Understanding Our Constitutional Foundations

STABILITY UNDERSTANDING OUR CONSTITUTIONAL FOUNDATIONS IN A SOCIETY AND REGION STEEPED IN BRITISH TRADITIONS t a public meeting on 19th July 1955 Government had not abolished slavery and in Woodford Square, Port of Spain, the slave trade for humanitarian reasons, but Trinidad, before he had entered rather for economic reasons because the sugar Aelectoral politics, Dr Eric Williams industry was no longer economically profitable said: “The Colonial Office does not need to in this region for them. examine its second hand colonial constitutions. According to him: “…the issues were not only It has a constitution at hand which it can apply the inhumanity of West Indian slavery, but the immediately to Trinidad and Tobago. That is the unprofitableness of West Indian monopoly.” British Constitution. Ladies and Gentlemen, I (Eric Williams, Capitalism and Slavery, London, suggest to you that the time has come when the Andre Deutsch, 1964, p188 – originally published British Constitution, suitably modified, can be by the University of North Carolina Press, 1944). DR HAMID GHANY applied to Trinidad and Tobago. After all, if the The humanitarian argument had provided a Senior Lecturer British Constitution is good enough for Great view that British imperial policy could have been and Former Dean, Britain, it should be good enough for Trinidad swayed by moral and humanitarian appeals to put Faculty of Social Sciences, and Tobago.” (Eric Williams, Constitution an end to inequality, injustice and exploitation UWI, St Augustine Reform in Trinidad and Tobago, Public Affairs that were the hallmarks of the colonial state. As Campus, Trinidad Pamphlet No. 2, Teachers’ Educational and a consequence, continued British oversight in the Cultural Association, Trinidad, 1955, p30). West Indies could therefore be trusted because The views of Williams as expressed here of its genuine concern for the upliftment of the openly contradict the intellectual line of West Indian person. argument that he developed in his famous work Williams’ argument challenged all of that. Her Majesty The Queen Capitalism and Slavery in which he challenged However, his view of the British system of shakes hands with Prime the very foundations upon which the philosophy government can be seen as a contradiction of his Minister Dr Eric Williams, of British trusteeship in the West Indies had views on British oversight and its end product February, 1966 been built. His central thesis was that the British which was fully responsible status, otherwise known as independence, with constitutional arrangements that reflected a “suitably modified” version of the British Constitution. What we must understand here is that Williams’ advocacy of the British Constitution in a suitably modified format was his way of saying that the British constitutional formula was one that we could adopt as our own because we did not have an indigenous system of government. Indeed, his entire stewardship as Chief Minister, Premier and Prime Minister of Trinidad and Tobago represented a defence of the British Constitution suitably modified and when the greatest opportunity of all presented itself for constitution reform in 1971 when his People’s National Movement (PNM) won all of the seats in the general election, he adopted Photograph courtesy of Paria Archive the approach of engaging in a further suitable 60 TRINIDAD & TOBAGO 50 YEARS OF INDEPENDENCE P60-65 Hamid Ghany Constitutional.indd 60 24/08/2012 14:13 STABILITY modification of the existing constitution which Whitehall model of governance and any alteration Are we was already a suitably modified version of the may only get as far as the creation of a hybrid by British Constitution. importing features that are genuinely alien to reforming Williams’ manner of thinking can be our heritage of the British Constitution suitably constitutions contrasted with his colleague Premier in Jamaica, modified or our evolved colonial institutions that Norman Manley, who had this to say in the are supposedly part of our heritage? that have Jamaican House of Representatives in January In a folio entry dated 2nd March 1962 for Mr been imported 1962: “Let us not make the mistake of describing J.A. Peck, Assistant Legal Adviser at the Colonial as colonial, institutions which are part and parcel Office in the now-declassified Colonial Office into our of the heritage of this country. If we have any file CO1031/3226 from Mr J.E. Whitelegg at the societies or confidence in our own individuality and our own West Indian Department, the following is noted: personality we would absorb these things and “Mr Peck, Mr Ellis Clarke telephoned me that constitutions incorporate them into our being and turn them the sources of the draft Trinidad Constitution that are to our own use as