Division at Inception, The Grenada Constitution & Possibilities for Reform

The content originally appeared on: The Barnacle News
Joseph Ewart Layne

The 7th day of February 2024 marks the 50th anniversary of Grenada’s independence. The Golden Jubilee celebration was launched in a national event on the Carenage on 31st October 2023. The sum of fifteen million dollars has been budgeted for the celebrations. Scores of Grenadians from the diaspora are returning home for the event. The country is united behind the theme “One People, One Journey, One Future”.

The present show of national unity is in sharp contrast to what existed 50 years ago. Ironically the Carenage, where the Golden Jubilee celebration was launched, was the area where mass demonstrations protesting Grenada’s ascension to independence under Sir Eric Gairy were staged over a two-month period after “Bloody Sunday”, 18th November 1973. The demonstrations finally ended on January 21st, 1974, Bloody Monday. On that fateful day, members of the “Mongoose Gang” and “Secret Police” were sent in by Gairy to put down the mass protest. The assault on the massive demonstration, by some estimates numbering over 20,000, resulted in the death of Rupert Bishop and injury to scores of people including school children. Following the breakup of the demonstration there was widespread looting. Businesses owned by people considered to be opposed to Gairy were targeted.

Though the demonstrations were suppressed, a general strike which by then was ongoing continued until after 7th February 1974 with the result that the pre-independence flag was lowered, and the independence flag was hoisted in darkness.

The protests did not prevent Grenada’s ascension to independence but the circumstances in which Grenada obtained independence left a heavy hand on the independence constitution the effect of which we are still feeling 50 years later.

 The heavy hand of 1973-74

Grenada was the first of the small island states which now make up the OECS to obtain independence. Before Grenada, Jamaica, and Trinidad & Tobago (1962), Barbados and Guyana (1966) and Bahamas (1973) obtained independence.

Upon attaining independence all the countries obtained a constitution which was negotiated by the various interest groups represented by the governing and opposition parties and drafted by British legal draftsmen.

In Grenada’s case the negotiations were finalized in the Marlborough Conference which took place between 14th and 18th May 1973. The Order in Council granting Independence is dated 19th December 1973. The Constitution was attached to the Executive Order as a Schedule to it and came into effect on 7th February 1974.

One of the significant features of Grenada’s Constitution is that unlike the constitutions of the five English Speaking Caribbean islands which preceded it, it contains “deeply referendum entrenched clauses” i.e. clauses which require the approval of a super majority, two-thirds of the voters in referendum to alter them. None of the constitutions which preceded Grenada has such a clause. In the case of Jamaica, the first of the English-speaking Caribbean states to attain independence,  some clauses require the approval of a simple majority (50% plus one) in a referendum to be altered. Special majorities in Parliament are required to alter certain clauses in the constitutions of the other four. But no referendum is required.

The Grenada Constitution is the result of a set of complex factors including the opposition to, concerns about and fears of Britain conferring independence on Grenada with Eric Gairy at the helm. As recorded in the relevant British Hansard, in taking the decision to confer independence on Grenada and in determining the contents of the constitution for the future governing of Grenada, Britain considered not only what was said at the Conference but all the information available to it then.

By the time of the Constitutional Conference the political temperature in Grenada was rising. The NJM which would be in the forefront of the mass demonstrations in 1973-1974 was formed on 11th March 1973. At the time of the Conference the opposition produced a petition to the British Government expressing fears and concerns about Grenada proceeding to independence with Eric Gairy at the helm. That petition contained close to 20,000 signatures.

During the period that the independence constitution was being negotiated, widespread protest against Gairy was ongoing. The protest was motivated by fear that Gairy would abuse power if the oversight of the British was removed; that he would use the coercive power of the state to oppress his opponents, take their property, deprive them of pensions, steal elections and hold onto power by undemocratic means.

The referendum clause was therefore a direct result of the mass protest and widespread opposition to Grenada going into independence with Eric Gairy at the helm. The referendum clause was seen as one of the checks and balances on the plentitude of power being handed over to Eric Gairy without oversight of the colonial master.

Republicanism & the heavy hand of 1973-74

Today, we are a united people as far as the issue of independence is concerned. The independence issue has been settled. We are One People on that issue. At this juncture of our history, sections of Grenadians are raising issues such as republicanism, of removing the monarch as the head of state.

