THE RESURGENCE of calls to abolish the Privy Council has caused another long-standing legal question to resurface: Should the law be amended to allow for referenda?
The answer is yes, but with big caveats.
Saira Lakhan, president of the Assembly of Southern Lawyers, believes any change to accede to the CCJ would be so fundamental as to merit the people deciding.
“It is best that the Constitution be amended to provide for a referendum and let the voice of the people be heard on their choice of the final appellate court,” Ms Lakhan said this month.
Other issues might also usefully be resolved through a plebiscite. For instance, a referendum could conceivably settle the long-standing matter of Tobago autonomy once and for all.
Politicians like to assume that when people vote them into office, they do so after approving the hundreds of policy positions in their manifestos. Such an assumption, however, clearly does not always hold.
In some cases, even if we accept the manifesto-mandate logic, election results are completely contradictory. Consider how property tax – which we support – was axed in 2010 by voters, then embraced in 2015; the Revenue Authority similarly.
A referendum on a discrete, clearly-phrased and realistic question can clarify things.
But these polls are no silver bullet when it comes to refining our understanding of public sentiment and complex matters, particularly those in which the issues are convoluted, such as the Tobago issue (what degree of autonomy?) or issues relating to human rights, law and the death penalty.
In fact, they could substantially muddy the water.
For instance, if a poll is approached as an opportunity for disgruntled citizens to register a protest vote, the outcome will be distorted.
The UK’s Brexit vote of 2016 remains the most infamous example of a campaign of short-term factors ushering in unwanted long-term repercussions. The UK is still nursing the unwelcome consequences of that shock result, which saw its grocery shelves and petrol pumps emptied, left citizens stranded or unable to stay in retirement homes abroad, damaged trade and triggered labour shortages.
The ongoing constitutional reform exercise should carefully weigh this issue and encourage further dialogue.
While Ms Lakhan suggests a change in the Constitution would be required, there might be a less difficult way to bring about the same result.
A government could simply allow for election ballots to be expanded to include specific questions alongside the issue of the choice of representative, as pertains in other countries such as the US.
Authorities might also wish to consider whether a mechanism for convening non-binding referenda is more palatable. Such polls would generate political, but not legal, imperatives on governments to give the people what they want, within reason.
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