CHANGING OUR CONSTITUTION A Comparison of the Existing Constitution of and the Working Document on Constitutional Reform for Public Consultation

The University of the West Indies St. Augustine Campus Trinidad and Tobago, West Indies CHANGING OUR CONSTITUTION

A Comparison of the Existing Constitution of Trinidad and Tobago and the Working Document on Constitutional Reform for Public Consultation

By: Dr. Hamid Ghany

Dean, Faculty of Social Sciences and Coordinator, Constitutional Affairs & Parliamentary Studies Unit,

The University of the West Indies, St. Augustine, Trinidad, West Indies

Jointly published by:

The Draft Constitution Secretariat, Office of the Prime Minister of the Republic of Trinidad and Tobago

and

The Constitutional Affairs and Parliamentary Studies Unit, University of the West Indies, St. Augustine, Trinidad, West Indies

© 2009 Dr. Hamid Ghany

Printed in Trinidad and Tobago by: Cassims Commercial Enterprises [email protected] | 868-791-0903 CHANGING OUR CONSTITUTION

TABLE OF CONTENTS

Introduction ...... 4

(i) and the Introduction of a Nominated ...... 6

(ii) The Office of Speaker in Trinidad and Tobago ...... 7

(iii) The Judiciary ...... 10

(iv) The President ...... 13

(v) The Westminster-Whitehall Model in Trinidad and Tobago ...... 17

(vi) Notes...... 21

Part One – Constitutional Controversies and Constitutional Reform ...... 23

Part Two – The Working Document on Constitutional Reform for Public Consultation ...... 32

Part Three - Comparison with the Existing Constitution ...... 41

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Introduction

The island of Trinidad was claimed by Christo- of Paris of 1783. The British captured the island pher Columbus in 1498 on behalf of Spain. The in 1793 during the French and Napoleonic Wars, island was a Spanish colony until its capture by but it was restored to France by the Treaty of Britain from Spain during the French and Napo- Amiens in 1802. However, it was recaptured by leonic Wars in 1797. Formal cession of Trinidad Britain in 1803 and was formally ceded to Britain by Spain to Great Britain was effected by the Treaty by the Treaty of Paris in 1814. 2 of Amiens in 1802. 1 As a consequence of the Trinidad and Tobago Act Columbus sighted Tobago in 1498 however the 1887 3 of the British Parliament, the two colonies island remained unoccupied by any imperial power were joined as one under the authority of an Or- until 1632 when some Dutch colonists tried to der-in-Council made on 17th November, 1888 4 that settle the island but were forced out by came into effect on 1st January, 1889. Amerindians and Spaniards in 1634. This Order-in-Council also made provision for the Two proprietary grants were made by King Charles abolition of the of Tobago. The I for British settlers in respect of Tobago. The first unification of these two British colonies, with was made to the of Pembroke in 1628 and, completely different historical backgrounds, cre- the second, was made to the of Courland ated the need for the British Government to es- (the Dukedom of Courland was a coastal district tablish a single for the twin-island of what is today Latvia and was under British pro- colony and also to ensure the continued operation tection) in 1642. of all laws in force in Trinidad and all laws in force in Tobago. A number of Courlanders settled in the north of the island, while a colony of Dutch settlers estab- This was effected by way of an Order-in-Council lished themselves in the south of the island. The made on 20th October,1898 5 that came into force Courlanders were eventually overpowered by the on 1st January, 1899. This Order-in-Council made Dutch settlers and they remained in possession of Tobago a ward of the colony of Trinidad and To- Tobago until surrendering their rights to the is- bago. It further provided that all laws that were in land in 1662. force in Trinidad on 1st January, 1899 would also extend to Tobago and that all laws that were in In 1664, King Charles II renewed the grant of force in Tobago, at that date, that differed from Charles I that had been made to the Duke of the laws of Trinidad ceased to be in force. The Courland in exchange for the Duke’s surrender of Legislature in Trinidad became the Legislature for his African interests in the River Gambia area to the twin-island colony and all future laws enacted Charles II. In 1681, the Duke of Courland trans- by that legislature would be deemed to extend to ferred his to a company of London merchants. Tobago. 6

During the American War of Independence, France In this way, the British Government made a po- captured Tobago in 1781 and the formal cession litical and legal decision that would have ramifi- of the island to France was effected by the Treaty cations for the twin-island colony long after its

4 CHANGING OUR CONSTITUTION unification by imperial law. The political, psycho- For the 1956 general elections, the Legislative logical and legal effect of the decisions expressed Council consisted of twenty-four elected members, in the 1899 Order-in-Council continue to mani- five nominated members and two official mem- fest themselves in the post-independence era of bers. In 1961, a bicameral legislature was intro- the twin-island state of Trinidad and Tobago. duced which consisted of twenty-one nominated Senators in a Senate and thirty elected M.P.s in a In 1924, the first major reform towards the intro- House of Representatives. At independence in duction of elected representation into the Legisla- 1962, the Senate was increased to twenty-four and tive Council of Trinidad and Tobago was made in 1966 the House of Representatives was in- under the authority of the Trinidad and Tobago creased to thirty-six M.P.s. (Legislative Council) Order in Council 1924 7 which was subsequently amended in 1928, 1941, In 1976, Trinidad and Tobago became a republic 1942 and 1945 before being revoked and replaced within the Commonwealth and a President re- by a new Order-in-Council that provided for a new placed Her Majesty Queen Elizabeth II as Head Constitution for the colony in 1950. 8 of State, while the Prime Minister remained as Head of Government in a parliamentary system In 1924, the Legislative Council consisted of the of government. It retained its bicameral system (who also presided over its sittings), with a House of Representatives of thirty-six M.P.s twelve official members and thirteen unofficial and an enlarged Senate of thirty-one Senators. In members (of whom six were nominated and seven 2007, the number of seats contested for the House were elected). In 1941, the number of elected of Representatives was increased to forty-one. members was increased to nine and the number of official members stood at three. 9

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Eric Williams and the Introduction of a Nominated Senate

The advent of the People’s National Movement advice of the leader of the Opposi- (P.N.M.) led by Dr. Eric Williams, who became tion; and the Chief Minister following the 1956 general elec- (c) seven shall be appointed, to represent tions, changed the political landscape of Trinidad religious, economic or social interests and Tobago in relation to the structure of the Leg- in the Territory, by the Governor, act- islature. One year before Williams became Chief ing after consultation with such per- Minister, he embarked on a lecture series through- sons as, in his discretion, he consid- out Trinidad and Tobago in which he publicly pro- ers can speak for those interests and claimed his preference for a bicameral system. ought to be consulted.” 11

Once in office, he opened negotiations with the In 1962, Trinidad and Tobago attained fully re- Colonial Office to bring about such a change and sponsible status within the Commonwealth and after five years of political dialogue, both locally this bicameral system was, in general, retained and with the Colonial Office, Trinidad and Tobago with some modifications to the numbers of Sena- had its legislature changed from a unicameral to a tors with the number appointed on the advice of bicameral system with an elected House of Rep- the Prime Minister being set at thirteen (13) and resentatives and a nominated Senate. the number appointed on the advice of the Leader of the Opposition being set at four (4). The seven In 1961 Trinidad and Tobago was granted a Con- Senators who were previously appointed by the stitution that conferred full internal self-govern- Governor in his discretion were, at independence, ment on the Colony. 10 General elections were held to be appointed by the Governor-General on the in December 1961. The actual provisions in the advice of the Prime Minister after the Prime Min- Constitution mirrored exactly those that had been ister had consulted those religious, economic or agreed since 1959 between the Government and social bodies or associations from which the Prime the Colonial Office and read as follows : Minister considered that such Senators should have been selected. 12 “15. (1) The Senate shall consist of twenty-one members (in this Constitution referred Since 1976, the Senate has consisted of sixteen to as “Senators” who shall be ap- Senators appointed by the President on the advice pointed by the Governor by instru- of the Prime Minister, six Senators appointed by ment under the Public Seal in accor- the President on the advice of the Leader of the dance with this article. Opposition and nine Senators appointed by the President in his discretion from outstanding per- (2) Of the twenty-one Senators- sons from economic or social or community or- (a) twelve shall be appointed by the Gov- ganizations and other major fields of endeavour ernor acting in accordance with the (this latter category is commonly known as inde- advice of the Premier; pendent Senators). (b) two shall be appointed by the Gov- ernor acting in accordance with the

6 CHANGING OUR CONSTITUTION

The Office of Speaker in Trinidad and Tobago

The office of Speaker was first created for the appointed member appeared to be the key issue in Legislative Council of Trinidad and Tobago in deciding upon the introduction of the office, more 1950. The Speaker was to be nominated by the so than the fact that the Governor would cease to Governor in his own discretion. This did not re- preside in the Legislative Council. semble standard House of Commons practice at the time whereby the Speaker was an elected mem- However, it should be noted that the appointment ber of the House. of a retired judge as the first Speaker of the Legis- lative Council of Trinidad and Tobago, as opposed The creation of the office of Speaker in Trinidad to someone experienced in the affairs of the Leg- and Tobago in 1950 was part of a wider collection islative Council, reflected a desire to ensure the of constitutional reforms that were introduced in impartiality of the office in the eyes of the legisla- the colony by the British Government. In his des- tors and the society. patch to the Governor, the Secretary of State for the Colonies, Arthur Creech Jones, had this to say The question of an elected or a nominated Speaker about the intentions of the British Government : was the key issue to be determined for future re- forms.14 Unlike the British system of government “I agree that the stage has been reached when with its long history of political evolution and the the people of Trinidad and Tobago must be en- emergence of traditions over time, many of the abled to assume greater responsibility for the con- in the former colonies of Great Brit- trol of their own affairs. As I stated in my opening ain did not have adequately settled traditions that speech at the Conference on Closer Association can be described as being akin to the Westminster held at Montego Bay in 1947, it is one of the tasks model. of His Majesty’s Government to see that such re- sponsibility is passed increasingly from London Political institutions may be copied, but there is to the peoples of the territories themselves, and I no guarantee of assimilation into the local politi- am anxious, whenever possible, to increase the cal culture. The problem in respect of Trinidad and measure of responsibility for government borne Tobago was indicative of the need to try and pre- by Colonial Legislatures.” 13 serve impartiality, but what became the deeper is- sue was the continuation in office of someone who It was in the spirit of advancing the development was a good Speaker. of representative and responsible government in Trinidad and Tobago, as part of a wider policy of The basic position of the British Government on the British Government in the British West Indies, this issue was apparently formulated at a meeting that the office of Speaker of the Legislative Coun- between Colonial Office civil servants and the then cil was created in 1950. Governor of Trinidad and Tobago, Sir Edward Beetham, on 31st May, 1955. The meeting was Clearly the introduction of a Speaker in the Leg- held in Mr. Philip Rogers’ office at the Colonial islative Council was a major reform issue and Office in London and according to the Minutes of whether he should be an elected member or an the meeting, those in attendance were : Mr. P.

7 CHANGING OUR CONSTITUTION

Rogers, Sir E. Beetham, Mr. W. Wallace, Mr. J. The election of the Speaker was to take place on McPetrie, Mr. I. Watt and Mr. W. Ward. the basis of a secret ballot among the members which had the effect of reducing the imposition of On the issue of the Speaker, the meeting agreed any strict party discipline. The emphasis was be- as follows : ing placed upon the quality of the individual who would be elected to hold the office of Speaker by “(d) If the Constitution Reform Committee re- removing the strictures of party discipline so as to ported in favour of an elected Speaker we should ensure that the quality of the nominee could count agree to it. We should prefer that the Legislative above the loyalty to party. These new constitutional Council be empowered to elect their Speaker from provisions did not allow for the removal of the inside or outside membership of the Council; once Speaker from office by a vote of censure in the elected he would hold office for the lifetime of the Legislative Council. Clearly it was expected that Council, or until his resignation.” 15 the person who would be elected to that office would observe the traditions of the office such as The decision was taken between the Colonial Of- they were at Westminster at the time. fice civil servants and the then Governor of Trinidad and Tobago, Sir Edward Beetham, to al- The decision to allow someone who was not a low a Speaker to be chosen from among elected member of the Legislative Council to be eligible members of the Legislative Council or to be cho- to become its Speaker was a significant policy sen from outside the Council. They had clearly decision not in keeping with the traditions of worked out two possible responses to the Consti- Westminster. That such a provision was modified tution Reform Committee of the Legislative Coun- in 1956 in Trinidad and Tobago to allow for an cil of 1955 – one was to agree to an elected Speaker elected member to also be eligible for election to if so recommended and the other was to suggest the office was an attempt to make a compromise the election of a Speaker from either inside the in favour of the Westminster model in a colonial Legislative Council or from outside of it. This lat- setting. The final product did not resemble ter view clearly was recommended to Ministers Westminster at all and the seeds of a Whitehall and the 1950 Constitution of Trinidad and To- model were sown insofar as the creation of the bago16 was amended in 1956 at section 29 as fol- office of Speaker for a later independence consti- lows: tution were concerned. The term Whitehall model is used to describe the influence of Colonial Of- “29. There shall be a Legislative Council in and fice civil servants over the creation of new consti- for the Colony which shall consist of thirty-one tutions for the British colonies. The home of the Members, namely two ex officio Members, five British civil service is often referred to as Nominated Members and twenty-four Elected “Whitehall”. Members: By 1961 when next the office of Speaker was Provided that if any person elected to be Speaker modified in the context of wider constitutional of the Legislative Council shall not at the time of reform in Trinidad and Tobago, 18 the Whitehall his election be a Member of the Council, the per- version of the office had been firmly entrenched son so elected as Speaker shall be a Member of in the Constitution that now provided for full in- the Legislative Council in addition to the afore- ternal self-government with a bicameral Parlia- said thirty-one Members, and in such event the ment. Legislative Council shall consist of thirty-two Members.” 17

8 CHANGING OUR CONSTITUTION

The Speaker was to be elected either from among privilege of the party in power. In this regard, de the members of the House of Representatives who Smith 19 and Wilding and Laundy 20 have indicated were not Ministers or Parliamentary Secretaries the nature of those difficulties. It is apparent that or from among persons who were not members of the evolution of the political culture in many Com- either chamber of the Legislature and the use of a monwealth countries has contributed to this situ- secret ballot was removed. ation to such an extent that copying the Westminster practice is politically difficult. The Whitehall version of the office of Speaker has been firmly entrenched in Trinidad and Tobago. One aspect of this dimension of privilege of the Without a long tradition of Speakership in the leg- party in power when combined with the fact that islative process, the challenge of impartiality the Speaker may be elected from outside of the would have to rest upon the future holders of the House has had an unusual twist in Trinidad and office in order to establish lasting traditions. Tobago. In 1995 and in 2001, the House of Rep- resentatives elected a defeated candidate from the The question of the absolute impartiality of the general election, in each instance, to be its Speaker. Speaker in Commonwealth countries other than Trinidad and Tobago has also had its own unique the has been widely discussed. problems in 1995 and in 2002 when difficulties It has been conceded that the dissociation of the arose over the removal of the Speaker (1995) 21 Speaker from party politics is difficult to achieve, and the election of a Speaker (2002). because the position has come to be regarded as a

9 CHANGING OUR CONSTITUTION

The Judiciary

In establishing the Judiciary for Trinidad and To- of Appeal in Trinidad and Tobago and as Chair- bago in the independence constitution, the Con- man of the Judicial and Legal Service Commis- stitutional Adviser to the Cabinet, Mr. (later Sir) sion will be largely responsible for judicial and , expressed the following views in an other legal appointments.23 explanatory memorandum to the Colonial Office which has since been declassified : At the Queen’s Hall Conference in April 1962, the meeting of commentators on the draft Consti- “Provision is made in section 8 of the draft Order tution had a three-day discussion on the draft that in Council for the Supreme Court as constituted was prepared in February 1962 by the then Con- at present to continue under the name of the High stitutional Adviser to the Cabinet, Ellis Clarke. Court. The Judges of the Supreme Court become When the Queen’s Hall Conference got around to the Judges of the High Court and suffer no loss of discussing the provisions on the Judiciary on Fri- status, emoluments, allowances or else. day 27th April, 1962, a number of interesting com- ments were made by the Constitutional Adviser It will be noted that no provision is made for the to the Cabinet. holder of the post of Chief Justice of the Supreme Court. The reason for this is that there will be no According to Ellis Clarke: exactly comparable post on independence. The new post of Chief Justice in the draft Constitution “Let me deal, if I may, Mr. Chairman, now with is a joint post of Chief Justice and President of the question of tenure of office of Judges. This is a the Court of Appeal. In his capacity as Chief Jus- matter of great importance because obviously any tice the holder of that post is responsible for the man who goes into a field such as the Judiciary is administration of all the courts in the territory primarily concerned with his tenure of office; how from the lowest to the highest. As President of the long he is going to be there and under what cir- Court of Appeal he presides over the final court cumstances. First of all let me say that there is no in Trinidad and Tobago.” 22 such thing under this Constitution as disciplinary proceedings against a Judge. There are disciplin- In providing the insight into the creation of the ary proceedings against Civil Servants and against post of Chief Justice at independence, Ellis Clarke other people but there are no disciplinary proceed- outlined the intent of the draftsman as follows : ings against a Judge. If a Judge is so bad that he should not continue as a Judge then you must get “It will be observed that in fact the position of the rid of him but a Judge must not be under any threat Chief Justice and President of the Court of Ap- of being disciplined.” 24 peal is more analogous to that of the Lord Chan- cellor in England than to that of the Lord Chief What Ellis Clarke was doing was making out a Justice. The Lord Chancellor presides over the case for the independence Constitution to recog- , the highest court in England, the nize judges in a separate category from all other ultimate court of appeal. He is also responsible persons. for all judicial appointments, for the conferment of silk, etc. The Chief Justice and President of the He went further to say : Court of Appeal will preside over the final Court