Thus far in the English-speaking Caribbean, Trinidad, Guyana, Barbados  and Dominica have removed the British monarch, and they have a national referred to as the “President’ as head of state.

Such a move in Grenada would on the face of it face the insurmountable obstacle of the super majority referendum requirement.

Section 19 of the Constitution is the section that recognizes His Majesty as the Head of State. That is one of the sections of the Constitution that requires the support of two-thirds of the voters in a referendum to be altered.

Our recent experience with referenda does not hold out much room for hope. Gairy at the height of his popularity obtained less than 60% of the votes in the 1972 elections. NNP swept the polls in Grenada on three occasions yet never obtained more than 62.47% of the votes. In recent times we have seen two referenda fail, falling woefully short of the required two-thirds on each and every issue put before the population. One can reasonably say that it is improbable that the super majority support is obtainable for a move away from the monarchy to a republic.

No heavy hand on the Supreme Law Clause: was it a slip of the pen?

However, in my humble opinion, while on the face of the Constitution, the support of a super majority in a referendum is required to abolish the monarch as head of state, on deeper analysis, it is at least arguable that the Constitution itself provides an avenue to proceed to make such alteration without the restriction of the super majority in a referendum.

What is my reason for saying so? Section 106 of the Grenada Constitution declares the Constitution to be the supreme law of Grenada and states that any law which is inconsistent with any provision of the Constitution is to that extent void. Section 106 therefore sets out the scope and extent of the supremacy of the Constitution.

However, interestingly, section 106 is not one of the sections of the Constitution that requires a referendum to alter it. All that is required to alter section 106 of the Constitution is the support of a special majority (two-thirds) in Parliament. This contrast starkly with the Jamaica Constitution where section 2, the Supreme law section of the Jamaica Constitution, is referendum entrenched and requires the approval of a majority of those voting in a referendum if it is to be altered.

“The independence agreement”

In Hinds v. The Queen (1975), one of the first of several seminal cases interpreting Caribbean constitutions, the Privy Council opined that the constitution “embody what is in substance an agreement reached between the representatives of the various shades of political opinion in the state as to the structure of the organs of government through which the plentitude of the sovereign power of the state is to be exercised in the future.”  

In this context an alternative way of viewing the omission of section 106 from the referendum entrenchment requirement is to see it as part of the “independence agreement” including the following:

The immediate granting of independence  despite the country being in turmoil with tens of thousands of people in the streets protesting the ascension to independence under Eric Gairy.A constitution heavily laden with referendum entrenched provisions requiring a super majority (two-thirds approval) to be altered.A ‘loophole’ (non-referendum entrenchment of the supreme law clause) that could be used by future generations to effect wholesale change operating from within the ambits of the very constitution.

Possibilities for fundamental change

It is my humble submission that the non-referendum entrenchment status of section 106 of the Constitution offers great possibilities with regard to constitutional reform. It could be a gateway for repatriation of the constitution; for replacing the constitution handed to us by the British Government in 1974, as an appendix to the executive order conferring independence, by a constitution coming out of the bowels of our people and approved by Grenadians in a referendum requiring the support of a majority.

If the Grenadian people approve, such a constitution could include among other things:

The abolition of the monarchy;Replacement of the Privy Council by the Caribbean Court of Justice as Grenada’s final court.Renaming the Supreme Court from “Supreme Court of Grenada and the West Indies Associated States” to “Easter Caribbean Supreme Court”.Renaming the State of Grenada from simply “Grenada” to “Grenada Carriacou and Petit Martinique”; andA clause declaring the new Constitution to be the supreme law of Grenada and requiring support of a majority in a referendum to alter the supremacy clause.

Heavy hand by implication

The obvious argument against the submission that the supremacy clause can be altered in the manner  suggest here, to achieve the results suggested herein, is that despite the fact that the supremacy clause on its face is not referendum entrenched, it is entrenched by necessary implication; and any change to it that alters any of the referendum entrenched clauses must be supported by a referendum.

Let’s debate. Let’s have serious and constructive discussions towards constitutional reform to determine how we want to see our country governed over the next 50 years.

Joseph Ewart Layne is the holder of three law degrees including a Master of Laws Degree in Legislative Drafting from UWI. He is also the holder of the Legal Education Certificate with Merit from Hugh Wooding Law School.

He holds a BSc. (First Class Honours) in Applied Accounting from Oxford Brookes University and is a member of the ACCA.