CHANGING OUR CONSTITUTIONconstitutionnet.org/sites/default/files/changing-our-constitution.pdf · CHANGING OUR CONSTITUTION A Comparison of the Existing Constitution of Trinidad and

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

CHANGING OUR CONSTITUTIONA Comparison of the Existing Constitution of Trinidad and Tobago and the

Working Document on Constitutional Reform for Public Consultation

CHANGING OUR CONSTITUTION

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

By: Dr. Hamid GhanyDean, 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

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TABLE OF CONTENTS

Introduction ........................................................................................................................................... 4

(i) Eric Williams and the Introduction of a Nominated Senate ............................................................ 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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The island of Trinidad was claimed by Christo-pher Columbus in 1498 on behalf of Spain. Theisland was a Spanish colony until its capture byBritain from Spain during the French and Napo-leonic Wars in 1797. Formal cession of Trinidadby Spain to Great Britain was effected by the Treatyof Amiens in 1802. 1

Columbus sighted Tobago in 1498 however theisland remained unoccupied by any imperial poweruntil 1632 when some Dutch colonists tried tosettle the island but were forced out byAmerindians and Spaniards in 1634.

Two proprietary grants were made by King CharlesI for British settlers in respect of Tobago. The firstwas made to the Earl of Pembroke in 1628 and,the second, was made to the Duke of Courland(the Dukedom of Courland was a coastal districtof what is today Latvia and was under British pro-tection) in 1642.

A number of Courlanders settled in the north ofthe island, while a colony of Dutch settlers estab-lished themselves in the south of the island. TheCourlanders were eventually overpowered by theDutch settlers and they remained in possession ofTobago until surrendering their rights to the is-land in 1662.

In 1664, King Charles II renewed the grant ofCharles I that had been made to the Duke ofCourland in exchange for the Duke’s surrender ofhis African interests in the River Gambia area toCharles II. In 1681, the Duke of Courland trans-ferred his title to a company of London merchants.

During the American War of Independence, Francecaptured Tobago in 1781 and the formal cessionof the island to France was effected by the Treaty

of Paris of 1783. The British captured the islandin 1793 during the French and Napoleonic Wars,but it was restored to France by the Treaty ofAmiens in 1802. However, it was recaptured byBritain in 1803 and was formally ceded to Britainby the Treaty of Paris in 1814. 2

As a consequence of the Trinidad and Tobago Act1887 3 of the British Parliament, the two colonieswere joined as one under the authority of an Or-der-in-Council made on 17th November, 1888 4 thatcame into effect on 1st January, 1889.

This Order-in-Council also made provision for theabolition of the Legislative Council of Tobago. Theunification of these two British colonies, withcompletely different historical backgrounds, cre-ated the need for the British Government to es-tablish a single legislature for the twin-islandcolony and also to ensure the continued operationof all laws in force in Trinidad and all laws in forcein Tobago.

This was effected by way of an Order-in-Councilmade on 20th October,1898 5 that came into forceon 1st January, 1899. This Order-in-Council madeTobago a ward of the colony of Trinidad and To-bago. It further provided that all laws that were inforce in Trinidad on 1st January, 1899 would alsoextend to Tobago and that all laws that were inforce in Tobago, at that date, that differed fromthe laws of Trinidad ceased to be in force. TheLegislature in Trinidad became the Legislature forthe twin-island colony and all future laws enactedby that legislature would be deemed to extend toTobago. 6

In this way, the British Government made a po-litical and legal decision that would have ramifi-cations for the twin-island colony long after its

Introduction

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unification by imperial law. The political, psycho-logical and legal effect of the decisions expressedin the 1899 Order-in-Council continue to mani-fest themselves in the post-independence era ofthe twin-island state of Trinidad and Tobago.

In 1924, the first major reform towards the intro-duction of elected representation into the Legisla-tive Council of Trinidad and Tobago was madeunder the authority of the Trinidad and Tobago(Legislative Council) Order in Council 1924 7

which was subsequently amended in 1928, 1941,1942 and 1945 before being revoked and replacedby a new Order-in-Council that provided for a newConstitution for the colony in 1950. 8

In 1924, the Legislative Council consisted of theGovernor (who also presided over its sittings),twelve official members and thirteen unofficialmembers (of whom six were nominated and sevenwere elected). In 1941, the number of electedmembers was increased to nine and the numberof official members stood at three. 9

For the 1956 general elections, the LegislativeCouncil consisted of twenty-four elected members,five nominated members and two official mem-bers. In 1961, a bicameral legislature was intro-duced which consisted of twenty-one nominatedSenators in a Senate and thirty elected M.P.s in aHouse of Representatives. At independence in1962, the Senate was increased to twenty-four andin 1966 the House of Representatives was in-creased to thirty-six M.P.s.