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“The Judicial Committee of the Privy Council will “What then are the political consequences for the have the final say, and in fact the only say on the Prime Minister. Will any Prime Minister, be he dismissal of a Judge. That is not a matter in which sane or be he rash, attempt lightly to initiate such the Prime Minister will have any say. The dis- proceedings ? Suppose they say there is a case to missal of a Judge, all that the Prime Minister may go to the Privy Council, then the case goes to the do is to say that he thinks that a Judge, through Privy Council and is heard by the Privy Council, infirmity of mind or body, or misbehaviour, ought and the Privy Council can say, and can say in clear to be removed.” 25 and unmistakable terms that there was not a ves- tige of a case to come to them. They can criticise Here, Ellis Clarke was indicating to the Confer- very strongly indeed the conduct either of the ence that the role of the Prime Minister was con- Prime Minister in initiating proceedings or the fined to reporting his belief that there was a basis three judges if they think they are going to be weak for considering the removal of a Judge from of- and send the matter to the Privy Council that ought fice on the ground of infirmity of mind or body or never to reach there. So do not think that because misbehaviour. the expression “Prime Minister” occurs here and there in this chapter that the power is vested in He went further to say the following : the Prime Minister. The power of dismissal is vested solely in the Judicial Committee of the Privy “We have inserted a further safeguard; that is to Council and before it can ever get to the Judicial say instead of saying if the Prime Minister thinks Committee of the Privy Council, three Judges have so and so, he can refer the matter to the Privy to be of the opinion that it ought to go to them for Council, in much the same way, mind you that if consideration.” 27 anybody thinks that a Judge has done anything wrong he can bring proceedings against that These provisions have barely been modified in the Judge or against anybody, including the Prime 1976 republican Constitution, but the intent re- Minster. All that the Prime Minister can do is ini- mains the same. These comments about the foun- tiate something, say that it ought to be taken up, dations of our constitution are as valid today as but instead of saying that, it goes straight to the they were at independence. Privy Council because the Prime Minister says In his explanatory memorandum on the so. There is interposed a Committee of Judges, a draft independence constitution for Trinidad and Tribunal consisting of three Judges or ex-Judges, Tobago dated 16th April, 1962, Ellis Clarke had and these good gentlemen have to say whether in this to say about the provisions created for the ten- their view it should go to the Privy Council at ure of office of judges : all.”26 “Perhaps the most important single feature which A separation was being made here between the goes to ensure the independence of the Judiciary removal of a judge from office and the initiation and the attraction to the Judiciary of the right type of proceedings against a judge (or any other offi- of Judge is the security of tenure afforded to cial) for any alleged wrongdoing. Judges. For that reason no attempt has been made in the draft Constitution to be original. A formula, As far as Executive - Judiciary relations are con- carefully devised by the Colonial Office after many cerned in the context of the power of the Prime years as being the most likely to be effective and Minister to pursue the removal of a Chief Justice, acceptable and yet not to derogate from the prin- Ellis Clarke had this to say : ciples of independence, has been adopted. It is word for word the formula that the Colonial Of-

11 CHANGING OUR CONSTITUTION fice was able to persuade Nigeria, Sierra Leone not consider that it is appropriate that the ques- and to accept. There can be little doubt tion of the Judge’s dismissal should go to the Ju- that it is what they would wish Trinidad and To- dicial Committee of the Privy Council then that bago to accept.” 28 question cannot even be referred to the Privy Council. It is only if that tribunal advises that the Ellis Clarke reveals that the provisions regarding question of the removal of a Judge should be re- the tenure of office of judges in the Trinidad and ferred to the Judicial Committee that the matter Tobago independence Constitution were virtually is so referred.” 30 lifted word-for-word from the independence Con- stitutions of Nigeria (1960), Sierra Leone (1961) In his explanation, Ellis Clarke was arguing that and the then state of Tanganyika (1961) which later the case against a judge could end locally and never became Tanzania. be referred to the Privy Council if the tribunal was not satisfied that there was a case to go forward. He went further in his memorandum to say the However, as regards the issue of a case being re- following : ferred to the Privy Council by the tribunal, he had this to say : “When the formula is carefully studied and un- derstood there is little need to apologise for the “It is not difficult to imagine how careful such a lack of originality in the draft Constitution. The tribunal would be to ensure that the Judicial Com- effect is to ensure that the Judicial Committee of mittee does not find itself considering any but the Her Majesty’s Privy Council, and no one else, can clearly substantial case. Nor is it difficult to imag- cause a Judge to be removed from his office as ine the type of comment which the Privy Council such. It is difficult to imagine how any greater would make if the question of the removal of a security can be given to any Judge.” 29 Judge was referred to them when there was no ground for so referring it.” 31 The Colonial Office formula was imported at in- dependence from Nigeria, Sierra Leone and Ellis Clarke was highlighting the fact that the repu- Tanganyika and the Privy Council was going to tation of the members of any tribunal would be at be the final arbiter on the removal of a judge from stake if they were to refer a weak case to the Privy office. His further explanation of the process is Council for their consideration. From his view- also worth noting : point, the Privy Council would be scathing in their comments on the members of any such tribunal if “In order, however, that there should be a sifting a matter came before them on referral that ought process which would prevent any case without never to have been sent to them in the first place. merits from even reaching the Judicial Commit- tee for its consideration, there is provision for a These provisions were essentially retained in our kind of preliminary inquiry to be held locally. The republican constitution as the President has been persons who sit on this preliminary inquiry are substituted for the Governor-General. Their intent, Judges or ex-Judges. A Chairman and two other as devised by the Colonial Office in the 1960s has members constitute a tribunal. If this tribunal does never been changed.

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The President

In the post-independence era in the Common- the British Government to ensure that there was a wealth Caribbean three presidencies have been personal representative for the Monarch in all established in (formerly ), countries or territories of which there was a con- Trinidad and Tobago and Dominica. In Guyana stitutional requirement for the British Monarch to and Trinidad and Tobago, the transfer from an in- serve in a capacity that required his or her per- dependent monarchy to an independent republic sonal authority to be exercised. The office of Gov- required the removal of the personal authority of ernor-General was accepted into the constitutional Queen Elizabeth II as Queen of Guyana and Queen arrangements of those countries or territories of Trinidad and Tobago respectively and the es- where it was necessary for such arrangements to tablishment, in lieu of her authority, of presiden- exist. cies in which the executive authority of the State is vested. Owing to the fact that Queen Elizabeth II cannot reside in all of the countries of which she is Queen, For Dominica, the authority of Queen Elizabeth it is, therefore, necessary for her to have a per- II as Queen of the Associated State of Dominica sonal representative in each independent country was transferred to the presidency of the indepen- of which she is Queen in the person of the Gover- dent republic of the Commonwealth of Dominica nor-General. The authority of the Governor-Gen- upon the termination of associated statehood. eral is grounded in the Royal Prerogative of the British Monarchy and it is those powers that are Guyana had independent monarchical status be- exercised by the Governor-General on behalf of tween 1966 and 1970 with Queen Elizabeth II as Her Majesty on the advice of local Ministers. its Queen and became a republic with a ceremo- nial President in 1970. However, in 1980, after a The reality of that arrangement is that the execu- controversial referendum in 1979 and also legis- tive authority of the State is grounded in the Royal lative changes in 1980, its presidency was signifi- Prerogative of the British Monarchy. In those coun- cantly changed from a ceremonial one to an ex- tries where Queen Elizabeth II is their Queen, ecutive one. Trinidad and Tobago was an inde- Ministers and other parliamentarians pledge an pendent monarchy from 1962 to 1976 when it oath of allegiance to Queen Elizabeth II, her heirs became an independent republic in 1976 with a and successors upon taking office. quasi-ceremonial president. The transfer from monarchical to republican sta- The creation of monarchies at independence as tus in Trinidad and Tobago was accompanied by successor states to the colonial state changed the the transfer of the Royal Prerogative of relationship between Queen Elizabeth II as Queen to the new republic as the basis of their State power of the colonies of Trinidad and Tobago and of and the inclusion of transitional provisions in the British Guiana where she acted on the advice of Act of Parliament 32 and the new republican Con- British Ministers to the status where she was stitution. 33 In Guyana, provision was already made Queen of these independent monarchies acting on in the Independence (monarchical) Constitution the advice of her Guyanese or Trinidad and To- of 1966 34 for Guyana to become a republic upon bago Ministers. the approval of a resolution to that effect in the National Assembly by simple majority vote. 35 The office of Governor-General was created by There were no transitional provisions in the Con-

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stitution, but rather replacement provisions. In British Throne would become the new Head of 1980, Guyana enacted a new Constitution 36 to State of independent monarchies in the Common- become the Co-operative Republic of Guyana. wealth upon succession.

In the case of Dominica, the island became a State In Guyana, the President is now elected by direct in free association with the United Kingdom (an election using the first-past-the-post method of Associated State) in 1967 under the provisions of election; in Trinidad and Tobago the President is the West Indies Act 1967. 37 An Associated State elected by an Electoral College which consists of enjoyed full internal self-government, while citi- a joint sitting of both Houses of Parliament; while zenship, defence and external affairs were the re- in Dominica the President is elected by the House sponsibility of the United Kingdom. Either party of Assembly only if the Prime Minister and the (the United Kingdom or an Associated State) could Leader of the Opposition are unable to agree on a withdraw from the arrangement unilaterally un- single nominee for the office. der the provisions of the Act. 38 These methods, therefore, vary from the direct The Independence Constitution of Dominica of choice of the electorate, to the indirect choice of 1978 39 came into force on 3rd November,1978 the Legislature and to the concurrence of the Prime together with an Order 40 made after a resolution Minister and the Leader of the Opposition. In all was passed in the Dominica House of Assembly instances the President serves for a period of five on 12th July,1978 that led to the termination of years. Dominica’s associated statehood following discus- sions with the British Government. Transitional In Trinidad and Tobago, the President is chosen provisions relating to the transfer from associated by indirect election through the Legislature. An statehood to a sovereign democratic republic were Electoral College 42 has been established for this included in the Constitution. purpose which is a joint sitting of both the House of Representatives (an elected House) and the The replacement of the monarchy by a republic in Senate (a nominated House). The House of Rep- Trinidad and Tobago and in Guyana; and the cre- resentatives determines the nomination of candi- ation of a republic at independence in Dominica dates for the Presidency as the nomination papers created the need for a method of election to choose of candidates must be signed by at least twelve an indigenous , namely the Presi- Members of that House.43 dent of the Republic. The nominated members get to vote on the elec- Previously, the appointment of the Governor-Gen- tion of the President if there is a contested elec- eral was normally based on Letters Patent from tion in the Electoral College. The Speaker of the Her Majesty given on the advice of the Prime House of Representatives presides at sittings of Minister of the independent monarchy. The Gov- the Electoral College and voting is by secret bal- ernor-General in both Trinidad and Tobago and in lot among the elected M.P.s and the nominated Guyana held office “during Her Majesty’s plea- Senators. Once elected, the President serves for a sure.”41 term of five years which is not co-terminous with the life of the Parliament.44 There may be changes Owing to the fact that Queen Elizabeth II was in the composition of the Parliament as a result of Queen of Trinidad and Tobago and also Queen of a dissolution and general elections, but these will Guyana, it was evident that there was no need to not affect the tenure of office of the President. devise any formula for succession. The heir to the

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However, in creating a body to elect the President, The obvious modification of Article 2, Section 1(2) the framers of the Constitution opted to borrow of the United States Constitution in relation to the and adapt the terminology used in the United States framing of the republican constitution of Trinidad for the body that elects the President. This was and Tobago saw the merging of the functions of originally taken from the Report of the Constitu- the Electors and the members of the Senate and tion that was chaired by the Right the House of Representatives in the United States Honourable Sir Hugh Wooding, a former Chief for the election of the President. Justice of Trinidad and Tobago, even though the Constitution Commission based their idea on the In the United States Constitution there is a clear Indian model. 45 separation between these persons as follows:

There was disagreement between the then Prime “Each State shall appoint, in such manner as the Minister, Dr. Eric Williams, and the Wooding Legislature thereof may direct, a Number of Elec- Commission on this matter because the Commis- tors, equal to the whole Number of Senators and sion was attempting to create a body of parliamen- Representatives to which the State may be entitled tarians and local government representatives for in the Congress : but no Senator or Representa- their Electoral College, while the Prime Minister tive, or Person holding an Office of Trust or Profit chose to exclude the local government represen- under the United States, shall be appointed an tatives from the proposals of his Government. Elector.” 46

The Commission sought to justify its proposal by By making this adjustment, the members of the equating the inclusion of local government repre- House of Representatives and the Senate of sentatives with representatives in the State legis- Trinidad and Tobago were converted into electors latures in . Eric Williams was vehemently of the President. opposed to this idea as he could see no compari- Additional modifications were made to the son between the two given the disparity in status practice in the United States Constitution whereby between a legislature of a State in India and the the responsibility of the in inferior status of county councils in Trinidad and the United States for counting the votes of the Elec- Tobago that had no legislative authority. However, tors was transferred to the Speaker of the House the political reality was that with just the House of Representatives. According to Article 2, Sec- of Representatives and the Senate, any government tion 1(2) of the United States Constitution : of the day ought to be able to control the election of a President as opposed to adding the unpredict- “The President of the Senate shall, in the Pres- able nature of the political composition of local ence of the Senate and House of Representatives, government bodies to the political management open all the Certificates, and the Votes shall then task involved in electing a President. be counted.” 47

Neither the Commission nor the Prime Minister This conversion of Article 2, Section 1(2) can be ever stated that their example was drawn from the seen in sections 28 and 29 of the republican Con- United States in respect of function, but the Gov- stitution of Trinidad and Tobago as follows : ernment certainly adapted the title and the con- cept of the Electoral College from the United “28. (1) There shall be an Electoral College States for carrying out the function of electing the for the purposes of this Chapter which President. shall be a unicameral body consist-

15 CHANGING OUR CONSTITUTION

ing of all the members of the Senate the American Constitution and allowed the fram- and all the members of the House of ers of the republican constitution of Trinidad and Representatives assembled together; Tobago, in 1976, to create an institution that could be adapted to suit local circumstances. After all, it (2) The Electoral College shall be con- was necessary to ensure that the replacement of vened by the Speaker; the monarchy and the Governor-General was done in such a way as to permit the election of a Presi- (3) The Speaker shall preside as Chair- dent who would not challenge the Prime Minister man over the proceedings of the Elec- and the Cabinet in the parliamentary system, but toral College and shall have an origi- yet be the choice of the majority of the two Houses nal vote. of Parliament. The legitimacy for the office of President would come from the dignified use of 29. The President shall be elected by the the power of the majority of both Houses all cer- Electoral College voting in secret ballot.” 48 emonially veiled for the occasion in the Electoral College. Up to the time of writing in Trinidad and It is clear that the institution of the Electoral Col- Tobago, the Electoral College has been convened lege in Trinidad and Tobago for the election of the in 1977, 1982, 1987, 1992, 1997, 2003 and 2008. President represented the obvious modification of

16 CHANGING OUR CONSTITUTION

The Westminster-Whitehall Model and Trinidad and Tobago

Any analysis of constitutional reform in Trinidad must be members of the legislature; and in which and Tobago must include an appreciation of the Ministers are collectively and individually respon- foundation of the constitutional model adopted and sible to a freely elected and representative legis- the main features of the system of government. lature.” 51

