COMMENTARY: “Constitutional Reform Is All In The Design And Not Just Form”

BY Rahym R. Augustin-Joseph (Mr.)

Often times, when critics of Constitutional Reform within the Caribbean articulate their reservations about amending the Constitution, they often suggest, as some Lawyers, incorrectly do, that Laws and Constitutions are immutable, unamendable, set-in-stone, and to be treated as a will and testament. This is actually contrary to the interpretation of Constitutions, which have been noted for example by eminent jurist such as Lord Bingham in Reyes v. R [2002], that in effect, while reverence must be paid to the language of the Constitution, but it must not do so, as if it were found in a will or a deed or a charterparty, but instead, a generous and purposive interpretation is to be given to the Constitution.

I am not suggesting however that at every sitting of Parliament, one must tinker and amend the Constitution. But appendaged to that argument is also implicitly a lack of recognition that, even if one is ‘borrowing’ amendments from other Western democracies, to strengthen the Constitutional architecture within the Caribbean, the Amendments should not be discarded because one believes they cannot be ‘copied and pasted’ verbatim because our systems are Constitutionally incompatible. Instead, one should recognise that the compatibility of the Amendments from other democracies, lies, not solely in their form, but, in their ‘design.’ It is all present in the design. Additionally, laws, like Constitutions are all man made, and as such can be unmade and reformed, to be in sync with the aspirations, hopes and ideals of the peoples that form the polity it represents.

This was particularly the case, in an article written in this paper, by Gavin Emmanuel, who suggested that “The Reform Proposals of Fixed election dates and Term Limits for Prime Ministers.. when held against the Constitutional architecture of Antigua and Barbuda, reveal themselves to be not merely impractical but structurally incompatible with the Westminster system that the 1981 Constitution enshrines.”

However, this is not particularly accurate, because it falls into the proverbial trap that suggests that amendments that do not fit the imposed model of the Westminster system of government are unable to be included within our architecture, when the only net effect of this is not only placing constitutional handcuffs on our systems, but defining and locking our future constitutional journey by how close it resembles Westminster. It is an uncritical, and unwise acceptance as Sir Eric Williams and others did, when they suggested that if the British Constitution is good for Britain, it is also good for us in the Caribbean.

It is attempting to validate our reform, only to the extent that it resembles Westminster, as the typical ‘Mimic Men’ and ‘Choir Boys’ that we have become as noted by V.S. Naipaul and Mighty Gabby respectively. The reality of Constitutional Reform and Constitutional making is such that, any Amendment- whether borrowed or indigenous, can withstand Constitutional scrutiny, if is designed accurately, and does not need to be snugly fitted within the Westminster Constitution as we understand it.  

If that were the case, then we would never jettison the Judicial Committee of the Privy Council, the King as our Head of State, or expand human rights through judicial interpretation because these are incompatible with the underlying premise of the Westminster system of government that informs our Constitution. However, we did so, under the continued recognition that, not only must independent people engage in reforms that they desire in their polity, but that the validity of the reform is based on its design.

As such when Emmanuel suggests that, a fixed timeline is incompatible with Westminster, not only is he ignoring other Westminster modelled countries and states such as Canada, or Australia that have included fixed election dates within their countries, without any questions of incompatibility, but he is falling into the proverbial colonial trap of validating our amendments to colonial acceptance, as distinct from us being one of the first to design it in a way that fits within our Constitutional architecture.

Thus, Emmanuel, is accurate that the Constitution of Antigua under section 60 (1), provides the Governor General the power to dissolve the Parliament upon the advice of the Prime Minister, after which there is an elections date provided. However, if the country determines in their Constitutional reform that they are interested in clear timeline for a term, with an election date being written within the Constitution, then, this section would be amended or removed. The Constitution is not a will and testament, as noted by Lord Bingham, such that, if the country determines that they are interested in fixed election dates, this section would be deleted as part of the reform process. It is not constitutional rocket science or gymnastics, and nor would this section stand as it is presently, cognisant that, one cannot have the power to dissolve the Parliament, if the Constitution would now dictate the date for an election.

