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In August of 2008 – the Barrow administration introduced the Sixth Amendment to the Constitution in the House of Representatives. In the 20 months since then, the package of amendments has been tied up in the courts – the subject of multiple legal challenges. One of the most compelling has been the question of whether the government was obligated to hold a referendum before passing some of those amendments because they alter the fundamental rights granted to citizens under the constitution.

The Supreme Court and the Court of Appeal found that a referendum should have been held – though it was unclear at what stage. But dissatisfied with those decisions, government appealed to the Privy Council. Arguments were heard on January 18 and 19th in the UK with Senior counsel Lois Young appearing for the government and senior counsel Lisa Shoman for the citizens who had called for the referendum. A decision was received this morning and it vindicates government’s position. It found that the Prime Minister is no longer under any obligation hold the Referendum and allowed the appeal.

It’s the first win and a decisive one for government on what has been a lengthy back on forth on this controversial package of amendments. We spoke to both the Prime Minister and Shoman about the judgment. He claimed victory, while she claimed that a principle was established.

Hon. Dean Barrow, Prime Minister
“Well I am extremely pleased. I feel I am vindicated. I had criticized as you know the first instance judgment and in particular when the injunction had been issued by the Chief Justice. I see that the judgment makes clear that that injunction ought never to have been issued. The Court of Appeals’ upholding of the Chief Justice is also roundly criticized, maybe roundly isn’t the right word. I note that these Law Lords write in very muted, in a very well muted tone, but bottom line – it is a vindication of the position that the government held from the start and it is a victory that I will greatly savour and the way is now clear for us to proceed with the amendments.”

Lisa Shoman, Attorney
“Citizens had a right to expect a referendum would be held as part of a consultative process. What the Privy Council said and we always agree, it wasn’t a part of the legislative process as such but the Prime Minister had a duty and an obligation to consult with citizens before making these changes to fundamental rights and freedoms. In this case, that consultation didn’t take place.”

Jules Vasquez,
“There was a reasonable expectation, a referendum should have been held.”

Hon. Dean Barrow,
“What it says is that, you have to try to interpret the old Referendum Act, and that provision, in such a way as to save it from being completely useless. And so the Privy Council agreed that it would maintain the proposition that the referendum would under the old act have been required but as a matter separate and apart from the passage by the legislature of the constitutional amendments.”

Lisa Shoman,
“But what the Privy Council says is that this is consultative in nature only and government can ignore it at its political peril and they say so specifically. They also say that they have absolutely no doubt that citizens took this answer to ensure that the Prime Minister did not evade the responsibility that was placed upon him in the Referendum Act.”

Jules Vasquez,
“The responsibility to consult though, it is not the responsibility to act upon anything the referendum says.”

Lisa Shoman,
“Act upon such consultations correct.”

Jules Vasquez,
“Then doesn’t it point to an intrinsic defect and a disingenuousness in the Referendum Act that was legislated by your government?”

Lisa Shoman,
“I won’t go so far. In every democracy there are steps towards legal reform that we have to take. I was asked at the Privy Council why is it that the Referendum law was passed and because I had been a part of those who were advocating for political reform I was able to say quite frankly to the Privy Council that it was undertaken because people were asking for a greater say in their governance.”

Hon. Dean Barrow,
“To the extent that it was in the circumstances that existed then, some need to have an advisory referendum. I suppose that is some satisfaction for respondents but the central issue which is that any such requirement had nothing to do really, could not fetter the sovereignty of the legislature within the four corners of the constitution to change the constitution once the required majority was in place. That was the central issue, that is the central issue and that is what pleases me knowing.”

So now that the legal challenge on the referendum has been dissolved, when will the package of amendments come into law? It’s been passed by the House and the Senate and is awaiting the Governor General’s assent.