Indeed, it is in this context that the constitutional This definition, as de Smith rightly confesses in thinking of Dr. Eric Williams, first Chief Minis- the book, is a narrow one, because it emphasizes ter, first Premier and first Prime Minister of the executive and legislative branches of govern- Trinidad and Tobago will help us to appreciate the ment to the exclusion of the role, powers, duties character of the foundations of our constitutional and functions of the judiciary, which at the time system. In an address to a public meeting about of writing in 1964 were far different from what 14 months before he became Chief Minister, in was enacted in the Constitutional Reform Act Port-of-Spain, Trinidad on 19th July, 1955, Will- 2005 52 in the United Kingdom. That Act provided iams remarked, “The Colonial Office does not for a greater separation of powers by significantly need to examine its second hand colonial consti- altering the office of Lord Chancellor which led tutions. It has a constitution at hand which it can to the creation of a Ministry of Justice in 2007 apply immediately to Trinidad and Tobago. That and the establishment of a Supreme Court for the is the British Constitution.” 49 At the same meet- United Kingdom that assumed office on 1st Octo- ing he also said: “Ladies and Gentlemen, I sug- ber, 2009. gest to you that the time has come when the Brit- ish Constitution, suitably modified, can be applied It is clear that Dr. Eric Williams was intent on es- to Trinidad and Tobago. After all, if the British tablishing a Westminster- democracy in Constitution is good enough for Great Britain, it Trinidad and Tobago and he certainly pursued this should be good enough for Trinidad and To- after he became the Chief Minister in 1956. bago.”50 At the same time, a closer investigation of what It is clear that the desire of Eric Williams was for was established would lead us to find that a pure the creation of a suitably modified Westminster was not established, but rather model for Trinidad and Tobago. The Westminster a Westminster-Whitehall model that had all of the model has been described as: hallmarks of Westminster in of offices, etc., but not the exact structures and functions. The “…a constitutional system in which the head of following quotation summarises the essence of the state is not the effective head of government; in creation of the constitutional systems of govern- which the effective head of government is a Prime ment in the Commonwealth Caribbean: Minister presiding over a Cabinet composed of Ministers over whose appointment and removal “…[I]t is widely supposed that British policy, if it he has at least a substantial measure of control; has ever had any long term aims at all, has in which the effective executive branch of govern- throughout the centuries of imperial rule - ‘the ment is parliamentary in as much as Ministers Commonwealth experience’ - been at pains to es-

17 CHANGING OUR CONSTITUTION tablish, even to impose, in the dependencies of the during which many new states gained their inde- Crown a Westminster model, irrespective of local pendence from Great Britain and the composition wish or circumstance: that the Mother of Parlia- of the British Commonwealth assumed a greater ments was concerned to spawn a brood of little Third World representation. It was too early to Westminsters and to export them to the colonies. assess the impact and the significance of the con- Though this is the common currency of contem- stitutions that had been established in many of porary British politicians, and of British school- these newly-independent states, especially in the masters, it seems on investigation to be substan- Commonwealth Caribbean whose era of indepen- tially quite untrue.” 53 dence started in 1962 with and Trinidad and Tobago. While Madden devotes the thrust of his article to disproving the thesis that the British Government By the late 1970s, doubts about the Westminster ever had any intention of establishing the model and its export were expressed. Madden Westminster model overseas, he fails to address rejected, in a general sense, the idea that the the reality of what was erected for the ex-colonies Westminster model of government could be ex- at their independence by Britain. On closer ex- ported and established overseas. In fact, Madden amination, it can be seen that a completely unique argued that it was never the intention of British system of government was introduced. By identi- colonial administrators to export the Westminster fying and describing that unique system of gov- Model in its purest form. According to him, “the ernment and the legislative institutions that were only true Westminster model remained inevitably created and subsequently retained, we can con- at home in Westminster: it was not intended for firm the creation of the Westminster-Whitehall export, but was strictly ‘to be consumed only on model in the Commonwealth Caribbean. the premises’”. 55

Sacred Westminster doctrines, such as the Su- This argument, therefore, begs the question that if premacy of Parliament, find themselves being the Westminster model was not exported, then challenged in the constitutions of the Common- what was ? Madden does not answer this ques- wealth Caribbean because of the presence of Bills tion but he makes the following assertion: of Rights in those constitutions. Furthermore, the spirit of the Westminster model cannot comfort- “Canadians, Australians and Indians made con- ably settle itself in the Commonwealth Caribbean stitutions which they believed would last. The new because of substantial parliamentary and proce- generation of constitution makers in the 1950s and dural differences in its architecture. These differ- 1960s were not concerned with creating a perma- ences have fundamentally altered the character and nent instrument for government so much as a de- content of the so-called Westminster model in the vice for securing independence which could be Commonwealth Caribbean. And so, to continu- altered subsequently at will. Something akin to the ally refer to the Commonwealth Caribbean sys- British model might serve its temporary purpose tems of government as a manifestation of the in allaying fears in Britain about transferring Westminster model can be regarded as a misno- power. But it remains to be proved that it is ap- mer. propriate for the tasks of self-government any- where else than in Britain.” 56 The idea of the Westminster model as defined by de Smith, and the export of that model as discussed This is the challenge with reference to the Com- by Burns in Parliament as an Export 54 would have monwealth Caribbean where constitutions “akin suited the 1960s and early 1970s. This was an era to the British model” have been established. Forty-

18 CHANGING OUR CONSTITUTION seven years after the first territories in the Colonial Office and civil servants in Whitehall English-speaking Caribbean gained their indepen- (hence the name) in the drafting of independence dence from Great Britain, only Guyana has actu- constitutions. However, this exercise was not com- ally completed any fundamental constitutional pletely one-sided from the point of view of the reform to the extent that their constitution can no recipients. longer be described as being “akin to the British model”. All of the other countries have made The acceptance of the Whitehall model in the changes that can only be described as cosmetic Commonwealth Caribbean revealed a high degree and, therefore, the identity of those constitutions of reverence for British-inspired constitutional have been preserved, thereby allowing them to still technique. This can be accounted for in terms of be classified as belonging to the Westminster- the fact that the political elites of the Common- Whitehall model. Furthermore, the procedures of wealth Caribbean were brought up under an entrenchment of the provisions of these constitu- English-influenced educational system, while tions have made them secure from being “altered those who went abroad to study invariably went subsequently at will” as Madden declares. to England. Many of them became -at-law of the Inns of Court, or solici- The issue that must now be addressed is whether tors. Furthermore, the experiences of British co- these constitutions have reached an evolutionary lonialism would not have exposed these elites, or point in their growth and development where they the wider society, to any other type of constitu- are in need of reform. Every single country in the tional formulae, apart from the British Constitu- Commonwealth Caribbean has entered the dia- tion. logue phase of this exercise and, at the time of writing, St. Vincent and the Grenadines passed a The cultural legacy of British colonialism was such Constitution Bill 2009 in their Parliament with the that societies in the former British West Indies required two-thirds majority on 3rd September, trusted the Westminster model as a source of guid- 2009 that is constitutionally required to be sub- ance and inspiration, despite the desire to seek jected to a referendum. That referendum was fixed independence and to sever ties with the so-called for 25th November, 2009. colonial master. Nearly fifty years after the first countries that got their independence from Great The Whitehall model, named by Leslie Britain, the changes in attitude towards the Wolf-Phillips in the Journal Parliamentary Affairs Westminster model can be seen among some of in 1984 57 bears no relation to the Whitehall model the political elites, many of whom were educated advocated by Anthony Birch in The British Sys- at the University of the West Indies and who hold tem of Government 58 which stresses the impor- a different view of constitution-making than was tance of the Crown in the British constitution, and the case thirty or forty years ago. places less emphasis on the role and importance of Parliament. Birch’s Whitehall model relates to The natural reverence for the British Constitution the United Kingdom, while Wolf-Phillips’ relates may not be there in the Caribbean societies of to- to the Commonwealth Caribbean. day to the same degree as it was for Eric Williams and his advisers in 1955 and beyond. As far as he Nevertheless, the argument put forward by Birch was concerned, the arguments cited above only is interesting in that it reveals a disagreement about serve to reinforce the view that we have the Brit- the concept of the Westminster model in the United ish Constitution “suitably modified” or something Kingdom itself. In these circumstances, the “akin to the British model”. No matter how one Whitehall model overseas reflects the input of the may wish to view it, there seems to be ample evi-

19 CHANGING OUR CONSTITUTION dence to show that the Westminster model was creating the Westminster-Whitehall not exported or transplanted to the Commonwealth model; Caribbean, but rather that we created something unique that we may call the Westminster-Whitehall (v) the entrenchment of constitutional model. provisions in our written constitutions for which there is no equivalent at The main features of that model are : Westminster as they do not have a written constitution. (i) the inclusion of a Bill of Rights in the Constitution that guarantees consti- The Westminster model has changed significantly tutional protection of the rights and since Trinidad and Tobago and other Common- freedoms of the individual which does wealth Caribbean countries got their independence not exist in the Westminster model, between 1962 and 1983. The Bill of Rights of 1998 notwithstanding the Bill of Rights of and the Constitution Reform Act of 2005 have al- 1998 in the United Kingdom; lowed fundamental alteration to the system of (ii) a unique bicameral system in eight of government in the United Kingdom. For the people the twelve independent countries of Commonwealth Caribbean countries seeking which does not resemble the bicam- to advance themselves by changing their consti- eral system at Westminster; tutions, the main challenge will be to look beyond the Westminster model while providing comfort (iii) a more rigid enforcement of the Sepa- to their societies that the changes that will be made ration of Powers than that which had are safe ones if they fall outside of the Westminster existed at Westminster until 1st Octo- zone that has provided comfort, especially to po- ber, 2009 when the Supreme Court of litical elites, for almost five decades. the United Kingdom came into being following the prior creation of a Min- istry of Justice on 9th May, 2007; Hamid Ghany University of the West Indies, (iv) the importation of unwritten St. Augustine Westminster constitutional conven- tions into our constitutions thereby 6th October, 2009

20 CHANGING OUR CONSTITUTION

NOTES

1. Sir Kenneth Roberts-Wray, Commonwealth and Co- 16. Trinidad and Tobago (Constitution) Order-in-Council lonial Law (London : Stevens & Sons, 1966), p. 860. 1950 (S.I. 1950 / No. 510).

2. Roberts-Wray, Commonwealth and Colonial Law, p. 17. Trinidad and Tobago (Constitution) (Amendment) Or- 860. der in Council 1956 (S.I. 1956 / No. 835), s.23.

3. 50 & 51 Vict., c.44. 18. Trinidad and Tobago (Constitution) Order in Council 1961 (S.I. 1961 / No. 1192), s. 24. 4. S.R.O. & S.I. Rev. XXIII, p. 297. 19. S.A. De Smith, “Legislatures under Written Constitu- 5. S.R.O. & S.I. Rev. XXIII, p. 298. tions” in Sir Alan Burns (ed.) Parliament as an Export (London : George Allen & Unwin, 1966), p. 216. 6. S.R.O. & S.I. Rev. XXIII, p. 299. 20. N. Wilding and P. Laundy, An Encyclopedia of Parlia- 7. S.R.& O. 1924, p. 1891. ment, (London : Cassell, 1972), p. 710. 8. Trinidad and Tobago (Constitution) Order-in-Council 21. Ghany, “Parliamentary Crisis and the Removal of the 1950 (S.I. 1950 / No. 510). Speaker : The Case of Trinidad and Tobago”, pp. 112 9. For a useful historical account of the Legislature of - 138. Trinidad and Tobago between 1887 and 1941, see 22. United Kingdom National Archives, CO 1031 / 3226, Martin Wight, British Colonial Constitutions (Oxford: Explanatory Memorandum by the Constitutional Ad- Clarendon Press, 1952), pp. 301 - 334. viser to the Cabinet on the Draft Independence Con- 10. See Trinidad and Tobago (Constitution) Order in Coun- stitution for Trinidad and Tobago, 16th April, 1962, p. cil 1961 (S.I. 1961 / No. 1192). 9.

11. Trinidad and Tobago (Constitution) Order in Council 23. United Kingdom National Archives, CO 1031 / 3226, 1961 (S.I. 1961 / No. 1192), s.15. Explanatory Memorandum by the Constitutional Ad- viser to the Cabinet on the Draft Independence Con- 12. For a fuller discussion of the introduction of bicamer- stitution for Trinidad and Tobago, 16th April, 1962, alism in Trinidad and Tobago see also Hamid Ghany, pp. 9 - 10. “Eric Williams : The Constitutional Scholar and the Introduction of in Trinidad and Tobago”, 24. Verbatim Report of the Meeting of Commentators on The Journal of Legislative Studies, 3 (4) (1997), pp. the Draft Constitution at Queen’s Hall, 25th - 27th 92 - 114. April, 1962, p. 194.

13. Arthur Creech Jones to Sir John Shaw, United King- 25. Verbatim Report of the Meeting of Commentators on dom National Archives CO 1031 / 1393, Trinidad No. the Draft Constitution at Queen’s Hall, 25th - 27th 10, 7th January, 1949, para. 9. April, 1962, p. 196 .

14. For a fuller discussion of the creation of the office of 26. Verbatim Report of the Meeting of Commentators on Speaker in Trinidad and Tobago see also Hamid the Draft Constitution at Queen’s Hall, 25th - 27th Ghany, “Parliamentary Crisis and the Removal of the April, 1962, pp. 196. Speaker : The Case of Trinidad and Tobago” , The 27. Verbatim Report of the Meeting of Commentators on Journal of Legislative Studies, 3 (2) (1997), pp. 112 - the Draft Constitution at Queen’s Hall, 25th - 27th 138. April, 1962, pp. 196 - 197. 15. Minutes of Meeting with Sir E. Beetham in Mr. Rogers’ 28. United Kingdom National Archives, CO 1031 / 3226, Room on 31st May, 1955, United Kingdom National Explanatory Memorandum by the Constitutional Ad- Archives CO 1031 / 1393, 31st May, 1955, signed by viser to the Cabinet on the Draft Independence Con- Ian Watt.

21 CHANGING OUR CONSTITUTION

stitution for Trinidad and Tobago, 16th April, 1962, p. 41. The Trinidad and Tobago (Constitution) Order in 10. Council 1962, s.19 and the Guyana Independence Or- der 1966, s.30. 29. United Kingdom National Archives, CO 1031 / 3226, Explanatory Memorandum by the Constitutional Ad- 42. Laws of Trinidad and Tobago, Ch. 1:01, Schedule, s.28. viser to the Cabinet on the Draft Independence Con- stitution for Trinidad and Tobago, 16th April, 1962, p. 43. Laws of Trinidad and Tobago, Ch. 1:01, Schedule, s.30. 10. 44. Laws of Trinidad and Tobago, Ch. 1:01, Schedule, s.33. 30. United Kingdom National Archives, CO 1031 / 3226, 45. Report of the Constitution Commission, Trinidad and Explanatory Memorandum by the Constitutional Ad- Tobago, (Trinidad and Tobago Printing and Packag- viser to the Cabinet on the Draft Independence Con- ing Ltd., 22nd January, 1974), paras. 149 and 150. stitution for Trinidad and Tobago, 16th April, 1962, pp. 10 - 11. 46. Angela Roddey Holder and John Thomas Roddey Holder, The Meaning of the Constitution, Third Edi- 31. United Kingdom National Archives, CO 1031 / 3226, tion, (Hauppage, N.Y., U.S.A., 1997), p. 36. Explanatory Memorandum by the Constitutional Ad- viser to the Cabinet on the Draft Independence Con- 47. Roddey Holder and Roddey Holder, The Meaning of stitution for Trinidad and Tobago, 16th April, 1962, the Constitution, p. 36. pp. 10 - 11. 48. Laws of Trinidad and Tobago, Ch. 1:01, Schedule, ss. 32. Laws of Trinidad and Tobago, Ch. 1:01. 28 and 29.

33. Laws of Trinidad and Tobago, Ch. 1:01, The Schedule. 49. Eric Williams, Constitution Reform in Trinidad and Tobago, Public Affairs Pamphlet No. 2, Teachers’ Edu- 34. The Guyana Independence Order 1966, S.I. 1966 / cational and Cultural Association, Trinidad, 1955, p.30. No.575. 50. Williams, Constitution Reform in Trinidad and Tobago, 35. By virtue of Resolution No. XXVI passed by the Na- p.30. tional Assembly on 29th August,1969, Guyana be- came a Republic on 23rd February,1970 and the alter- 51. S. A. de Smith, The New Commonwealth and its Con- ations to the Constitution originally set out in the Sec- stitutions, (London, Stevens and Sons, 1964), pp. 77 - ond Schedule to the Constitution (S.I. 1966 / No.575) 78. took effect in accordance with section 73(5) of that Constitution. 52. United Kingdom Statutes, 2005, c.4.

36. By virtue of Act No. 2 of 1980 Guyana enacted a new 53. A. F. Madden, “ ‘Not for Export’ : the Westminster Constitution of the Co-operative Republic of Guyana, Model of Government and British Colonial Practice”, repealed the Guyana Independence Act 1966, the Journal of Imperial and Commonwealth History, Vol. Guyana Independence Order 1966, and the Constitu- 8 (1) 1979. tion existing at that time. The new Constitution was contained in Act No. 2 of 1980 as a Schedule. 54. Burns (Ed.), Parliament as an Export.

37. 15 & 16 Eliz. 2, c. 4. Under the provisions of this Act, 55. Madden, Journal of Imperial and Commonwealth His- the United Kingdom created associated statehood sta- tory. tus for , Dominica, , St. Kitts-Nevis, St. Lucia, and St. Vincent and the Grena- 56. Madden, Journal of Imperial and Commonwealth His- dines. tory.

