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Constitutional reform rationale

Monday, December 6, 2010
Dr Hamid Ghany

The case for changing the Constitution of Trinidad and Tobago can only be considered in the context of whether the evolutionary process from the Crown Colony system, that was introduced after the capture of Trinidad by Britain from Spain in 1797, and the imposition of the Crown Colony system in Tobago, after its union with Trinidad by the British Government in 1889, has arrived at a stage where there is debate about whether or not the next step is to proceed further along the continuum between parliamentarism and presidentialism.

  • n The path to the Westminster-Whitehall model that was adopted at independence in 1962 followed a predictable line from nominated membership in the Legislative Council with domination by the Governor to the introduction of Cabinet Government and a bicameral Parliament in 1959 and 1961 respectively. Notable steps along the way included the introduction of the New Representative System in 1924 with a minority of elected members in the Legislative Council and a majority of nominated members therein. These reforms had been inspired by the Report of Major EFL Wood, Parliamentary Under-Secretary of State for the Colonies who toured the British West Indies in 1921-22.
  • Following the visit to the British West Indies by the Moyne Commission in 1938-39, further changes were made with the introduction of universal adult suffrage in 1946 and a new Constitution in 1950. This Constitution introduced the office of Speaker of the Legislative Council and increased the number of elected members. Further changes in the direction of representative and responsible government were made in 1956, 1959 and 1961 that laid the platform for the independence constitution of 1962.
  • That constitution was deemed ready for reform soon after it came into being and by 1969 the Government had already taken steps, in the form of a Joint Select Committee of Parliament, to change the constitution. This was interrupted by the Black Power uprising in 1970. Constitutional reform became a top priority for the Government as a response to the events of 1970 and in November 1970, the PNM approved a revised core party document, namely the Chaguaramas Declaration.
  • By 1971, the PNM won all of the seats in the House of Representatives in the general election and Dr Williams moved swiftly to address the perceived defects in the Constitution by the announcement of a Constitution Commission under the chairmanship of Sir Hugh Wooding. The report of the Wooding Commission was largely accepted by the Government with the exception of the recommendations for (i) the introduction of a mixed plurality-proportionality electoral system; (ii) the abolition of the Senate; (iii) the inclusion of local government bodies together with the Parliament for the election of the President; and (iv) the abolition of appeals to the Judicial Committee of the Privy Council.
  • The 1976 Constitution that was introduced represented the first step away from the Westminster-Whitehall model toward a presidentialist pathway with the introduction of a hybrid presidency to replace the monarch and a reduction of the prime ministerial power of appointment in favour of the new presidency. The lacuna in this constitutional arrangement is the failure to transfer the ministerial responsibility of the Prime Minister to the President. To this end, the presidency of Trinidad and Tobago operates on the basis of power without responsibility.
  • This lacuna is widened by the fact that the presidency has been simultaneously accorded immunities from prosecution for the performance of the functions of the office and the ouster of the jurisdiction of the courts in respect of the functions of the president performed on advice or after consultation. The introduction of impeachment procedures for misbehaviour in office resembles the United States Constitution, but raises the bar for removal higher than that Constitution itself by requiring a two-thirds majority of the House of Representatives and Senate combined to remove the President from office.
  • It is this lacuna that has caused the most challenges and controversies with regard to the functioning of the presidency since its inception. The PP Government has indicated that it intends to address the issue of the powers of the PM by introducing term limits for that office and also introducing fixed dates for elections. The problem that arises here is that the hybrid presidency that was created in 1976 would remain untouched when, in fact, there should be an analysis of the powers of this office as opposed to the office of the PM alone.
  • n The last UNC administration learnt the hard way about the powers of the President at the hands of ANR Robinson with resistance against acting on ministerial advice in respect of the appointment of Senators and the revocation of senatorial appointments, problems with the appointment of the PM, etc.
  • n The People’s Partnership Government is still in settling down mode and it is possible that their own experiences may temper their zeal to advance certain constitutional reforms. For some reason, term limits, fixed election dates and the right of recall have gone on to the back burner. For the time being, the parliamentary system is being retained with a desire to insert some presidential techniques that seem to diminish prime ministerial powers.


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