiry', (2009) 72:3 Modern Law Review 360-83. Tierney references data from Lawrence Leduc, The Politics of Direct Democracy: Referendums in Global Perspective (Broadview Press 2003) 29 that estimated 39 out of 58 functioning electoral democracies, with a population of more than three million, conducted at least one national referendum between 1975 and 2000.M Qvortrup, 'Is the Referendum a Constitutional Safeguard?' (1999) Initiative and Referendum Institute at the University of Southern California accessed 31 July 2023, stated that between 1945 and 1997, 103 out of a total of 128 referendums were uncontrolled referendums i.e., either obligatory constitutional referendums, abrogative referendums, initiatives, or minority veto referendums).2 For a discussion on the theory of referendums, see S. Tierney, Constitutional Referendums: A Theoretical Enquiry (n 1).3 Albert V Dicey, Introduction to the Study of the Law of the Constitution (LF ed., Liberty Fund 1915); M Qvortrup, 'A. V. Dicey: The Referendum as the Peoples Veto' (1999) 20:1 History of Political Thought 1–16.4 Carl Schmitt, Legality and Legitimacy (Duke University Press 2004).5 For a discussion and Dicey and Schmitt on the referendums, see M Qvortrup and L Trueblood, 'Schmitt, Dicey, and the power and limits of referendums in the United Kingdom' (2021) Legal Studies.6 See for a brief history of referendums, M Qvortrup, 'Referendums, democracy and separatism' (2020) Review of Nationalities.7 John Locke, Two Treatises on Government (first published 1690, Cambridge University Press 1988) 42. Locke stated that "if a controversie arise betwixt a Prince and some of the people, in a matter where the law is silent, or doubtful, and the thing be of great consequence, I think the proper Umpire in such a case should be the Body of the People".8 Jean-Jacques Rousseau, The Social Contract and Other Later Political Writings (Edited and translated by Victor Gourevitch tr, 2ndedn, CUP 2019) 35–152.9 M Qvorturp 'Referendums, democracy and separatism' (n 6).10 N Johnston, House of Commons Briefing Paper 7692 'Referendums' (31 August 2016) 6 accessed 31 July 2023.11 Ibid.12 See for example, Iain Black, Paul Baines, Ning Baines, Nicholas O'Shaughnessy and Roger Mortimore, 'The Dynamic Interplay of Hope vs Fear Appeals in a Referendum Context' (2023) 22:2 Journal of Political Marketing; James Tilley and Sara B. Hobolt, 'Losers' consent and emotions in the aftermath of the Brexit referendum' (2023) West European Politics; Thomas Karv, Kim Backström and Kim Strandberg, 'Consultative referendums and democracy - assessing the short-term effects on political support of a referendum on a municipal merger' (2023) 49:1 Local Government Studies.13 The Caribbean is in fact not among the "usual suspects" for scholarly examination in this area. The usual suspects then to be Ireland, Switzerland, Canada, Australia and Turkey, though increasingly scholarly attention has turned to Latin America and Africa. See Richard Albert and Richard Stacy (eds), The Limits and Legitimacy of Referendums (Oxford University Press 2022). For early work on entrenchment provisions in Caribbean constitutions, see Francis Alexis, Changing Caribbean Constitutions (Antilles Publications 1983) 12–49.14 For discussion of the basic structure doctrine, see the key Indian case: Kesavanand Bharati v Kerala [1973] 4 SCC 225, [1973] AIR SC 1461. As Derek O'Brien stated, the case "asserts that the law-making powers of a legislature are not unlimited in as much as they do not extend to altering the 'basic structure' of the constitution." See Derek O'Brien, 'The Basic Structure Doctrine and the Courts of the Commonwealth Caribbean' (UK Const. L. Blog, 28 May 2013) accessed 03 August 2023. The basic structure doctrine made its way into Caribbean constitutional jurisprudence through the Belize courts in a series of cases starting with Bowen v Attorney General BZ 2009 SC 2 (CARILAW) 13 Feb 2009. See for a full discussion the basic structure doctrine and the Belize cases, Tracy Robinson, Arif Bulkan and Adrian Saunders, Fundamentals of Caribbean Constitutional Law, 2nd edition (Thomson Reuters 2021) 183–186.15 See Ronnie Yearwood'Barbados' Transition to a Republic: 'Republic in Name First, Constitutional Reform After', 'Stuff and Nonsense!'' (2022) Journal of Parliamentary and Political Law/Revue de Driot Parlementaire et Politique 16; Cynthia