38. 15 & 16 Eliz. 2, c. 4, s.10. 57. Leslie Wolf-Phillips, “A Long Look at the British Con- stitution”, Parliamentary Affairs, Vol. 37 (4) 1984. 39. The Commonwealth of Dominica Constitution Order 1978, S.I. 1978/No.1027 58. Anthony Birch, The British System of Government (London, George Allen and Unwin, 4th ed., 1980), pp. 40. The Dominica Termination of Association Order 1978, 25 - 26). S.I. 1978 / No.1031

22 CHANGING OUR CONSTITUTION

Part One

Constitutional Controversies and Constitutional Reform

Many of our institutions and constitutional pro- The creation of this hybrid for the office of Presi- cesses have not performed in the manner that was dent of the Republic to replace the Governor Gen- intended. The major one has been the presidency. eral introduced the principle of indirect election It has been severely damaged by periodic politi- by the Legislature as an alternative method to the cal wrangling between the office of the Prime advice of the Prime Minister being given to the Minister and the office of the President which was Queen of Trinidad and Tobago (who also happened never intended as well as the frequent attacks of to be Queen of the United Kingdom and several bias that have been made against the office by other Commonwealth countries) for the appoint- some parliamentarians and politicians who have ment of the Governor General. The replacement served in opposition to the government. of the monarchy and the Governor-General by the election, through the Electoral College, of a Presi- As stated earlier, the President is chosen by indi- dent who would not challenge the Prime Minister rect election through Parliament and the institu- and the Cabinet in the parliamentary system, but tion called the Electoral College (borrowing a yet be the choice of the majority party, was an in- name for the institution that elects the President novation that still left the presidency open to the of the United States) has been established for this challenge of being biased in favour of the party purpose. It is a joint sitting of both the House of that elected him into office. Representatives and the Senate. The members of the House of Representatives determine the nomi- Presiding Officers nation of candidates for the Presidency as the to act as President nomination papers of candidates must be signed by at least twelve Members of that House. The Perhaps, the area in which the modification of the Speaker of the House of Representatives presides United States Constitution in the framing of the over the Electoral College and voting is by secret 1976 republican Constitution of Trinidad and To- ballot (only if there is more than one candidate) bago can best be seen is in the use of the President among the forty-one elected M.P.s and the thirty- of the Senate and the Speaker of the House of one nominated Senators. Once elected, the Presi- Representatives in a chain of command to act as dent serves for a term of five years which is not President of the Republic if the President is un- co-terminous with the life of the Parliament. There able to perform the functions of his / her office. may be changes in the composition of the Parlia- ment as a result of bye elections or a dissolution In the United States, these offices are decidedly and general elections, but these will not affect the partisan; however, in Trinidad and Tobago they tenure of office of the President. are intended to be just the opposite given the Westminster ethos of the Constitution. Neverthe- less, the clever use of the titles allowed the fram-

23 CHANGING OUR CONSTITUTION ers of the republican constitution to construct an of the Leader of the Opposition, and nine Sena- edifice of impartiality that would support the presi- tors are appointed by the President in his / her dis- dency in maintaining its intended character of be- cretion from among outstanding persons from eco- ing an impartial office given its historical evolu- nomic or social or community organizations and tion out of the office of the Governor-General. other major fields of endeavour. 1

The royal blessings that would normally cover the Since the introduction of these arrangements, the acting Governor-General meant that the search for President of the Senate has always been elected an almost equal veil of impartiality would lead from among those Senators recommended by the the framers to the presiding officers of Parliament. Prime Minister because of the existence of a fixed Government majority (16 – 6 – 9). As a conse- The use of the President of the Senate to act as quence, there has always been a harmonious rela- President of the Republic of Trinidad and Tobago tionship between the Prime Minister and the act- undoubtedly recalls the Twenty Fifth Amendment ing President whenever the President has been to the United States Constitution that addresses unable to perform the functions of his office in the question of the inability of the President to Trinidad and Tobago since 1976. discharge his / her functions. However, a fundamental problem would arise if There are however some difficulties associated the acting President (in the person of the Presi- with this procedure of using the President of the dent of the Senate) and the Prime Minister were Senate in the Parliament of Trinidad and Tobago to have a disagreement which would lead to the to act as President of the Republic. The main ar- Prime Minister advising the acting President to eas of concern revolve around (i) the method of revoke his / her own appointment as a Senator. It appointment of the President of the Senate; (ii) is perhaps constitutionally impossible to revoke the inability to impeach a President while Parlia- one’s own appointment other than by resignation ment is dissolved; (iii) the complications associ- under your own hand. ated with the need for an acting President while Parliament is dissolved; (iv) the determination of In such a situation, the President of the Senate who the inability of the President to perform the func- would be acting as President of the Republic could tions of his / her office; (v) the potential for de- hardly write a letter of resignation to himself / feated candidates to be elected as Presiding Of- herself. This is a weakness in the creation of the ficers and thereby be eligible to serve as an acting hybrid even though the situation has not arisen up President; (vi) the failure of the House of Repre- to the time of writing. In another sense, it may be sentatives to elect a Speaker after a general elec- seen as a strength as it preserves the independence tion. of the office during the period of an acting presi- dency by ensuring that the acting President can- Method of Appointment of the not be removed for any other reason than by in- President of the Senate ability to perform the functions of the office, but there is no guarantee that constitutional compli- The President of the Senate is elected from among cations could arise. the Senators at the first sitting of the Senate after a dissolution of Parliament. In Trinidad and To- Among the qualifications for the office of Presi- bago, sixteen Senators are appointed by the Presi- dent is a requirement that the person so elected dent on the advice of the Prime Minister, six Sena- must be 35 years old. At the same time, the quali- tors are appointed by the President on the advice fications for nomination as a Senator include that

24 CHANGING OUR CONSTITUTION the person should be 25 years old. It is possible their own choosing seeing that the Government that a President of the Senate who is 25 years old did not have a mathematical majority in the Sen- could act as President of the Republic notwith- ate at the opening of Parliament. standing the requirement that the holder of the In the intervening period between the general elec- office should be 35 years old or there may be a tion and the opening of Parliament the Prime Min- constitutional conundrum which may deem the ister could take no action to deal with this viola- President of the Senate incapable of acting by vir- tion as Parliament was dissolved. By placing the tue of his / her age. Government side in a minority position in the Sen- ate at the opening of Parliament, the President was The Inability to Impeach the in a position to cause someone other than a Gov- President during a Dissolution ernment nominee to be elected as President of the Senate. During a dissolution of Parliament, it is impos- sible to impeach the President of the Republic as Furthermore, even if the Government wished to any motion seeking to initiate such proceedings commence impeachment proceedings against the must be commenced in the House of Representa- President, the fact that the Government did not tives. 2 have seven Senators available to them meant that any attempted impeachment would be likely to fail. The recall of the House of Representatives and the Senate during a dissolution and before a gen- The impeachment process depends upon a two- eral election can only be accomplished by the thirds majority of the Electoral College for the President acting on the advice of the Prime Min- successful removal of a President. Being seven ister 3 and it is unlikely that a President would agree Senators short at the opening of Parliament meant to recall a Parliament for the purpose of having that the President could have violated the Consti- himself / herself impeached. tution without fear of being impeached. Further- more, all Senators do not enjoy security of tenure In January 2001, a situation arose in which the and they can be removed by the President on the President violated the provisions of the Constitu- advice of the person who advised their appoint- tion by refusing the advice of the Prime Minister ment. on the appointment of seven of the sixteen Sena- tors recommended by him (the Prime Minister) Complications associated on the ground that they were defeated candidates. with an Acting President There is no constitutional or parliamentary prohi- during a Dissolution bition on defeated candidates being appointed as Senators. When Parliament is dissolved, the President of the Senate and the Speaker of the House of Repre- The effect of this action also had the potential to sentatives hold office until a new Parliament is compromise the election of a President of the Sen- opened after a general election. 4 At the moment, ate when Parliament was eventually opened on 12th when, at the opening of Parliament, the Clerk of January, 2001 after the general election on 11th the Senate and the Clerk of the House of Repre- December, 2000. The nominee of the Government sentatives recite the proclamation by the President side (Mr. Ganace Ramdial) was eventually elected summoning a new Parliament, the offices of these unopposed even though the Opposition could have presiding officers become vacant. mounted a challenge by nominating someone of

25 CHANGING OUR CONSTITUTION

During the period of the dissolution of Parliament President of the Senate that day as a Speaker was between 28th August, 2002 and the opening of being elected for the first time since the first failed Parliament on 17th October, 2002, the President attempt on 5th April 2002. of the Republic, Mr. Arthur N.R. Robinson, was ill at various times and Dr. Linda Baboolal, the These were anxious moments of constitutional President of the Senate, had to act as President. uncertainty at the opening of Parliament in 2002.

However, on the day of the ceremonial opening Determination of Presidential of Parliament, there was an interesting situation Inability to Perform Duties of great constitutional importance when, after the completion of the agenda in the Senate by Dr. The determination of the inability of the President Baboolal as President of the Senate, it was neces- to perform his duties is a key component in hav- sary for her to leave the Parliament Building and ing the President of the Senate act as President of go to President’s House where she was sworn into the Republic. Such a situation arose in 1998 when office as Acting President of the Republic. She President Arthur N.R. Robinson became ill for a then rode in state to the Parliament Building where prolonged period and had to undergo a series of she addressed both Houses of Parliament as the medical tests. The President of the Senate, Mr. Acting President of the Republic. Ganace Ramdial, acted as President during this period. Additionally, there were public occasions The constitutional niceties of what had occurred that President Robinson attended while being un- may best be summed up this way. Dr. Baboolal able to perform his duties, but he was well enough had been acting President up to the day on which to attend a social engagement. This created awk- the Parliament was to be opened owing to the ill- ward moments of having both the substantive and ness of President Robinson. Just prior to the sit- the acting Presidents in attendance at the same ting of Parliament, President Robinson resumed event. Such a situation arose on Tuesday 24th his functions as President as the effect of the re- March, 1998 when His Royal Highness Prince cital by the Clerk of the Senate of the Proclama- Phillip, the Duke of Edinburgh, was received at tion summoning Parliament to meet effected the President’s House by President Arthur N.R. termination of Dr. Baboolal’s term of office as Robinson while he was incapable of performing President of the Senate. his functions as President, but was well enough to receive Prince Phillip socially. Simultaneously, the This effectively meant that she could not serve as President of the Senate, Mr. Gance Ramdial, was Acting President from that moment. Between that performing the duties of Acting President and was time and her eventual arrival at President’s House also at President’s House to present gold and sil- to be sworn in as Acting President, it was neces- ver medals to 122 persons in the President’s Award sary for President Robinson to be available for Scheme (formerly known as the Duke of State duty. Edinburgh’s Award Scheme before Trinidad and Tobago became a republic). His availability for duty was made all the more necessary as there had been no Speaker of the Another difficulty related to the determination by House of Representatives elected in the previous the President as to whether or not he was inca- Parliament owing to a parliamentary deadlock as pable of carrying out his functions. Such a situa- a result of an 18 – 18 tie after the general election. tion arose in 1986 when the then President, Sir In the circumstances, the chain of command for Ellis Clarke, travelled out of the country for three the acting presidency could not extend beyond the days and made no arrangements for the President

26 CHANGING OUR CONSTITUTION of the Senate, Dr. Wahid Ali, to act for him. from among elected M.P.s or from outside the House. This is the Whitehall version of the office President Clarke’s explanation upon his return was of Speaker discussed earlier. 6 that he determined that he would have been able to carry out his functions, notwithstanding his The election of two defeated candidates in suc- absence from the country, as he was only over- cessive general elections to serve as Speaker of seas for three days and he knew that there was not the House of Representatives created a situation anything that he was required, as President, to do whereby it could have been possible for either one over those three days. In a newspaper interview of them to serve as Acting President of the Re- on the subject, President Clarke said, inter alia, public if the President of the Senate was unable to as follows : act as President of the Republic for whatever rea- son. “If I had been leaving the country on a Sunday to return the following Sunday, I would have no doubt The Failure of the House of in my mind that the President of the Senate would Representatives to Elect a Speaker act. But whether he should act when I am away 5 for one or two days, that is for me to determine.” After the December 2001 general election in Trinidad and Tobago, the House of Representa- This interpretation clearly places the burden of tives was unable to elect a Speaker at its first sit- determination of inability to perform presidential ting on 5th April, 2002. Parliament was prorogued duties on the President and removes any automatic on 6th April, 2002 and it was summoned for a sec- requirement to have an acting President if the sub- ond session on 28th August, 2002 in another at- stantive President does not believe that one is re- tempt to elect a Speaker which also failed. The quired. In the circumstances, the President of the Parliament was subsequently dissolved at mid- Senate does not automatically act as President. night on 28th August, 2002 without a Speaker. However, another President may hold a different view and this is open to debate on constitutional This created an area of weakness in the chain of grounds. command for the acting presidency as the chain could not go beyond the President of the Senate. The Potential for Defeated Even if the Vice – President of the Senate were to Candidates to be Elected assume duties as the acting President in a crisis, Presiding Officers there would not have been any Deputy Speaker to convene the Electoral College to elect someone Another possible complication arising out of the to act as President in accordance with section 27(3) model of using the Presiding Officers of Parlia- of the Constitution (supra) as there was no Speaker ment in the chain of command for the acting presi- or Deputy Speaker. dency is the possibility of having defeated candi- dates from a general election being elected as Pre- Additionally, if there were a state of emergency, siding Officers. the Proclamation by the President could only last fifteen days as there would be no Speaker to con- In November 1995 and in January 2001, defeated vene the House of Representatives to debate the candidates were elected to the office of Speaker statement by the President outlining the specific of the House of Representatives. In all Common- grounds on which the emergency was declared as wealth Caribbean Parliaments (with the exception required by the Constitution. 7 of ) the Speaker may be elected either Once again, the use of the Presiding Officers of

27 CHANGING OUR CONSTITUTION

Parliament in the chain of command for the presi- carry any political responsibility for the exercise dency has its own built-in complications when a of his / her discretionary powers, while Ministers Speaker cannot be elected. These complications bear responsibility for those powers exercised by can operate two ways by creating vulnerabilities the President on their advice. in the legislature and in the presidency. Apart from the fact that the President is not di- A related theoretical complication in cases where rectly elected at a general election, it appears as a Speaker is chosen from among the elected mem- though the concept of ‘The Monarch can do no bers could arise in relation to the age of the wrong’ has been transferred from the office of Speaker. Among the qualifications for the office Governor-General to the Presidency in Trinidad of President is a requirement that the person so and Tobago. This concept and its immunities are elected must be 35 years old. At the same time, best expressed as follows : the qualifications for election as a Member of Par- liament include that the person should be 18 years “English law has always clung to the theory that old. It is possible that a Speaker of the House of the king is subject to law and, accordingly, can Representatives who is 18 years old could act as break the law.....The courts were the king’s courts, President of the Republic notwithstanding the re- and like other feudal lords the king could not be quirement that the holder of the office should be sued in his own court. He could be plaintiff - and 35 years old. However, the same constitutional as plaintiff he had important prerogatives in the conundrum that applies to the President of the law of procedure - but he could not be defendant. Senate (supra) could also apply here. No form of writ or execution would issue against him, for there was no way of compelling his sub- Impact of the Method of Election mission to it. Even today, when most of the ob- on the Presidency stacles to justice have been removed, it has been found necessary to make important modifications The election of the President of Trinidad and To- of the law of procedure and execution in the bago highlights the challenge of devising a method Crown’s favour. of election that allows the holder of the office of President an important measure of legitimacy with- The maxim that ‘the king can do no wrong’ does out competing with the Prime Minister and the not in fact have much to do with this procedural Cabinet for political dominance in the system. immunity. Its true meaning is that the king has no legal power to do wrong. His legal position, the The method of indirect election dominated by the powers and prerogatives which distinguish him elected representatives of the people in Trinidad from an ordinary subject, is given to him by the and Tobago caters to that need. Trinidad and To- law, and the law gives him no authority to bago may be described as having a quasi-ceremo- transgress.....But the king had a personal as well nial Presidency based on the mixture of advisory as a political capacity, and in his personal capac- and minimal discretionary powers exercised by the ity he was just as capable of acting illegally as President. was anyone else - and there were special tempta- tions in his path. But the procedural obstacles were Impartiality, Responsibility the same in either capacity. English law never suc- ceeded in distinguishing effectively between the and Immunity king’s two capacities.” 8

The President of Trinidad and Tobago does not As far as Trinidad and Tobago is concerned, the

28 CHANGING OUR CONSTITUTION constitution provides the necessary exemptions for similar to the Governor-General of any Common- the exercise of the President’s powers in keeping wealth country in character still presented anoma- with the principle ‘that the king can do no wrong’. lies beyond the methods of election. The constitution also goes further to protect the President in both his / her official and personal To this end, certain aspects of the United States capacities. In Trinidad and Tobago, section 38 of Constitution appeared attractive enough for a pro- the Constitution reads as follows : cess of hybridization to take place.