But, again, it is all in the design, and it is not a wholesale carrying over of the fixed election date if one is averse to that transplantation. As such, if the Constitutional Reform process believes, that there must be ‘emergency circumstances’, which are clearly defined in the Constitution wherein the Governor General can act upon the advice of the Prime Minister to dissolve the Parliament and proceed to a general election, before the prescribed fixed date in the Constitution, then it is permissible with our Constitutional architecture. These emergency circumstances could be defined within the text of the Constitution and must be satisfied before a dissolution of Parliament and subsequent calling of an election, utilising thresholds in the house and also possibly the Office of the Governor General.

As such, Emmanuel is incorrect in suggesting that the fixed date election “tells a government (and the electorate) that no matter what happens in the chamber, no matter how thoroughly confidence has collapsed or how urgently the country requires fresh direction, the vote must wait.” Because, embedded within the design, can be defined circumstances, which predetermine “when the country requires fresh direction or there is a lack of confidence in the country.”

Interestingly enough though, it is always comical, how we imbue such rationality within political figures, suggesting that it is when there is a confidence deficit that they call ‘snap elections’ as distinct from when there is a perceived clear ‘political’ or partisan advantage for a possible win of the upcoming general elections. In some instances, when there is a reduction of confidence, politicians attempt to hold on as much as they possibly can, because it is their hope that there will be a magic wand or a rainbow later within the term to increase their political chances, or alternatively that they are aware that their political chances are doomed and it is much better to stay within government until they are unable to stay one day later, and call the elections. As such, the intention of the flexibility of the calling of elections, seem in practice to be less about correcting a political crisis or providing the people with an avenue to politically exhale, as much as it is about ‘strategic political advantage’, which must be questioned against the fairness, predictability, equity among other democratic benchmarks within our system, as opposed to this one-up-manship. 

Moreover, a fixed date is also not incompatible with the ‘reserve power’ of the Governor General to unilaterally dissolve parliament after the successful passage of a no confidence motion in the Prime Minister as suggested by Emmanuel citing section 60 (4). Put simply, the Governor General, if after bearing witness to a no confidence motion passed in the House against a Prime Minister, and they [Prime Minister] do not resign, and another individual ascends to the post, can trigger an election through the dissolution of the Parliament.

Emmanuel suggests pursuant to the above mentioned that “If the date is set by statute, the Governor-General’s constitutionally mandated power of discretionary dissolution becomes a source of conflict rather than resolution. Would the statutory date override the constitutional trigger? The answer, in a system where Section 2 declares the Constitution the “supreme law” of Antigua and Barbuda, is that any inconsistent statute would be void. A fixed-date law enacted without a constitutional amendment would not simply be inadvisable; it would be constitutionally vulnerable.” 

However, this is not particularly accurate as it is all in the design. As noted above, there can be exceptions to the fixed date provision that would be written into the Constitution of Antigua and Barbuda, which stipulates that, the date may not be followed for an election in circumstances where, there is a vote of no confidence and the Prime Minister decides to not resign, ensure there is a successor  or an election is called. It can be baked into the provision. Additionally, it can then determine whether the clock of the electoral term is restarted or will continue as per normal and then end on the particular fixed date that the Constitution provided.

Moreover, this argument that it is somehow, ‘unconstitutional’, because there would be a fixed date law enacted without a Constitutional amendment, is also sidestepping because the proposition has never been to adopt the Fixed Election Date Legislation from the UK, which had to have been a Statute, because the UK does not have a written constitution per se. Instead, the reformers have always suggested that the best approach is amending the Constitution to include the fixed date of elections as a Constitutional provision that is thus protected and cannot be seen as an ‘unconstitutional’ constitutional amendment.

As such, the design could entail a multiplicity of options provided, if the outcome is truly to reduce the prerogative powers of the Prime Minister of Antigua and Barbuda, and the respective Caribbean countries to call ‘snap elections’ when they so desire. This design would obviously be to first remove the provision that empowers that within the Constitution and replace it with another provision that delineates the date of the general elections to be held every five years, while still providing enumerated exceptions for emergencies, votes of no confidence among other realities that can trigger an election outside of the stipulated period for the calling of an election.

In conclusion, there is an urgent need for us to rethink the imposed Westminster system of government, and not see it as an immutable and unchanging Constitutional architecture, that continues to be out of sync with the Constitutionalism that we want within the Caribbean, which has been detailed by numerous political scientists, Constitutional Reform Commission Reports, and the general calls from the people within the society of the principles that they want within their body politic. As such, in order to do so, much of it is in the design, even if one is borrowing from other democracies. It is all in the design.

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