Barrow-Giles, 'Barbados's Long-drawn-out Promise of a Republic' (ConstitutionNet, 30 August 2021) accessed 3 August 2023; Ronnie Yearwood and Cynthia Barrow-Giles, ''Potemkin village: the Barbados republic status transition advisory committee" (2021) 110(4) The Round Table; Cynthia Barrow-Giles and Rico Yearwood, 'The Constitutional Reform Commission of Barbados: Much Expectation, Great Skepticism' (ConstitutionNet, International IDEA, 12 August 2022) accessed 3 August 2023; Ronnie Yearwood and Rashad Brathwaite, 'Review of Barbados Constitutional Reform' in The International Review of Constitutional Reform (2020) Luis Barroso and Richard Albert (eds) September 2021, 26–31.16 Ibid.17 Albert and Stacey (n 13).18 Ibid, (n 13).19 Tierney, Constitutional Referendums: The Theory and Practice of Republican Deliberations (n 1).20 Albert and Stacey (n 13) 13.21 Ibid, 14.22 Tierney, Constitutional Referendums: A Theoretical Enquiry (n 1).23 Xenophon Contiades and Alkmene Fotiadou 'The People as Amenders of the Constitution' in Xenophon Contiades and Alkmene Fotiadou (eds), Participatory Constitutional Changes: The People as Amenders of the Constitution (Routledge, 2017).24 Tierney, Constitutional Referendums: The Theory and Practice of Republican Deliberations (n 1) 9.25 Xenophon Contiades and Alkmene Fotiadou '(n 23) 11.26 Ibid, 11.27 Ibid, 11.28 Richard Albert, 'Discretionary Referendums in Constitutional Amendments', in Richard Albert and Richard Stacey (eds), The Limits and Legitimacy of Referendums (Oxford University Press 2022).29 Tierney, Constitutional Referendums: The Theory and Practice of Republican Deliberations (n 1) 11.30 Ibid, 12.31 Ibdi.32 Stephen Tierney,' Reclaiming Politics: Popular democracy in Britain after the Scottish Referendum' (2015) 86 (2) The Political Quarterly accessed 02 August 2023.33 Contiades and Fotiadou (n 23) 15.34 Ibid.35 Tierney, Constitutional Referendums: The Theory and Practice of Republican Deliberations (n 1).36 The first was on a national poll on the voting system and the second was in Wales on the question of the devolution of further powers to the Welsh national assembly.37 To facilitate the referendum on the MMP, the government passed the Electoral Referendum Act in 2010 and the date of the referendum was scheduled for November 2011. The Poll was affirmative with 58 percent of the 71.5 per cent turnout voting to maintain the system.38 See Gwion Lewis 'The Government of Wales Act 2006' (2007) 12(3) Judicial Review, accessed 2 August 2023.39 Ibdi.40 The House of Lords Constitutional Committee. Constitution Committee, Twelfth Report Referendums in the United Kingdom. accessed August 01 2023.41 Ibid.42 S Tierney, 'Reclaiming Politics: Popular democracy in Britain after the Scottish Referendum' (2015) 86 (2) The Political Quarterly accessed 2 August 2023.43 See Henry W. Ehrmann, 'Direct Democracy in France' (1963) 57 (4) The American Political Science Review accessed 02 August 2023.44 Simeon McIntosh, 'Change Making Through Constitutional Reform in the Commonwealth Caribbean' (Constitutional Reform Forum TT.org, 19 April 2013) (On file with the author); M. Demerieux, Fundamental Rights in Commonwealth Caribbean Countries (Cave Hill, 1995); Francis Alexis (n 13);R Drayton, 'Whose Constitution? Law, Justice and History in the Caribbean' Judicial Education Institute of Trinidad and Tobago Sixth Distinguished Jurist Lecture 2016.45 See for a fuller discussion, Cynthia Barrow-Giles, Introduction to Caribbean Politics (Ian Randle Publishers, 2002).46 Minister of Home Affairs v Fisher (1979) 44 WIR 107 at 112 states that Caribbean bill of rights share a "family resemblance."47 See C Barrow-Giles, 'Regional Trends in Constitutional Developments in the Commonwealth Caribbean' (Conflict Prevention and Peace Forum, January 2011).48 See note 44.49 Ibid.50 See Trevor Munroe, 'The Politics of Constitutional Decolonization - Jamaica 1944–62' (1983) ISER.51 Ibid, 40.52 Cynthia Barrow-Giles Introduction to Caribbean Politics (Ian Randle Publishers, 2002).53 Ibid.54 Ibid.55 McIntosh (n 44).56 McIntosh (n 44).57 McIntosh (n 44).58 Ibid.59 G. K. Lewis, The Growth of the Modern West Indies (McGibbon & Kee, 1968).60 Ibid, 388.61 See Cynthia Barrow-Giles, Introduction to Caribbean Politics for a fuller discussion of the process of constitutional decolonization in the Commonwealth Caribbean.62 Ibid.63 McIntosh (n 44).64 