“Subject to section 36, the President shall not be In the case of Trinidad and Tobago, the title of the answerable to any court for the performance of body that would elect the President was named the functions of his office or for any act done by the “Electoral College”. In trying to balance the him in the performance of those functions.” 9 shift to republicanism and yet maintain the im- partiality associated with the Crown, the use of There are also further exemptions in respect of the Presiding Officers of Parliament as eligible civil and criminal proceedings contained in the persons in a chain of command for the presidency same section. was a political response given to the framers of the constitution. Additionally, the exercise of powers by the Presi- dent on the advice of, or after consultation with, In Trinidad and Tobago the President of the Sen- any person or authority is protected from the scru- ate followed by the Speaker of the House of Rep- tiny of the courts by the Constitution. 10 resentatives is the dedicated chain of command. Where neither of them are able to act, then the While this is, perhaps, not an unusual protection Vice President of the Senate shall act as President for any Head of State to enjoy, the fact that politi- while the Deputy Speaker of the House of Repre- cal responsibility (exclusive of misbehaviour) does sentatives convenes a sitting of the Electoral Col- not exist and the fact that it is accompanied by lege to elect someone to act as President within judicial exemption places the President of Trinidad the first seven days of the Vice-President of the and Tobago in a special position in relation to the Senate acting as President. constitution and the law in some respects. The President exercises fundamental powers of ap- These arrangements seek, as far as possible, to pointment of persons to high offices of State and cloak the Presidency with the cloth of impartial- other important offices of a national character af- ity through the clever use of titles and functions ter consultation (which means that he is not di- that reveal a Westminster – Washington hybrid. rected on advice and can act in his own discretion or deliberate judgment once he has consulted rel- Exercise of Presidential Powers evant persons or authorities). in Cases of Transition

Republicanism and the Political change came to Trinidad and Tobago for United States Constitution the first time in 1986. The transition of power was smooth, however, the attitude of the new Prime In becoming a republic, Trinidad and Tobago was Minister A.N.R. Robinson towards the outgoing faced with the challenge of combining its republi- President Ellis Clarke left much to be desired in can presidency with its British foundations. The relation to appointments that were to be made by establishment of a presidency that was not dis- the President himself.

29 CHANGING OUR CONSTITUTION

The re-appointment of James Alva Bain to the before the President capitulated and made the ap- Public and Police Service Commissions on 31st pointments. December, 1986 ended up in a court battle that Prime Minister Robinson lost. This acrimony was There was further controversy when the President followed by further controversy over the appoint- delayed the dissolution of Parliament after that ment of former Chief Justice Cecil Kelsick, on advice was tendered by Prime Minister Panday in 14th March, 1987, to the Judicial and Legal Ser- October 2001. Further difficulties arose in Decem- vice Commission to replace who ber 2001 when Robinson removed Panday as had resigned in order to become the new Presi- Prime Minister in the face of an 18 – 18 tie. dent of the Republic. Any future conflict of this nature between the The fundamental issue was whether the President Prime Minister and the President will expand the ought to be swayed by the opinion of the Prime damage that has already been done to the presi- Minister in exercising his powers of appointment dency. Some have argued that the time has come after consultation (as opposed to advice). These for a merger of the functions of the Head of Gov- controversies resulted in the appointment of a ernment and the Head of State in order to avoid a Constitution Commission under the chairmanship repeat of these precedents, either in the office of of Sir Isaac Hyatali in June 1987. the Prime Minister or the office of the President.

Further controversy arose in 1997 when the UNC Under our current system of government, it is only / NAR coalition did not propose a third term for the Prime Minister who is required to bear politi- President Noor Hassanali, but rather accommo- cal responsibility for his actions. The President is dated the shift of ANR Robinson from his portfo- insulated from legal challenge by the Constitution lio of Minister Extraordinaire in the Cabinet of in sections 38(1) and 80(2). The Prime Minister is the coalition Government into the office of the bound by the collective responsibility of the Cabi- President. This move introduced the challenge of net to Parliament and by his own individual min- having a serving politician being elevated to the isterial responsibility to Parliament in the discharge presidency. Prime Minister Panday paid dearly for of his functions. The President has no such ac- this move as it was not long before President countability requirement and he is simultaneously Robinson engaged in open public defiance of the protected by the Constitution. Prime Minister by refusing his advice on the ex- ercise of certain constitutional functions where The public political wrangling that has taken place such advice was required. in the past between Prime Minister and President has now made the strongest case for changing the The country was subjected to the spectacle of the presidency at this time by merging the offices of President refusing the advice of the Prime Minis- Prime Minister and President into one. Future ter over the revocation of the appointment of two loopholes are likely to emerge if constitutional Senators and the refusal of the Prime Minister’s reform is not undertaken. advice to appoint another two Senators in their place in January 2000. By December 2000, there In more recent times, there have been problems was a lengthy delay in the re-appointment of for the presidency associated with the appointment as Prime Minister after the UNC and resignation of the entire Integrity Commis- won the general election. This was followed by sion of Trinidad and Tobago over a period of the refusal to appoint seven defeated candidates eleven days in May 2009. This came after the as Senators and a prolonged standoff of 55 days members of the previous Integrity Commission

30 CHANGING OUR CONSTITUTION had resigned in February 2009 following an ad- 3. Laws of Trinidad and Tobago, Ch. 1:01, Schedule, s. verse outcome in a matter in the High Court. Up 68(4). to the time of writing, the President had been un- 4. Laws of Trinidad and Tobago, Ch. 1:01, Schedule, s. able to appoint members of a new Integrity Com- 45(1) and s. 50(1). mission to effect the transition from one Commis- 5. See “President Clears the Air” in Sunday Guardian, sion to another. The political reality is that the 13th April, 1986, pp.1 and 18. The Sunday Guardian is President does not bear any political responsibil- a newspaper published in Trinidad and Tobago. ity to any person or authority for the appointment or the failure to appoint an Integrity Commission 6. For a fuller discussion on the office of Speaker in Trinidad and Tobago, see : Hamid Ghany “Parliamen- or any other Commission or office holder for tary Deadlock and the Removal of the Speaker : The which he is required to make an appointment. That Case of Trinidad and Tobago” in Journal of Legisla- is a major loophole in the existing Constitution. tive Studies 3 (2) (1997), pp. 112 - 138.

7. Laws of Trinidad and Tobago, Ch. 1:01, Schedule, s. 9. ENDNOTES 8. H.W.R. Wade, Administrative Law (Oxford Univer- sity Press, 1990), p.809. 1. Laws of Trinidad and Tobago, Ch. 1:01, Schedule, s. 40(2). 9. Laws of Trinidad and Tobago, Ch. 1:01, Schedule, s.38.

2. Laws of Trinidad and Tobago, Ch. 1:01, Schedule, s. 10. Laws of Trinidad and Tobago, Ch. 1:01, Schedule, s. 36(1). 80(2)

31 CHANGING OUR CONSTITUTION

Part Two

The Working Document on Constitutional Reform for Public Consultation

On 9th January, 2009, the Prime Minister of the our beloved country. Let us, therefore, never un- Republic of Trinidad and Tobago, derestimate the gravity of this undertaking. It is , M.P., laid in the House of Rep- one of the most important exercises since the at- resentatives “The Working Document on Consti- tainment of independence of this country. We must tutional Reform for Public Consultation”. give it the serious attention it deserves, and I urge Accoring to the Hansard for the House of Repre- all citizens to get involved. This is the inescap- sentatives for that date, the Prime Minister said able responsibility of nationhood.” 1 inter alia the following : The process of public consultation and discussion “I am sure by now it is clear that we will have an is about to begin. Having been asked by the extended period of discussion on a new Constitu- Honourable Prime Minister to lead this phase of tion for Trinidad and Tobago. My estimation is the process that he outlined in the House of Rep- that it would be almost two years before we are resentatives on 9th January, 2009, there are some able to finalize a document for the consideration explanatory comments that need to be made on of Parliament. The length of time, the depth of the Working Document. discussion and the participation by the citizenry are not only appropriate, but very necessary, given The Effect of Hybridization the seriousness of this matter. Arising out of these deliberations, the Government will then produce It is clear that the intention is to create a hybrid a Green Paper for further public comment. Mr. parliamentary – presidential constitution with Speaker, today we have completed an important parliamentarism being the dominant force in the phase in this all- important process. Let us, there- hybrid. It is clear also that the balance between fore, now go forward to shape a new Constitution the executive and the legislature will now be tilted for the Republic of Trinidad and Tobago; one that in favour of the legislature and the executive will would serve us well in this 21st Century and be- be weakened owing to the fact that there will no yond. As we seek to effect change, let us be mind- longer be a dominant parliamentary executive in ful of one inalienable fact: the basic and funda- which members of the Executive branch of the mental rights and freedoms of all the people in State (Cabinet and Ministers) will be now be pre- our diverse society must not only be preserved, vented (except for four ministers in each House) but strengthened. So thankfully entrenched are the from also being members of the Legislative branch principles of democracy in this country, that our of the State (Parliament). This will create a more citizens would tolerate nothing less. Whatever level political situation in relation to the Separa- changes we effect in our constitutional arrange- tion of Powers in which the dominance of the ments, we must continue to protect our country Cabinet over the Parliament will be diminished against any possible assaults on our freedoms or as persons who seek to stand for election as a belief in justice and equality for all the people of Member of the House of Representatives or are

32 CHANGING OUR CONSTITUTION appointed to the Senate will be doing so on the (ii) The retention of a nominated Senate ensures basis that they cannot become Ministers (except that the House of Representatives will be for four out of forty-one, for the time being, in the dominant over the Senate. When coupled with House of Representatives and four out of thirty- the removal of the President from that House seven in the proposed Senate). These persons will (unlike the current arrangement where the be seeking to become parliamentarians, not Min- Prime Minister is a member of that House), isters. The Cabinet is capped at twenty-five Min- the effect will be to make the House of Rep- isters and includes the President, the Vice-Presi- resentatives and whoever controls an effec- dent, the , the two Majority Lead- tive majority in it the effective power broker ers from both Houses of Parliament and such num- under the proposed constitution. ber of Ministers (not to exceed the remaining twenty positions of Minister that would be avail- (iii) The proposal to have the President appoint able) (see sections 96 and 97 of the Working Docu- four Ministers from each House of Parliament ment). as well as to have the Majority Leaders in either House become members of the Cabi- The possibility of the Majority Leader of the House net and also possibly appointed as Ministers of Representatives being in the Cabinet who does will provide the opportunity for more effec- not belong to the same political party as the Presi- tive power to reside with those Majority Lead- dent may arise if there is a hung Parliament at the ers and Ministers as they are the only ones commencement of the parliamentary term just af- who will sit in both the Executive (Cabinet) ter a general election. Seeing that the requirements and Legislative (Parliament) branches of gov- for the establishment of the new Cabinet list the ernment. In effect, the person who will be- Majority Leaders of the House and the Senate as come the most powerful of them all is likely members of the Cabinet, this will provide the out- to be the Majority Leader in the House of Rep- ward expression of a coalition in the Cabinet that resentatives seeing that the elected House of will be reflective of the inconclusive political out- Representatives is to be superior to the nomi- come in the House of Representatives after the nated Senate. general election. (iv) The Majority Leaders in both Houses can only The proposed merger between the existing office be removed for their inability to perform their of President and the existing office of Prime Min- functions and it is the Majority Leader in the ister (with the abolition of the office of Prime House of Representatives who must initiate Minister) will remove an impartial arbiter from any action with the Speaker to inform him / the system. The actual presidency that is now be- her about any members of parliament who ing proposed will be weaker than the office of support the majority who have either re- Prime Minister under the existing constitutional signed, or been expelled, from their party arrangements for the following reasons : (where there is a hung parliament, this func- tion will be muted for both Majority and Mi- (i) The election of the President through the nority Leaders in the House of Representa- House of Representatives and his / her re- tives and will not apply at all to third parties moval from that House after elevation to the – see section 64). This function does not presidency provides for a more rigid separa- reside with the President. In this way, the tion of powers which will strengthen the hand Majority Leader in the House of Representa- of that House in relation to the Executive. tives becomes a virtual Prime Minister be- cause of the hybrid model. This will have an

33 CHANGING OUR CONSTITUTION

impact on political party structures as two voice. As regards the confidence rule, the Major- poles of effective political power will be con- ity Leader in the House of Representatives will structed as opposed to the existence of one have to try and ensure that Government policy is under the existing constitution. These two supported in that House, however, as a power bro- poles of political power will be the President, ker, it is the Majority Leader and not the President on the one hand, who will be required to ex- who can effect compromises to policy and legis- ercise both the dignified and efficient aspects lation given his / her control over party discipline of power, and, the Majority Leader, who will in the House. manage the political majority in the House of Representatives and also sit in the Cabi- This change will alter the way in which political net, thereby making him / her a very power- parties will structure their legislative / parliamen- ful power broker in the party, the Cabinet and tary party arms as the Political Leader of a party the Parliament. may or may not be the Majority Leader. Based on how the Working Document has established the (v) The proposed retention of the parliamentary separate roles of the President and the Majority doctrine of the collective responsibility of the Leader there is unlikely to be any “maximum Cabinet to Parliament under these proposed leader”. The concept of the “maximum leader” is hybrid arrangements will strengthen the po- a phenomenon of the parliamentary system that litical power of the Majority Leader in the currently exists, but will not exist under the pro- House of Representatives and reduce the posed hybrid revisions. President to a dependent role in the process. The President is not accountable as head of In parliamentary systems, legislators who support the Cabinet to Parliament seeing that he / she the majority usually toe the party line so as to avoid will not be a member of the House of Repre- disrupting power arrangements for the Cabinet that sentatives. The only person who can ensure depends upon the continued confidence of a ma- the implementation of that collective respon- jority of elected legislators. Under this hybrid that sibility will be the Majority Leader in the promotes a greater separation of powers (by re- House of Representatives who leads that moving the President from Parliament), the fear House and who is also a member of the Cabi- of creating a Cabinet crisis is diminished and leg- net. islators will be free to treat with bills, motions, etc. in a more independent manner. The person Collective Responsibility that the legislators who support the majority party and the Hybrid will have to fear will be the Majority Leader, and not the President. Additionally, Ministers will be The constitutional doctrine of collective respon- free to publicly disagree with one another as there sibility as it applies in parliamentary systems has will be no fear of creating a Cabinet crisis as una- three main rules which are (i) the confidence rule; nimity will not have the same effect as under the (ii) the confidentiality rule; and (iii) the unanim- existing constitutional arrangements. The need for ity rule. Under this proposed hybrid, two of these discipline in the Cabinet will be the task of the rules, namely confidence and unanimity, can be President. Seeing that most Ministers will come breached without fear of Cabinet disruption. How- from outside of the Parliament, there will be no ever, the Cabinet will have to depend upon the problems in removing indisciplined Ministers. Majority Leaders in the House of Representatives However, political problems may arise in the cases and the Senate to uphold the unanimity rule so of Ministers from the House of Representatives that the Government will speak with only one who are dismissed from, or who may resign, their

34 CHANGING OUR CONSTITUTION ministerial portfolios as they may join others in Representatives and the Senate (clause 102). Also, the House of Representatives who may not toe the the Working Document speaks about Ministers party line. being required to appear in either House to report on the conduct of his / her duties as a Minister The invocation of the crossing-the-floor provisions [clause 79(1)(c)]. by the Majority Leader will lead to bye elections in the first four years of the Parliament. Any re- The appointment of Ministers from outside of versals in those bye elections for the party with a Parliament and a minority of Ministers from in- majority may lead to a Parliament controlled by side of Parliament will greatly remove any danger another party and a Cabinet dominated by the party that a lack of unanimity will bring for the Cabinet that previously had a majority in the Parliament. (unlike the dangers that would be posed under the With this hybrid, the Cabinet will not collapse (as existing constitution). The requirement for all would be the case under the doctrine of collective Ministers to belong to the Legislature (House of responsibility under the present constitution). All Representatives or the Senate) in parliamentary that would happen is that the Parliament will con- systems (which is the constitutional device that tinue and the Cabinet will continue and they will gives expression to the unanimity rule in the doc- have to engage in constructive dialogue and com- trine of collective responsibility in parliamentary promise in order to effect policy and legislative systems) will be altered in such a way that either changes. The President may decide to dissolve public disagreement among Ministers or internal Parliament, but that will also terminate the presi- divisions within the Cabinet will enhance the dency as well. power base of those Ministers who are also elected parliamentarians. Their possible dismissal will The removal of the motion of no confidence that lead to their greater independence without over- applies to the Prime Minister under the existing throwing the President thereby creating legisla- constitution and the retention of the doctrine of tive management problems for the President and collective responsibility will create a constitutional the Cabinet. Party discipline in the House of conundrum. Instead of the motion of no confidence Representatives will be enforceable by the (which is the constitutional device that gives ex- Majority Leader and not the President. pression to the confidence rule in the doctrine of collective responsibility in parliamentary systems), The retention of the provisions for the exercise of it is proposed to subject the new president to the presidential powers under the existing constitu- impeachment procedures for the presidency that tion for the proposed constitution will diminish exist under the current constitution. This means the powers of the President under this parliamen- that the confidence rule that applies to the doc- tary – presidential hybrid. The requirement to have trine of collective responsibility will no longer the President act in accordance with the advice of exist, but the doctrine will still apply. By this the Cabinet will substantially reduce the level of means, power sharing can be effected with one presidential influence and power. In presidential party controlling the presidency and another party systems, the Cabinet is advisory to the Presi- controlling the parliament if there is a hung par- dent and the President acts in his / her own liament. Outside of that, the President and the deliberate judgment. This is not the case here. Cabinet will have to account to the Parliament for their general direction and control of the affairs of In this hybrid, the President has to take his / her state. The Working Document speaks about the directions from the Cabinet which will substan- President keeping Parliament fully informed tially alter the way in which power will be exer- through addresses to joint sittings of the House of cised. The majority vote of the Cabinet will bind