part of the heritage we are not are as follows:- ashamed of.” (Norman Manley, Proceedings of the • Citizenship – Sierra Leone with the proviso to indigenous to Jamaican House of Representatives 1961-62, 24th Article 1(1) omitted and an entirely new Article 2(1). our societies? January, 1962, p766). • Human Rights – Sierra Leone except the Norman Manley was not speaking about Property Article. For Williams, importing the British constitution and converting • Governor General – Sierra Leone. if it was good it into local usage in the way that Williams had • Parliament – present Trinidad provisions modified. advocated, but rather he was urging that the existing • Judicature – new form. enough for institutions of the colonial era, that evolved as part • Appeals to HM in Council – new form. Great Britain, of Jamaica’s development, should not be regarded • Judicial and Legal Service Commission – as colonial, but rather as indigenous. These based on Sierra Leone. it would be institutions were installed as part of the colonial • Finance – common form provisions with good enough evolution. Yet, Norman Manley was describing it modifications. as a “mistake” to regard these institutions as being • Public Service Commission – new form. for T&T. For “colonial”. He preferred to bless them as being part • Police Service Commission – largely new form Manley, it was of the “heritage” of Jamaica. but Nigeria provided the basis. The primary reason for the juxtaposition of • Pension and miscellaneous provisions – not colonial, these two views as expressed by two leaders common form modified.” but rather part who were part of the independence movement At the time when this was written, Ellis some 50 years ago will help us to understand Clarke was on a visit to London in his capacity of the heritage the difficulties being experienced today with the as Constitutional Adviser to the Cabinet of of Jamaica prospect of constitutional reform. Trinidad and Tobago. The draft constitution Are we reforming constitutions that have been for public comment had just been published imported into our societies or constitutions that in Trinidad and Tobago on 19th February, are indigenous to our societies? For Williams, the 1962. What we get here are the sources that argument was that if it was good enough for Great Ellis Clarke used in drafting the constitution Britain, it would be good enough for Trinidad for public comment. The only originality in the and Tobago. For Manley, it was not colonial, but document appears to have arisen in the sections rather part of the heritage of Jamaica. on the Judicature, Appeals to Her Majesty in Is it that we are wedded to the Westminster- Council and the Public Service Commission. TRINIDAD & TOBAGO 50 YEARS OF INDEPENDENCE 61 P60-65 Hamid Ghany Constitutional.indd 61 24/08/2012 14:13 STABILITY These In establishing the Judiciary for Trinidad Tobago.” (United Kingdom National Archives, and Tobago in the independence constitution, CO 1031/3226, Explanatory Memorandum by provisions Ellis Clarke, expressed the following views the Constitutional Adviser to the Cabinet on the were barely in a declassified confidential explanatory Draft Independence Constitution for Trinidad memorandum to the Colonial Office: “Provision and Tobago, 16th April, 1962, p9.) modified in is made in section 8 of the draft Order in Council In providing the insight into the creation of the the 1976 for the Supreme Court as constituted at present post of Chief Justice at independence, Ellis Clarke to continue under the name of the High Court. outlined the intent of the draftsman as follows: republican The Judges of the Supreme Court become the “It will be observed that in fact the position of Constitution, Judges of the High Court and suffer no loss of the Chief Justice and President of the Court of status, emoluments, allowances or else. Appeal is more analogous to that of the Lord but the intent It will be noted that no provision is made Chancellor in England than to that of the Lord remains the for the holder of the post of Chief Justice of Chief Justice. The Lord Chancellor presides over the Supreme Court. The reason for this is that the House of Lords, the highest court in England, same with the there will be no exactly comparable post on the ultimate court of appeal. He is also responsible new office of independence. The new post of Chief Justice for all judicial appointments, for the conferment in the draft Constitution is a joint post of Chief of silk, etc. The Chief Justice and President of Chief Justice Justice and President of the Court of Appeal. In the Court of Appeal will preside over the final that was his capacity as Chief Justice the holder of that Court of Appeal in Trinidad and Tobago and post is responsible for the administration

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