Dr. Fraser- Point of View
October 9, 2009
Reflections on the Proposed Constitution – Pt 3

While I recognise the richness of some of the discussions that have taken place on the final draft of the proposed constitution and on some of the issues raised, I have to admit that taking place in the context of a “Yes” or “No” framework does detract greatly. One has to admit, too, that there is also a great degree of ignorance surrounding the Constitution. I have heard a number of questions posed by persons calling in to radio programmes and realise that these are honest questions and concerns by people seeking clarification on a number of things.{{more}} There are also questions being asked about what would happen to our currency when the Queen is removed from our constitution and also fears about our protection. Much of this betrays the level of political education and of our understanding of how government works. I really am more than ever convinced that the Referendum needs to be postponed. Many people will not read the constitution, at least in its entirety, and really reading a constitution properly should not be a hurried exercise and requires a level of academic discipline that is difficult to come by. At this time, a process of education should really have been taking place rather than subjecting the populace to a campaign with the end result being ‘Yes’ or ‘NO’. So, what in effect we have is a political battle that has begun, not necessarily to secure victory at the Referendum but at the elections which are to be held in the very near future.

Although we had regained our independence some 30 years ago, we have to admit that the legacy of colonialism still has a stronghold. Some of us believe that the presence of the Queen is necessary for our protection. This, of course, is nonsense. The monarchy was part of our enslavement and colonisation, but when we became independent, we retained our connections with the monarchy, creating the belief that this was too important to be cast aside. The same thing has happened with the Privy Council. Interestingly, despite all the talk about the Caribbean Court of Justice, there is nothing in the Constitution about the CCJ. Why? This baffles me. Section 263 subsection 1 under APPEALS reads “Subject to the provisions of section 74 of this Constitution generally and subsections (1) (4) and (5) of the said section 74 particularly, an Appeal shall lie from decisions of the Court of Appeal to the Judicial Committee, or to any other court having final appellate jurisdiction in respect of appeals from St. Vincent and the Grenadines, in substitution for the jurisdiction of the Judicial Committee…”

Of course, any other court having final appellate jurisdiction could very well refer to the Caribbean Court of Justice. If we are serious about providing this Court with final appellate jurisdiction why are we reluctant to say so in our Constitution? Is it that there are still some hidden fears? Interestingly, I have just come across some comments by Dame Bernice Lake of Anguilla, in response to the well publicised remarks of Lord Nicholas Phillips, President of the New Supreme Court of the UK. What is of particular interest to me is a reference to comments made by Dr. Gonsalves when he had just become Prime Minister. She writes, “Prime Minister Dr. Gonzalves, of SVG, on his assumption of office acknowledged the desirability of having such a court, but took the position that it could only come about when there was adequate reform and restructuring within our domestic legal systems which would guarantee an ethos out of which justice could be seen as a market product with which the people are satisfied. No reforms have been effected.”

One of my concerns with our political structure and of course with our Constitution has to do with the sovereignty of the people. For long we have complained that democracy in our tribalised Westminster system amounts to five minutes in a polling booth. After that the action moves to the Cabinet room and to Parliament. In the seventies when we were experimenting with ideas on government, one of the ideas that had been discussed is the system of Recall. Did the Committee ever consider this? Under Guiding Principles to the Constitution Section 5 (1) the following is stated; “The people are the true political sovereign of the State; power belongs to the people. Therefore, the will of the people shall be the basis of the authority of government. The people exercise their sovereignty by the process of democracy, through their Representatives and Senators in the National Assembly and through such other democratic organs as may be established by or under this Constitution.” We have not really advanced here for what are the other democratic organs that have been established that will ensure the sovereignty of the people? People’s power will once again only manifest itself on Election Day. Those whom we elect to Parliament will continue to assume that once you elect them you have given them the authority to do anything they want and that you can only question this at the next elections when they hope that enough goodies would be available to confuse you and lead you to surrender your power again.

Now that I have mentioned control by those we elect to Office, I want to look at the issue of “Privileges and Immunities of Parliament”. I have not heard this issue being discussed, but it is a serious one to which we need to pay attention. Politicians get into Parliament and they abuse people and make all kinds of remarks and say all kinds of things about people who are not in parliament and who have no recourse to defend themselves. Section 76 reads “ No civil or criminal proceedings may be instituted against any member of the Assembly for words spoken before, or written in a report to, the Assembly or a committee thereof; or by reason of any matter or thing brought by him therein by petition, bill, resolution, motion or otherwise…”. They have lifted part of this from section 46 of the current constitution. But then they added something that is very interesting, “or for the publication by or under the authority of the Assembly of any report, paper, votes or proceedings.” So they have extended this immunity to any publication that is authorised by the Assembly. But Crapaud smoke the pipe of any publication that is not authorised by the Assembly! This is a clause that we need to get rid of. Let the law of libel and other related laws apply to statements made in the House of Assembly. Politicians are quick to sue for defamatory statements made outside of parliament but get into parliament and make even worse statements sheltered by their immunity. We must get rid of this!

Section 5 (2) states “In formulating and implementing fundamental policy measures, whether or not to be translated into law, Government must constantly act primarily in furtherance of what is in the best interests of the people” Then section 7 states “This Constitution is founded on and is dedicated to enshrining the paramount constitution doctrines of… (v) good governance.” How is this determined? Who determines it? This is a joke. Often, those in Office act based mainly on what is in their best political interest. The sovereignty of the people will not exist because there is nothing there to suggest a change in the way politicians act and carry out the business of government. This is outside of the purview of the Ombudsman and there is not else there to ensure that those in power will act in the best interests of the people and that the will of the people will prevail. (To be continued)

Dr Adrian Fraser is a social commentator and historian.