35 CHANGING OUR CONSTITUTION the President (as the President will now be a mem- (c) in cases where no party secures a majority ber of the Cabinet), unlike the current arrange- and / or none of the presidential candidates ments whereby the President (who is not a mem- have won their seats, there will be cross-party ber of the Cabinet) acts on the advice of the Prime negotiations to determine who should be rec- Minister (who chairs the Cabinet and whose word ognized by the Chairman of the Elections and is accepted by the President regardless of the out- Boundaries Commission for appointment as come inside the Cabinet). the President;

The Presidency and the Hybrid (d) these proposed arrangements lend themselves to power-sharing opportunities more so than Presidential powers under this hybrid will be fur- the existing constitutional arrangements; ther reduced by the removal of the veto power in respect of legislation that is currently available to (e) the creation of a co-terminous presidency with the President under the existing constitution. The the House of Representatives implies that the absence of a veto power means that the President use of the power of dissolution by the Presi- must enact whatever legislation is sent to him / dent also terminates the term of office of the her by the Parliament and such legislation will not President which diminishes the power of the be alterable by the President as he / she will only President insofar as the President will have have a power to assent and not to veto. This will no guarantee of being re-nominated by his / enhance the powers of the Legislature over the her party as their presidential candidate which Executive as any failure by the President to assent will precede whether or not the party will win to legislation approved by Parliament will consti- the ensuing general election; tute a violation of the constitution if more than fourteen days elapses after a Bill is presented to (f) the exercise of the power of prorogation by him / her for assent. the President on the advice of the Cabinet will The political will has been expressed for a Presi- provide the President and the Cabinet an ad- dent to be elected by indirect means through the vantage over Parliament to send it into a re- House of Representatives as opposed to a direct cess if the Parliament is hostile to the Execu- election. The effect of the proposals are as fol- tive and this can only be overcome by the re- lows : quirement to have a sitting once every six months between one session and another. (a) each candidate for the office of President does There will also be the requirement for the not have to be the political leader of their party President to address a joint sitting of both and political parties are free to choose their Houses of Parliament at least once per year. presidential candidates by whatever means These two requirements may be combined that will be acceptable to the Elections and into one; however, the requirements for the Boundaries Commission; approval of the Appropriation Act and the need to avoid annulment of presidential noti- (b) in cases where the presidential candidate of a fications in the House of Representatives in party does not win his / her seat but the party respect of appointments to a range of high wins a majority, the political leader of that offices of State will put pressure on the Presi- party shall choose another person as their dent and the Cabinet to avoid lengthy proro- presidential candidate from among its elected gations or time the use of prorogation as a members for appointment as President; disabling tool against the Parliament;

36 CHANGING OUR CONSTITUTION

(g) this aspect of the hybrid at (f) will need to be The Judiciary closely reviewed to determine the extent to which the Parliament may enjoy some sepa- The judicial provisions appear to mirror the de- ration of powers on the subject of proroga- velopments that have taken place in the United tion by the Executive. Kingdom insofar as the office of Lord Chancellor has been substantially altered and there has been The Senate the creation of a Ministry of Justice. The effect of this hybrid is to separate the powers given to the The proposed Senate will be nominated and secu- Chief Justice at independence to be both a jurist rity of tenure will be given only to those Senators and an administrator and leave the Chief Justice who will be appointed to represent special inter- with judicial powers and place the responsibility ests. Nothing will prevent any President from ap- for the administrative powers in the hands of a pointing persons who are loyal to the party of the line Minister of Justice who will be responsible President as Senators to represent special inter- to Parliament for the administration of justice. ests and they will only be removable by a motion passed in the Senate. This can become controver- In the making of these changes in the United King- sial as it will be a matter of political trust. dom, there was a Concordat between the Lord Chief Justice and the Lord Chancellor that was The appointment of Senators by the President will announced in January 2004, the enactment of a obviously be done by presidential instrument with Constitutional Reform Act in 2005, the creation the seal of the State, however, in the case of Sena- of a Ministry of Justice in May 2007 and the com- tors appointed on the advice of the Minority Leader mencement of Supreme Court of the United King- they will be removable by a direct notification to dom in October 2009. the President of the Senate from the Minority Leader after their appointment. This will allow Insofar as the Lord Chancellor (who is also the insulation for the appointments of those Senators Secretary of State for Justice) and the Lord Chief supportive of the Minority Leader to the extent Justice were concerned, it was necessary for both that the President cannot remove them by the use offices to have a Concordat to govern their rela- of State power. tions. Given the comments of the Chief Justice of Trinidad and Tobago at the opening of the 2009 / However, as a general principle, the President of 2010 Law term in September 2009 in Trinidad and the Senate under this hybrid will now be given Tobago, this may be a useful tool to be pursued if the power to declare a seat vacant before any ap- the political will to have a Ministry of Justice is pointment can be made by the President or the going to be sustained. Minority Leader in respect of filling a vacancy after the first appointments are made. The matter of the need for reform in the Judiciary was perhaps best made by Professor Selwyn Ryan This power does not currently exist in relation to writing in his weekly column in the Sunday Ex- the President of the Senate and, therefore, the need press on Sunday 13th February, 2005 under the for concurrence between the President and the headline “Regime Change Needed in Judiciary”. President of the Senate will be required before a He dealt with matters beyond the system itself. senatorial seat is declared vacant. According to him :

“It is in fact now becoming clearer that what we

37 CHANGING OUR CONSTITUTION seem to have done when we achieved indepen- Eric Williams and others who felt that seniority dence in 1962 was to interweave the woolen wig was not a criterion one used to choose a Chief of the colonizer with the ethnic hair of the tribes- Justice. It was also asserted that Phillips, though man. We did it so ‘skillessly’ that the links between a very brilliant lawyer, (some claim that he was the one and the other are there for all who have better than Wooding) was too eccentric (he was eyes to see.” 2 known to have a ‘mental’ problem) to be appointed Chief Justice, a job which required its holder to Ryan argues that the problems in the Judiciary may be the Chief Administrative Officer of the Judi- not be systemic, but instead ought to be viewed in cial Branch. It was argued by the President of the the context of the personalities. He goes further to Bar Association, Gaston Johnson and others that say : Phillips’ health would not stand up under the strain. Fraser and Georges wanted Phillips to be “It is also clear that there continues to be a great Chief Justice and it was understood that they deal of cronyism and jockeying for position within would have helped him to ‘arrange things’ when- the judiciary and that the brethren are as divided ever necessary. Others felt that the real reason along ethnic and personal lines as they have been for Hyatali’s choice had to do with the fact that he in the past.” 3 was regarded as being more politically pliable. It would however appear that in the final analysis Such a scathing attack on the personnel of the Ju- the critical factor was neither Clement Phillips’s diciary who dispense justice to the nation cannot poor health, the fact that he was not politically be ignored simply on the grounds of maintaining pliable, the fact that his wife had annoyed Will- independence of the judiciary. If this is what the iams by lobbying for his appointment, or that framers of the independence constitution had in- Wooding had backed Phillips. Hyatali was ap- tended, then what are we protecting ? Is the Judi- pointed as part of an ethnic package deal. After ciary as racially divided as Ryan makes it out to considering the Wooding / Procope proposal to be ? This is not a new position taken by Ryan about split the responsibility of the job between a Chan- the political positions adopted by judges. In writ- cellor and a Chief Justice or Hudson-Phillips’ ing the biography of the late Sir Hugh Wooding, proposal to recall Ellis Clarke to occupy the post, first Chief Justice of Trinidad and Tobago, Ryan Williams opted for Hyatali because he was an In- had this to say about the appointment of Mr. Jus- dian.” 4 tice Isaac Hyatali as Chief Justice in July 1972 : Based on this account, one must ask whether a “There were some who felt that control of the high- mistake was made at independence in the way that est judicial office in the land had passed to some- our judicial system was established ? Ryan asserted one who was too partial to the concerns of the in 2005 that there was a mistake and he seems to executive and that control of the highest judicial suggest that it is now necessary to unweave what office in the land had been snatched from the hands he calls the “woolen wig” from the “ethnic hair”. of the group which had controlled it during the His link between ethnicity and judicial politics in decade following Independence and which had Trinidad and Tobago is not a recent viewpoint and established certain traditions which now appeared his language is crystal clear. If that is so, then what to be in danger. Those who defended the logic of must be done ? Hyatali’s appointment note that he was appointed to the Appeal Court earlier than Clement-Phillips Ellis Clarke indicated in his pre-independence and was thus senior, even if by a few minutes. This memorandum of 16th April, 1962 (supra) that the was an argument that was not taken seriously by office of Chief Justice that was created at inde-

38 CHANGING OUR CONSTITUTION pendence was akin to that of the Lord Chancellor training, including training on basic constitutional in Great Britain at that time. Since that time, Great issues. Such resources should be made available Britain has significantly revised the office of Lord and programmes established for judicial training Chancellor by separating the judicial functions of under the control of the Head of the Judiciary.” 5 that office into the Lord Chief Justice (judicial) and Secretary of State for Justice and Lord Chan- While the Edinburgh Plan of Action for the Com- cellor (political / administrative). monwealth envisages consultation between the Head of the Judiciary and the relevant Minister of Can such a reform work here or are the woolen Government responsible for the running of the wig and the ethnic hair interminably interwoven ? courts before Parliament approves resources for the judiciary, the fundamental premise of the ar- The Edinburgh Plan of Action and gument is that the judiciary must be given adequate the Independence of the Judiciary resources for it to function so as not to compro- mise the independence of the judiciary. The Edinburgh Plan of Action for the Common- wealth that was prepared at the end of the Com- The Edinburgh Plan of Action goes further to say: monwealth (Latimer House) Colloquium held on 6th and 7th July, 2008 at the Scottish Parliament “2.3 Judicial accountability and confidence build- and presented to the Commonwealth Law Minis- ing ters meeting in Edinburgh in July 2008, in recall- ing the Commonwealth (Latimer House) Prin- ‘Judges are accountable to the Constitution and ciples (CLHP) that were endorsed at the Common- to the law which they must apply honestly, inde- wealth Heads of Government Meeting in Abuja, pendently and with integrity.’ (CLHP VII- b) Nigeria in 2003, advocated the following in re- spect of the Judiciary : ACTION: The Heads of the Judiciary should submit regular “1.3 Independence of the Judiciary reviews to Parliaments on the financing and ad- ministration of the courts. ‘Adequate resources should be provided for the judicial system to operate effectively without The judiciary should continue to develop and re- any undue constraints which may hamper the view their codes of conduct/ethics on a regular independence sought.’ (CLHP –IV.3) basis.

ACTION: Information on the complaints and disciplinary The allocation of resources by Parliament, for the procedures in relation to judicial misconduct 6 judiciary and the running of the courts, should be should be publicly available.” made following consultation between the Head of the Judiciary and the relevant minister. The Edinburgh Plan of Action is envisaging a level of functional cooperation between the Judiciary Appropriate dispute resolution mechanisms should and Parliament and the Judiciary and the Execu- be put in place to deal with any disputes arising tive, on the one hand, and the Judiciary and the in relation to the allocation of resources. public, on the other hand, which will promote con- fidence building in the public domain. The There remain jurisdictions where adequate re- Edinburgh Plan of Action was submitted to Com- sources have not been made available for judicial monwealth Law Ministers for consideration at

39 CHANGING OUR CONSTITUTION their Meeting in Edinburgh over the period 8th – General Comments 11th July, 2008. It is possible that this attempted move away from According to the Communiqué issued at the end maximum political leadership towards power- of the Commonwealth Law Ministers meeting in sharing and consociational democracy may cause Edinburgh in July 2008 at paragraph 7 : some disquiet in the public domain because the analysis of it may be personalized and the famil- “7. The latter paper provided the basis for the iarity with other constitutional norms may limited. High Level Panel deliberations, which covered Further comments and discussion may help to many important contemporary issues relating to enhance the thinking on, and development of, a the diverse challenges facing the rule of law, in- parliamentary-presidential hybrid that shares cluding the central role of the Justice Minister in power as opposed to concentrating it. defending the independence of the judiciary, fa- cilitating international cooperation in the light of differing legal regimes and governmental struc- NOTES tures, and strengthening the interaction of Law Ministries with other stakeholders in the devel- 1. Hansard, House of Representatives, 9th January, 2009, opment and implementation of legal policy.” 7 Vol. 8, Session 2009, p. 35.

2. Sunday Express, 13th February, 2005, p. 11. The question of a Minister of Justice relating to a Chief Justice has been accepted at various fora in 3. Sunday Express, 13th February, 2005, p. 11. the Commonwealth as means of carrying out the 4. Selwyn Ryan, The Pursuit of Honour : The Life and administration of justice. This will become a mat- Times of H.O.B. Wooding, ISER, UWI, St. August- ter on which further deliberation and consultation ine, 1990, pp. 223 – 224. is likely to take place based on the experiences in other Commonwealth countries. The reforms in 5. “The Edinburgh Plan of Action for the Common- wealth” prepared by the Commonwealth (Latimer the United Kingdom with regard to the Lord Chan- House) Colloquium, held at the Scottish Parliament, 6 cellor and Secretary of State for Justice, on the – 7 July, 2008, para. 1.3. one hand, and the Lord Chief Justice, on the other hand, was the subject of extensive review by a 6. “The Edinburgh Plan of Action for the Common- 8 wealth” prepared by the Commonwealth (Latimer Select Committee of the House of Lords. House) Colloquium, held at the Scottish Parliament, 6 – 7 July, 2008, para. 2.3.

7. Commonwealth Law Ministers Meeting Communiqué 2008, (Commonwealth Secretariat, London, July 2008), para.7.

8. Select Committee on the Constitution, Sixth Report, Session 2006 – 2007, “Relations between the execu- tive, the judiciary and Parliament” (House of Lords Paper 151).

40 CHANGING OUR CONSTITUTION

Part Three

Comparison with the Existing Constitution

The independence draft constitution was first pub- Williams disputed most of their report in his con- lished for public comment on 19th February, 1962 tribution to the House of Representatives in De- and subsequently on 10th March, 1962, the Sec- cember 1974 when the documents were laid in retary to the Cabinet, Alan Reece, issued invita- Parliament. He subsequently appointed Mr. tions to civil society groups to offer their com- Wilfred Mc Kell, the then Director of Personnel ments on the draft at a meeting of commentators Administration, to receive comments on the con- on the draft constitution that was to be held at stitution in 1975, this was followed by a Joint Se- Queen’s Hall from 25th to 27th April, 1962. Fol- lect Committee of Parliament and then the new lowing that, there was a Joint Select Committee constitution was enacted in 1976 before the dis- of the Parliament on the draft constitution that sat solution of Parliament for the general elections of between 9th and 16th May, 1962. This was fol- that year. The period of consultation started in 1971 lowed by the Marlborough House Conference in and ended in 1976. London from 28th May to 8th June, 1962 to dis- cuss the draft constitution. After that, the final draft The current exercise for the review of the 1976 was prepared and Trinidad and Tobago became republican constitution (the existing constitution) independent on 31st August, 1962. The consulta- started in 2006 and involved the establishment of tion period for the independence constitution only a Round Table of scholars, technocrats and Min- lasted from 19th February to 8th June, 1962. Af- isters that considered two draft constitutions – the ter that the final draft was prepared in London in Ellis Clarke draft and the Principles of Fairness time for the celebration of Independence Day on draft (both produced in 2006). There were nation- 31st August, 1962. wide public consultations co-chaired by Profes- sors Selwyn Ryan and John La Guerre in 2006 In the case of the 1976 republican constitution, a and 2007, further discussions within the Round Constitution Commission, under the chairmanship Table in 2007 that were adjourned for the holding of Sir Hugh Wooding, a retired Chief Justice of of the 2007 general election and resumed in 2008 Trinidad and Tobago, was announced in the with an additional member. Discussions contin- Throne Speech read by the Governor-General, Sir ued throughout 2008 and a Working Document , at the opening of Parliament on was laid in the House of Representatives in Janu- 18th June, 1971. The Prime Minister, Dr. Eric ary 2009. Williams, had to employ this method because the Parliament that assembled on 18th June, 1971 af- Nationwide public consultations are to be held ter the general election of 24th May, 1971 did not again in 2009 and 2010 on the Working Docu- have any opposition members. In the circum- ment before a report is submitted to the Govern- stances, Williams had to use the Commission of ment for their consideration. After that, it is pro- Inquiry as an alternative technique for consulta- posed that a Green Paper will be produced by the tion. Government as an official statement of their policy and any future activities beyond that will be an- That Commission reported in January 1974 and nounced by the Government.