W. Elliot Bulmer, Westminster and the World: Commonwealth and Comparative Insights for Constitutional Reform (Bristol University Press 2020).65 For example, the 2007 Thailand Constitution included an explicit unamendability clause that stringently prohibits any amendments to the constitution that will have the effect of impacting, 'the democratic regime of the government, with the King and Head of State or changing the form of the State. Indeed, several attempts to amend the constitution has been met with court challenges leading critics to contend that the 2007 constitution was unrevisable and was essentially marked by an anti-electoral spirit. See Yani Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (Oxford University Press, 2017) for a fuller discussion of the unamendability of the Turkish constitution. Covered under the Basic Structure Doctrine, this unamendability principle is also rooted in the Indian constitution which itself has been exported to neighbouring countries such as Malaysia, where the basic structure doctrine itself has been challenged in the courts, though a recent judicial decision has reversed an earlier inclination that the unamendability clause was unconstitutional.66 Ibid. 68.67 Bowen v Attorney General BZ 2009 SC 2 (CARILAW) 13 Feb 2009.68 Derek O'Brien (n 14). See generally n 14.69 Tracy Robinson, Arif Bulkan and Adrian Saunders (n 14) 201.70 Ibid.71 Jamaica Constitution, 1962.72 Saint Vincent and the Grenadines Constitution, 1979.73 Belize Constitution, 1981.74 Richard Albert 'Constitutional handcuffs' (2017) 3(1), Intergenerational Justice Review, 663–715 accessed July 30, 2022.75 Ibid.76 Cynthia Barrow-Giles and Rico Yearwood, 'Monarchism to Republicanism in the Commonwealth Caribbean: Pathways, Progress, and Pitfalls' Social and Economic Studies, (forthcoming).77 Albert and Stacey (n 13).78 See, Clive Thomas 'The Current Crisis in Guyana' [1982], Ufahamu: A Journal of African Studies accessed August 04, 2023. Kate Quinn, 'Colonial legacies and post-colonial conflicts in Guyana' in Post-Colonial Trajectories in the Caribbean The Three Guianas, eds. Rosemarijn Hoefte, Matthew L. Bishop and Peter Clegg (Routledge 2017), 19–20.79 Matthew Bishop, 'Slaying the 'Westmonster' in the Caribbean? Constitutional Reform in St Vincent and the Grenadines' (2010) British Journal of Politics and International Relations.80 Ibid, 2.81 Wendy C. Grenade, 'Direct democracy and party politics in the Commonwealth Caribbean: an analysis of the 2016 referendum on constitutional reform in Grenada' (2020) Commonwealth & Comparative Politics 1.82 Bishop (n 79) 6.83 Ibid.84 The 1999 Constitution Reform Commission Act stipulated the representative bodies to be nominated to the Constitutional Reform Commission (CRC) including all the political parties and major civil society groups. An added precaution was the decision that the CRC would select its own chairman rather than a chairman being appointed by the government as is the normal practice regionally.85 Despite the inclusion of the opposition political parties from the outset of the establishment of the Constitutional Reform Commission in St Vincent and the Grenadines, following the submission of the report on constitutional reform and the draft constitution, the opposition leader at the time, during the parliamentary debate on a new constitution for the country made it clear, that the opposition would vote no to the reforms and would also ask its supporters to vote no in the mandated referendum.86 There was a dissenting opinion by Justice Mitchell.87 See Eastern Caribbean Supreme Court of Appeal, In the Matter of the Attorney General's Reference, SLUHCVAP2012/0018, Judgment, 26 May 2013 (unreported) Para 36.88 Ibid.89 Bishop (n 79) 15.90 Ibid, 10–11.91 Grenade (n 81) 11.92 See Oren Gruenbaum ''Grenada/Antigua and Barbuda: A Colonial Relic Lives On" (2018) The Round Table, for the discussion regarding eminent Caribbean diplomat, Sir Ronald Sanders commentary on the Grenada and Antigua and Barbuda referendum.93 Ibid.94 Ibid.95 Grenade (n 81) 11.96 St. Vincent Parliament Hansard, 1 September 2009, 17.97 Ibid 17.98 Ibid 20.99 Bishop (n 79) 12.100 O'Brien (n 14) 9.101 Tierney, Constitutional Referendums: The Theory and Practice of Republican Deliberations (n 1) 18.102 Ibid, 14.103 A. Kalyvas, 'Popular Sovereignty, Democracy and Constituent Power' (2005) 12 Constellations 223, 237.