41 CHANGING OUR CONSTITUTION

The Working Document and the existing Consti- Existing Constitution : “law” includes any enact- tution will now be compared in a simple, but not ment, and any Act or statutory instrument of the simplistic manner. United Kingdom that before the commencement of this Constitution had effect as part of the law Preamble and Preliminary of Trinidad and Tobago, having the force of law and any unwritten rule of law. The Preamble has remained the same as in the existing Constitution except for the change of the Working Document : “law” includes any written word “community” which has been replaced by and unwritten law, and any Act of Parliament or the word “society” in line three of clause (b). The statutory instrument of the United Kingdom that effect of this change appears to be more broad- before the commencement of this Constitution has based. effect as part of the law of Trinidad and Tobago.

The Preliminary clauses remain the same in This may be a matter of some debate as regards clauses 1 and 2. Clause 3 adds ten new words to the re-arrangement of the words “unwritten rule this interpretation section. These new words for of law” at the end of the sentence in the existing which definitions are provided are (i) “Act”; (ii) Constitution into “unwritten law” at the com- “Caribbean Court of Justice”; (iii) “Government”; mencement of the sentence in the Working Docu- (iv) “House of Assembly”; (v) “Local Government ment. body”; (vi) “Minority Leader”; (vii) “Minister”; (viii) “President”; (ix) “Senator”; and, (x) “State”. Chapter One - The Recognition Clause 3 also removes two words from the exist- and Protection of Fundamental ing Constitution, namely “the Commonwealth” Human Rights and Freedoms and “Judicial Committee”.

In the case of the removal of the words “Judicial Part One Committee”, it is apparent that inclusion of the new words “Caribbean Court of Justice” will be Part One of Chapter One has retained essentially in conflict with “Judicial Committee” as the po- the same intent as the existing Constitution; how- litical intention of the Working Document is to ever, there are expansions in the application of the replace the Judicial Committee of the Privy Coun- rights and freedoms when compared to the exist- cil with the Caribbean Court of Justice. ing Constitution which has followed the model of the Canadian Bill of Rights 1960. As regards the omission of the words “the Com- monwealth” from the Working Document, it is The expansions in the Working Document seem difficult to assess whether this was an oversight to lean somewhat in the direction of the European or whether the draftsman felt that the provisions Convention on Human Rights 1950 model by the of Chapter Two, in general, or clause 30, in par- inclusion of some prohibitions against infringe- ticular, of the Working Document were adequate ments. This may be seen as a hybridization of the for a definition of the Commonwealth. Bill of Rights in an attempt to expand what it of- fers the citizen by way of the recognition and pro- Insofar as the definition of the word “law” in clause tection of fundamental human rights and freedoms. 3 of the Working Document is concerned, there is a change from the existing Constitution. The These expansions may be categorized as follows : change can be seen as follows :

42 CHANGING OUR CONSTITUTION

(a) The use of the word “Everyone” at the be- This freedom is further expanded in the Work- ginning of clauses 5 to 10 and 12 to 16 makes ing Document to include freedom of belief clear to whom these clauses are applicable; and opinion which is not present in the exist- ing Constitution; (b) clauses 5 and 6 are an expansion of section 4(a) of the existing Constitution; (i) clause 15 imposes a restraint upon the provi- sions of section 4(j) of the existing Constitu- (c) clause 7 expands section 4(b) of the existing tion by restricting freedom of association to Constitution to provide for the “equal pro- “lawful purpose”, while leaving freedom of tection of the law” which is not expressly assembly untouched; stated in the existing Constitution; (j) clause 16 expands freedom of the press from (d) clause 9 expands the recognition and protec- the provisions of section 4(k) in the existing tion afforded everyone in respect of their pri- Constitution by including “other media of vate and family life in section 4(c) of the ex- communication”, while simultaneously im- isting Constitution to include their home and posing a denial clause against the advocacy correspondence, while including a denial of hatred, ridicule or contempt in the pursu- clause against unreasonable search or seizure; ance of this freedom;

(e) clause 10 expands the provisions of section (k) clause 18 is a saving clause for any existing 4(e) of the existing Constitution by includ- right or freedom on the ground that if it is not ing the right to make political choices; included in the Working Document or is only included in a part of Chapter One of the Work- (f) clause 11 is expanded to permit a parent or ing Document, then it is protected from ab- guardian to obtain access to educational fa- rogation, abridgement or infringement. cilities for his child or ward over and above the existing provisions in section 4(f) that Part Two relate only to the provision of a school of his choice for the education of his child or ward; Part Two of Chapter One is designed in a manner similar to the existing Constitution insofar as it (g) clause 13 is expands section 4(h) of the ex- continues to make provision for “Exceptions for isting Constitution by including a denial Existing Law” . The significant alteration is the clause against the advocacy of hatred, ridi- incorporation of the provisions of section 5(1) and cule or contempt in the pursuance of their 5(3) from the Constitution of the Republic of right to enjoy freedom of conscience and re- Trinidad and Tobago Act (Act No. 4 of 1976) into ligion. Religious belief and observance in the the provisions for the “Savings for existing law” existing Constitution have been combined clause in the Working Document. into “freedom of religion” in the Working Document; The effect of this is to permit all laws in force at the commencement of the new Constitution (the (h) clause 14 expands section 4(i) of the existing existing laws) to continue being in force, while Constitution by including a denial clause providing for them to be construed with such against the advocacy of hatred, ridicule or modifications, adaptations, qualifications and ex- contempt in their pursuance of their right to ceptions as may be necessary to bring them into enjoy freedom of thought and expression. conformity with the new Constitution.

43 CHANGING OUR CONSTITUTION

Part Three (b) provision is made in clause 33(2) of the Work- ing Document for persons born outside of Trinidad Part Three of Chapter One retains essentially the and Tobago to assume the citizenship of their same provisions for the “Exceptions for Emergen- mothers in cases where they are born aboard a reg- cies” as are to be found in the existing Constitu- istered ship or aircraft or an unregistered ship or tion. There are two alterations to those provisions. aircraft or the aircraft of the government of any country. The first is to be found in clause 24(1) of the Work- ing Document where the qualifications for the at- Chapter Three – The Presidency torney-at-law who is to preside over a detention tribunal are specified. These qualifications are that Chapter Three of the Working Document repre- the attorney-at-law must have been qualified for sents the most fundamental area of change from ten years and must be practicing in Trinidad and the existing Constitution. It alters the premise of Tobago. the presidency by substituting the House of Rep- resentatives for the Electoral College in the method The second is to be found in clause 25(1) of the of election. The effect of this change is to retain Working Document whereby the publication of the the method of indirect election of the President existence of a state of emergency and related docu- by the Parliament with the significant alteration ments where it is impracticable or inexpedient to that the will of the majority of the elected repre- publish such notifications in the Gazette, they may sentatives of the people will not compete with the also be brought to the attention of the public by nominated Senators for the election of the Presi- any other means seeking to reach the widest pub- dent. lic. This is in addition to the existing provisions whereby such documents may be affixed to pub- In the circumstances, it expects the presidency to lic buildings, distributed amongst the public, and be filled by one of the members of the House of announced orally in the public. Representatives and that such a person must have been designated by their political party as their Parts Four and Five presidential candidate among all of their other candidates prior to the general election. That presi- Part Four (Exceptions for Certain Legislation) and dential candidate (once so designated) will also Part Five (General - that relates to the enforce- have an alternate candidate standing for election ment of the protective provisions) of the Working with them in their constituency. The purpose of Document remain essentially the same as in the that alternate candidate is to fill any vacancy in existing Constitution. the constituency that may arise if the presidential candidate wins his / her seat and is subsequently Chapter Two – Citizenship elected President.

The provisions of Chapter Two relating to citi- The effect will be to ensure that there is no need zenship have remained essentially the same as in for a bye election in that constituency while satis- the existing Constitution with the following two fying the need to remove the President from the exceptions : House of Representatives to ensure a separation of powers between the President and the Parlia- (a) provision is made in clause 32(d) of the Work- ment. ing Document for former citizens of Trinidad and Tobago to be able to re-acquire their citizenship; Provision is made for the office of Vice–President.

44 CHANGING OUR CONSTITUTION

The person holding this office will be selected by its presidential candidate loses his / her seat and the President from among members of the House the political leader of that party fails to designate of Representatives or the Senators and can be re- another elected member of his / her party as its moved from office by the President in his / her presidential nominee for appointment by the Chair- discretion. There is a prohibition clause [39(3)] in man of the Elections and Boundaries Commission. the Working Document which prevents the Presi- The Speaker of the House of Representatives will dent from appointing the Vice-President as the preside over this election. Majority Leader in either the House of Represen- tatives or the Senate. In cases where the elected members of the major- ity party or the elected members of the parties that The Vice-President shall act temporarily as Presi- have joined together to secure a majority fail to dent in cases where the President is incapable of elect someone from among them to become the performing the functions of the presidency by rea- President, then the Speaker will select an elected son of absence or illness or otherwise. In cases member from among those of the majority party where the Vice-President is unable to assume these or the parties that joined together to secure a ma- duties, the President shall appoint another mem- jority to be appointed as the President. In exercis- ber of Parliament to act temporarily as President. ing this power, the Speaker will choose the elected member who in his opinion is most likely to com- In cases where the Vice-President is required to mand the support of the majority of the members perform the functions of the office of President, of the House of Representatives and who is will- the Vice-President shall temporarily cease to per- ing to be the President. form his / her functions as a member of the House of Representatives or the Senate and shall resume In the circumstances where the elected member those functions upon ceasing to act as President. who is appointed President was not a designated presidential candidate of any of the political par- The Vice-President shall vacate his / her office in ties, then it will be necessary to hold a bye elec- cases where (i) someone else is appointed Vice- tion in the constituency for which that member President, (ii) he / she is appointed President or had been elected. re-appointed as Vice-President after a dissolution of Parliament, or (iii) loses their qualifications to Once a President is elected that President shall be a member of the House of Representatives or assume office upon the expiration of fourteen days the Senate as the case may be. after his / her election.

The President is to be elected by an actual major- A second general election will have to be held in ity vote in the House of Representatives in cases cases where no political party or coalition of par- where no political party wins a majority of seats ties can secure a majority and there is no quorum and two or more parties join to secure a majority of the House of Representatives after two occa- and they fail to elect from among themselves a sions to try to elect a President. Such a general member to be the President. The Speaker of the election will be held within thirty-five days of the House of Representatives will preside over this dissolution of Parliament which must be done by election. the President in office within five days of receiv- ing correspondence from the Speaker to this ef- There will be a vote among the elected members fect. of a party that wins a majority of seats in the House of Representatives after a general election where The term of office of the President is linked to the

45 CHANGING OUR CONSTITUTION election of a successor President. In the circum- be appointed after consultation with the Tobago stances, there is no vacancy in the office of Presi- House of Assembly. dent and the onus is on the members of the House of Representatives to elect a President from among The tenure of office of Senators has been revised a majority of themselves in order for the term of in the Working Document when compared to the office of one President to end and the term of of- existing Constitution. Provision is now being made fice of another President to begin. in the Working Document at clause 57 for the President of the Senate to declare the seat of a Provision is made for the President to vacate his / Senator vacant. Under the existing Constitution her office in cases of death, resignation, impeach- at section 43(2), the President of the Republic ment, election of someone else as President, or declares the seat of a Senator vacant. The Work- loss of qualifications to be elected as a member of ing Document divides the termination of office the House of Representatives. into three categories, namely, (i) the President to advise the President of the Senate of the appoint- The immunities of the presidency remain the same ment of a new Senator in respect of the nineteen as in the existing Constitution and the determina- Senators that he / she can appoint in his / her dis- tion of questions as to the election of the Presi- cretion and the President of the Senate declares dent have been consequentially modified to reflect the seat vacant; (ii) the Minority Leader to advise the roles of the Chairman of the Elections and the President of the Senate that a new Senator is Boundaries Commission and the Speaker of the to be appointed and the President of the Senate House of Representatives in the certification of declares the seat vacant; and (iii) a motion for the the election of the President. removal of any of the eleven Senators appointed is passed by the Senate and the President of the Chapter Four – Parliament Senate declares the seat vacant.

Chapter Four of the Working Document retains No new appointments can be made by the Presi- the Parliament of Trinidad and Tobago as consist- dent if the President of the Senate does not de- ing of the President, the Senate and the House of clare the seat of a Senator vacant. No provision is Representatives. made for the resolution of a difference of opinion between the President and the President of the The Senate Senate so that all Senators appointed at the dis- cretion of the President, once appointed, can only The size of the Senate is increased from thirty- be removed if there is concurrence between the one in the existing Constitution to thirty-seven in President and the President of the Senate for the the Working Document. All appointments to the removal. Those Senators appointed by the Minor- Senate will be made by the President using the ity Leader can only be removed if there is concur- following formula (i) nineteen in his / her own rence between the Minority Leader and the Presi- discretion; (ii) seven on the advice of the Minor- dent of the Senate. As regards those Senators ap- ity Leader; (iii) eleven after consultation with vari- pointed by the President to represent various spe- ous interest groups and organizations with a re- cial interests, the President of the Senate will be quirement that a representative shall be appointed required to concur with a majority of the Senate from the following sectors : business, labour, the to declare the seat of such a Senator vacant after a environment, the village council movement, the motion for his removal has been passed. energy sector, and finance. There is also a special requirement that two Senators from Tobago must In respect of the tenure of the President of the Sen-

46 CHANGING OUR CONSTITUTION ate, he / she will have to agree to declare his / her to be passed in the House of Representatives as own seat vacant if any replacement Senator is to that would be the only way to secure a majority, be appointed in his / her place. pending the holding of bye elections if the legal challenges go against the dissenting M.P.s. The Additionally, the President of the Senate is being outcome of the bye elections can also change the given the power to appoint temporary Senators on composition of the House of Representatives. the advice of the President or the Minority Leader as the case may be. In the case of the Minority Leader, the control of the elected members in the House of Representa- The provisions regarding the qualifications and tives from his / her party could also face the same disqualifications for the appointment of Senators challenges. If there are any third parties in the in the Working Document are comparable to the House of Representatives, these provisions will existing Constitution. not apply to them.

The provisions regarding the election and func- The provisions regarding the Speaker and the tioning of the President of the Senate and the Vice- Deputy Speaker are comparable to the existing President of the Senate are comparable to the ex- Constitution. isting Constitution. Powers, Privileges and The House of Representatives Procedure of Parliament

The composition, manner of election, and tenure The entrenchment provisions are applied with the of members of the House of Representatives in same methodology of permitting amendments to the Working Document are comparable to the ex- the Constitution with (i) simple majorities in both isting Constitution with one major difference. The Houses of Parliament, (ii) a two-thirds majority enforcement of the “crossing-the-floor” provisions in both Houses of Parliament; and (iii) a three- in clauses 63(2)(e) and 64(1) in the Working Docu- quarters majority in the House of Representatives ment place the responsibility for enforcement and and a two-thirds majority in the Senate. party discipline with the Majority and Minority Leaders, as the case may be, of the members who Under clause 73 of the Working Document, the have either resigned from, or been expelled, by Minority Leader (known as the Leader of the Op- their parties. position under the existing Constitution) has been given the right to set the Order Paper of each House When compared to the existing Constitution, the once per month on a date agreed upon by the Presi- difference is that a party with a majority may lose dent. that majority if there are enough dissenting M.P.s who cease to perform their functions by virtue of The quorum for each House has been increased in the declaration of the Speaker that they have re- the Working Document to fifty percent of the signed from or been expelled by their party. Un- membership of each House owing to the removal der the existing Constitution, this would cause the of the person presiding from the reckoning of the Government to fall. Under the Working Document, size of the quorum. the President and the Cabinet will not lose office, but would not be able to count on a majority of The President is required only to assent to Bills sympathetic M.P.s for support and this will create passed by Parliament as the veto power held by the need for consensus government for measures the President in the existing Constitution has been

47 CHANGING OUR CONSTITUTION abolished by the Working Document. A maximum Parliament remain comparable to the existing period of fifty-four days can elapse between pas- Constitution. sage of a Bill by Parliament and its compulsory assent by the President. Elections and Boundaries Commission Ministers will continue to have a right of audi- ence in either of the Houses of Parliament as pro- The provisions in the Working Document with vided in the existing Constitution. However, with regard to the Elections and Boundaries Commis- only four out of forty-one M.P.s being Ministers sion are comparable to the existing Constitution in the House of Representatives and four out of in language, but not effect. The President is no thirty-seven Senators being Ministers, the Work- longer an impartial arbiter, but rather an elected ing Document makes provision for the President member of the House of Representatives (in the of the Senate or the Speaker to require Ministers first instance) and the Chairman of the Elections to appear before either House, as the case may be, and Boundaries Commission has a new role in to report on their performance as Ministers. respect of the appointment of the President.

In the Working Document, the House of Repre- At the same time, the Commission is given the sentatives continues to be dominant over the Sen- power to adjudicate on all election matters and ate in respect of the passage of Money Bills and together with this has been made the subject of other Bills as is expressed in the existing Consti- judicial review in clause 93 of the Working Docu- tution. ment.

Certain Joint Select Committees The System of Balloting

The Departmental Joint Select Committees that The first-past-the-post system of balloting for the were created in 1999 by way of constitutional House of Representatives in the existing Consti- amendment in the existing Constitution at section tution is retained in the Working Document. 66A are expanded in the Working Document at clause 84 to also include scrutiny of Government Chapter Five – Executive Powers Departments and Local Government bodies, For- eign Affairs, Energy and Public Accounts over and Chapter Five of the Working Document represents above what prevails in the existing Constitution. another fundamental area of change from the ex- isting Constitution. The office of Prime Minister These Joint Select Committees are also empow- is abolished and the executive authority of Trinidad ered in the Working Document to examine the and Tobago is vested in the President and the Presi- annual reports of these bodies to determine when dent is now made a part of the Cabinet. The prin- they were submitted and to question the relevant ciple of collective responsibility of the Cabinet to persons about their contents and seek explanations Parliament is retained, while the essential officers for any delays in submission. in the Cabinet that constitute a Cabinet are ex- panded from just the Prime Minister, the Attorney Summoning Prorogation General and another Minister in the existing Con- and Dissolution stitution to the President, the Vice-President, the Attorney General, the two Majority Leaders from The provisions in the Working Document both Houses of Parliament and at least one other on summoning, prorogation and dissolution of

48 CHANGING OUR CONSTITUTION

Minister. The outer size of the Cabinet is capped Provision is made in the Working Document for at twenty-five Ministers. the Speaker of the House of Representatives to appoint a Minority Leader in the House of Repre- The Working Document provides, at clause 97, sentatives after an election is held among those that the Ministers will largely be drawn from out- members of the House who do not support the side of Parliament as only four Ministers can be Government and one of those members wins the appointed from the members of the House of Rep- greatest number of votes cast. This provision is resentatives and four Ministers can be appointed based upon a pre-existing parliamentary premise from the Senate. The qualifications to be appointed where the majority in the House of Representa- as Ministers are those of persons who are quali- tives and the Government were one and the same. fied to be elected to the House of Representatives. In the provisions outlined in the Working Docu- ment, it is possible for a majority of members in In the allocation of portfolios to Ministers, the the House of Representatives to be opposed to the Working Document, at clause 99(2), prescribes Government and the Government will not be in that a member of the Senate or of the House of jeopardy of falling. Representatives shall be appointed Minister of Justice and that the responsibility of that portfolio Permanent Secretaries shall include such administrative matters relating to the Judiciary as may be prescribed. The Working Document introduces the concept of the appointment of Permanent Secretaries on The Working Document retains the provisions of contract by the Public Service Commission sub- the existing Constitution that the President shall ject to the concurrence of the President at clause act on the advice of the Cabinet or a Minister act- 105. This is a departure from the existing Consti- ing under the general authority of the Cabinet. The tution which confines the choices for the appoint- Working Document also retains the exceptions to ment of Permanent Secretaries to the public ser- these provisions, namely (i) in his / her discre- vice alone. These new provisions permit the ap- tion, (ii) after consultation with any person or au- pointment of permanent secretaries from either the thority other than the Cabinet, and (iii) on the ad- public or private sectors on contract. vice of any person or authority other than the Cabi- net. The Power of Pardon

The effect of this is that the President will take The power of pardon in the Working Document instructions from Ministers, except where other- remains comparable to the existing Constitution wise provided. except for the Minister designated for pardons appointed on the advice of the Prime Minister The Working Document requires the President to being replaced by the President himself / herself. keep Parliament fully informed concerning the Additionally, the Attorney General is proposed as general conduct of the Government and he / she the new Chairman of the Advisory Committee on shall do so at least once per year by way of an the Power of Pardon thereby replacing the Minis- address to a joint sitting of Parliament. ter designated for pardons who was previously appointed on the advice of the Prime Minister. The Working Document provides that the Presi- dent shall appoint Majority Leaders in the House of Representatives and the Senate in his / her own discretion.

49 CHANGING OUR CONSTITUTION

Chapter Six respect of complaints made by public officers The Director of Public which can be reviewed and the Ombudsman may Prosecutions and the Ombudsman also investigate any inaction therefrom.

The relationship between the Attorney General and Another proposed reform is that special reports the Director of Public Prosecutions is not clearly by the Ombudsman shall be presented before a spelt out in the existing Constitution in respect of Joint Select Committee of Parliament and that the extent to which the Director of Public Pros- Committee shall consider the report and recom- ecutions falls under the ministerial responsibility mend to Parliament the urgent consideration of of the Attorney General insofar as direction and the matters in the report and the steps it should control are concerned. take to address the issues set out in the report.

Clause 110 of the Working Document attempts to Permanent Secretaries will be required to provide clarify this ambiguity by specifying that the Di- the Ombudsman with reasons for any omission or rector of Public Prosecutions shall exercise his / decision that gave rise to a complaint and the Per- her powers and discharge his / her functions in manent Secretary shall forward the reasons to the matters involving official secrets, terrorism and Ombudsman within twenty-one days of receiving State-to-State relations with the prior approval of the request. the Attorney General. In respect of criminal pro- ceedings, the Director of Public Prosecutions shall It is further proposed in the Working Document act in his / her discretion. that the Ombudsman be permitted to examine Cabinet documents, or confidential income tax To this end, the Working Document requires the documents in relation to any complaint and that Director of Public Prosecutions to submit to the such an examination shall take place where those Attorney General, before 31st August each year, documents are held. an annual report on the administration of his / her office, the exercise of his / her powers and the Chapter Seven – The Judicature discharge of his / her functions and the Attorney General shall cause the report to be laid before Chapter Seven of the Working Document repre- each House of Parliament within sixty days. sents another area of fundamental change insofar as a separation between the judicial and adminis- The Working Document changes the method of trative functions of the Chief Justice is proposed. appointment of the Ombudsman from what ob- It appears that the model for this has been drawn tains in the existing Constitution by requiring the from the recent reforms (that had been agreed since President to consult the Minority Leader, the 2005) in the United Kingdom under their Consti- Speaker of the House of Representatives and the tution Reform Act 2005 which fundamentally al- President of the Senate before making the appoint- tered the office of Lord Chancellor and led to the ment. creation of a Ministry of Justice in May 2007 headed by the Secretary of State for Justice and Provision is made in the Working Document for the assumption of office of a Supreme Court in the Ombudsman to hire staff other than public October 2009 headed by the Lord Chief Justice. officers for the performance of the duties of the The Working Document proposes a change from office which is a change from the existing Consti- the existing Constitution whereby the Chief Jus- tution. Other changes from the existing Constitu- tice would now be required to submit an annual tion include decisions of Service Commissions in report to the President on 1st August every year on

50 CHANGING OUR CONSTITUTION the judicial functioning of the Judiciary. The Ju- consult the Chief Justice. dicial and Legal Service Commission will still be required to report to Parliament in the manner pre- The Working Document proposes the abolition of scribed in the existing Constitution, however, the appeals to the Judicial Committee of the Privy Chief Justice will no longer be the chairman of Council and replaces that with the Caribbean Court that Commission. of Justice as the final court of appeal for Trinidad and Tobago. The Working Document also creates the office of Permanent Secretary to the Judiciary which is pro- The composition of the Judicial and Legal Ser- posed to be appointed by the Public Service Com- vice Commission is proposed to be changed to mission after consultation with the Chief Justice exclude the Chief Justice and to include at least and with the concurrence of the President. The two and not more than three lay members among intention is for this Permanent Secretary to act as its seven members. All of these appointments will the public functionary between the Government be subject to a negative resolution of the House of and the Judiciary and shall report to the Minister Representatives of the Notification issued by the of Justice. President before the appointments can be made.

The Working Document seeks to empower Par- The procedure for the removal of the Chief Jus- liament to confer on any court any part of the ju- tice is comparable with the existing Constitution risdiction of the High Court and any of the pow- except for the requirement that the President must ers of the High Court under the Constitution or consult the Minority Leader and the President of any other law. It is also proposed to confer on the the Law Association before appointing a tribunal Chief Justice the power to designate any Puisne to investigate the Chief Justice. In respect of Judge as a Justice of Appeal and vice versa. Judges other than the Chief Justice, the President will act in accordance with the representation made The Working Document changes the method of to him / her by the Judicial and Legal Service appointment of the Chief Justice to include a re- Commission. The tribunal for investigating the quirement for the President to consult the Minor- Chief Justice will consist of a chairman and not ity Leader and the President of the Law Associa- less than two other members appointed by the tion before making a nomination to the office and President after consultation with the Minority issuing a Notification which shall be subject to Leader and the President of the Law Association, the negative resolution of the House of Represen- while the tribunal investigating judges other than tatives and the President will be required to wait the Chief Justice will consist of a chairman and on the vote in the House of Representatives be- not less than two other members appointed by the fore making the appointment. President after consultation with the Judicial and Legal Service Commission. The Chief Justice will no longer serve as the Chair- man of the Judicial and Legal Service Commis- The suspension of the Chief Justice or of a judge sion, however, he / she will be responsible for the other than the Chief Justice may be effected by general business and administration of the Su- the President after consultation with the Minority preme Court, while subject to that, the Minister Leader and the President of the Law Association of Justice will have control of administrative mat- (for the Chief Justice) and after consultation with ters relating to the Judiciary and, in the exercise the Chief Justice in the case of the other judges. of those powers, the Minister of Justice shall first

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Such suspensions may be revoked by the Presi- Chapter Nine dent after consultation with the Minority Leader Appointments to, and the President of the Law Association (in the and Tenure of Offices case of the Chief Justice) and after consultation with the Chief Justice (in the case of other judges) before the tribunals have reported. Service Commissions

Chapter Eight – Finance The Working Document proposes changes to the Public Service Commission by altering its mem- The provisions of Chapter Eight of the Working bership from the existing Constitution to include Document on Finance are comparable with the a Chairman, a Deputy Chairman, the Head of the existing Constitution except for the method of Public Service as an ex officio member and four appointment of the Auditor General and the chair- other members. The members (other than the ex men of the Public Accounts Committee and Pub- officio member) will be appointed by the Presi- lic Accounts (Enterprises) Committee. dent after consultation with the Minority Leader and their nominations made subject to negative The Auditor General shall be nominated by the resolution of the House of Representatives. The President after consultation with the Minority members would include a retired judge, an attor- Leader and a Notification shall be issued by the ney-at-law with ten years standing, a retired se- President which shall be subject to the negative nior public officer, and a person qualified and ex- resolution of the House of Representatives. The perienced in human resource management. President will only make the appointment if the Notification has not been annulled by the House The Working Document transfers the powers of of Representatives. Service Commissions under the existing Consti- tution to Permanent Secretaries to make appoint- The chairman of the Public Accounts Committee ments on promotion of, to confirm appointments shall be chosen from among the members of the of, to transfer, to exercise disciplinary control over, House of Representatives who do not support the to enforce standards of conduct on, and to remove, Government, if any and if willing to serve. Where persons from offices in their Ministries that do not no such member is willing to serve, then a Sena- have similar offices in other Ministries. Otherwise, tor who does not support the Government will be the powers retained by the Public Service Com- appointed as chairman. If such a Senator is un- mission in relation to offices that exist in another willing to serve, then a Senator will be appointed Ministry will include the power to make appoint- chairman. ments on promotion, to transfer and to remove such persons from such offices. In these cases of The chairman of the Public Accounts (Enterprises) similar offices in other Ministries, the Permanent Committee shall be chosen from among the Sena- Secretaries will have the power to exercise disci- tors who do not support the Government. Where plinary control over, enforce standards of conduct there is no such Senator, then a member of the on, and confirm appointments of persons ap- House of Representatives who does not support pointed to such offices by the Public Service Com- the Government can be appointed and if no such mission. member is willing to serve, then a Senator will be appointed chairman. A permanent Secretary cannot remove or inflict any punishment on a public officer for any act done or omitted to be done in the exercise of a judicial

52 CHANGING OUR CONSTITUTION function unless the Judicial and Legal Service shall have the power to appoint persons to hold or Commission concurs. act in public offices in the Teaching Service es- tablished under the Education Act. The Education The concurrence of the President is required for Human Resource Agency will also have the power any appointment to the offices of Chief Technical to make appointments on promotion, confirm ap- Officer, Chief Professional Adviser and the deputy pointments, transfer persons, remove persons, to these offices in any Ministry of Government. exercise disciplinary control, and enforce stan- dards of conduct in respect of these offices. The The President shall have the power to make ap- decisions of the Education Human Resource pointments or to transfer any office holder for the Agency can be appealed to the Teaching Service proper discharge of their functions outside of Commission. Trinidad and Tobago. The President shall also be able to make appointments to such offices in the Appeals Ministry of Foreign Affairs or to transfer persons to such offices as the President may designate. The Working Document reconfigures the appel- late process in the public service as follows : The provisions relating to the Police Service Com- mission remain comparable to the existing Con- (a) an appeal to the Public Service Appeal Board stitution save for the change in clause 162(4) in disciplinary matters from the Public Ser- whereby the President shall issue a Notification vice Commission; subject to negative resolution of the House of Representatives in respect of his / her nominees (b) an appeal from the decision of a Permanent for the Police Service Commission made after Secretary to the Public Service Commission. consultation with the Minority Leader. The Public Service Appeal Board is proposed to The Teaching Service Commission is revised in consist of a Chairman who shall be a retired judge the Working Document to include a Chairman, a or an attorney-at-law of ten years standing ap- Deputy Chairman, the Permanent Secretary of the pointed by the President after consultation with Ministry responsible for education as an ex offi- the Chief Justice and four other members ap- cio member and four other members. The Presi- pointed by the President after consultation with dent will nominate the members (other than the the Minority Leader and the President of the Law ex officio member) after consultation with the Association. Minority Leader. The members would include a retired judge, an attorney-at-law with ten years Where a public officer is aggrieved by a decision standing, a retired senior public officer, a person of a Service Commission, that officer may file an qualified and experienced in human resource man- appeal to the Public Service Appeal Board. agement and a person qualified and experienced in education. The President will issue a Notifica- General Provisions on tion in respect of these nominations which shall Service Commissions be subject to negative resolution of the House of Representatives before any appointment can be An additional disqualification has been added to made. the existing provisions of the Constitution for the creation of a vacancy in a Service Commission, The Working Document proposes the creation of namely where a member becomes an elected or an Education Human Resource Agency which nominated member of a Local Government body.

53 CHANGING OUR CONSTITUTION

comparable to the existing Constitution except for The grounds of removal of a member of a Service the appointment of the Chairman and the four other Commission by the President have been expanded members who shall be appointed by the President by the Working Document over the existing Con- after consultation with the Minority Leader. stitution to include failure to attend four consecu- tive meetings without reasonable cause, convicted Chapter Twelve of a criminal offence by a court punishable by a The Tobago House of Assembly sentence of six or more months or without a fine, fails to perform duties in a responsible or timely The provisions in the Working Document in rela- manner, fails to recuse himself / herself from meet- tion to the Tobago House of Assembly remain ings where there is a conflict of interest, or dem- comparable to the existing Constitution. onstrates a lack of competence to perform duties. In arriving at conclusions on these grounds, the Chapter Thirteen President may consider the annual reports of Ser- vice Commissions laid in Parliament. Local Government

Special Offices The Working Document makes provision for Lo- cal Government in the Constitution which did not previously exist. Twelve local government bodies The tenure of special offices has been altered by are proposed and their boundaries shall be fixed the Working Document to include a wider set of in consultation with the Elections and Boundaries grounds for vacating such offices such as becom- Commission. ing a Minister, Senator, nominated for election to the House of Representatives or the Tobago House of Assembly or becoming an elected or nominated Chapter Fourteen member of a Local Government body. General Provisions

Chapter Ten The provisions in the Working Document in rela- The Integrity Commission tion to the General Provisions remain comparable to the existing Constitution in respect of the pro- visions on resignation and re-appointment. The provisions in the Working Document in rela- tion to the Integrity Commission remain compa- rable to the existing Constitution except for the Chapter Fifteen – Regional narrowing of the scope of those required to file Integration declarations of their assets and liabilities, namely Ministers, Members of Parliament and the mem- Provision is made in the Working Document for bers and holders of such public offices as may be the pursuit of regional integration, but only if Par- prescribed. liament expressly enacts such a measure.

Chapter Eleven – The Salaries Review Commission

The provisions in the Working Document in rela- tion to the Salaries Review Commission remain

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