In 1976, Trinidad and Tobago became a republicwithin the Commonwealth and a President re-placed Her Majesty Queen Elizabeth II as Headof State, while the Prime Minister remained asHead of Government in a parliamentary systemof government. It retained its bicameral systemwith a House of Representatives of thirty-six M.P.sand an enlarged Senate of thirty-one Senators. In2007, the number of seats contested for the Houseof Representatives was increased to forty-one.

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Eric Williams and the Introductionof a Nominated Senate

The advent of the People’s National Movement(P.N.M.) led by Dr. Eric Williams, who becamethe Chief Minister following the 1956 general elec-tions, changed the political landscape of Trinidadand Tobago in relation to the structure of the Leg-islature. One year before Williams became ChiefMinister, he embarked on a lecture series through-out Trinidad and Tobago in which he publicly pro-claimed his preference for a bicameral system.

Once in office, he opened negotiations with theColonial Office to bring about such a change andafter five years of political dialogue, both locallyand with the Colonial Office, Trinidad and Tobagohad its legislature changed from a unicameral to abicameral system with an elected House of Rep-resentatives and a nominated Senate.

In 1961 Trinidad and Tobago was granted a Con-stitution that conferred full internal self-govern-ment on the Colony. 10 General elections were heldin December 1961. The actual provisions in theConstitution mirrored exactly those that had beenagreed since 1959 between the Government andthe Colonial Office and read as follows :

“15. (1) The Senate shall consist of twenty-onemembers (in this Constitution referredto as “Senators” who shall be ap-pointed by the Governor by instru-ment under the Public Seal in accor-dance with this article.

(2) Of the twenty-one Senators-(a) twelve shall be appointed by the Gov-

ernor acting in accordance with theadvice of the Premier;(b) two shall be appointed by the Gov-ernor acting in accordance with the

advice of the leader of the Opposi-tion; and

(c) seven shall be appointed, to representreligious, economic or social interestsin the Territory, by the Governor, act-ing after consultation with such per-sons as, in his discretion, he consid-ers can speak for those interests andought to be consulted.” 11

In 1962, Trinidad and Tobago attained fully re-sponsible status within the Commonwealth andthis bicameral system was, in general, retainedwith some modifications to the numbers of Sena-tors with the number appointed on the advice ofthe Prime Minister being set at thirteen (13) andthe number appointed on the advice of the Leaderof the Opposition being set at four (4). The sevenSenators who were previously appointed by theGovernor in his discretion were, at independence,to be appointed by the Governor-General on theadvice of the Prime Minister after the Prime Min-ister had consulted those religious, economic orsocial bodies or associations from which the PrimeMinister considered that such Senators shouldhave been selected. 12

Since 1976, the Senate has consisted of sixteenSenators appointed by the President on the adviceof the Prime Minister, six Senators appointed bythe President on the advice of the Leader of theOpposition and nine Senators appointed by thePresident in his discretion from outstanding per-sons from economic or social or community or-ganizations and other major fields of endeavour(this latter category is commonly known as inde-pendent Senators).

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The office of Speaker was first created for theLegislative Council of Trinidad and Tobago in1950. The Speaker was to be nominated by theGovernor in his own discretion. This did not re-semble standard House of Commons practice atthe time whereby the Speaker was an elected mem-ber of the House.

The creation of the office of Speaker in Trinidadand Tobago in 1950 was part of a wider collectionof constitutional reforms that were introduced inthe colony by the British Government. In his des-patch to the Governor, the Secretary of State forthe Colonies, Arthur Creech Jones, had this to sayabout the intentions of the British Government :

“I agree that the stage has been reached whenthe people of Trinidad and Tobago must be en-abled to assume greater responsibility for the con-trol of their own affairs. As I stated in my openingspeech at the Conference on Closer Associationheld at Montego Bay in 1947, it is one of the tasksof His Majesty’s Government to see that such re-sponsibility is passed increasingly from Londonto the peoples of the territories themselves, and Iam anxious, whenever possible, to increase themeasure of responsibility for government borneby Colonial Legislatures.” 13

It was in the spirit of advancing the developmentof representative and responsible government inTrinidad and Tobago, as part of a wider policy ofthe British Government in the British West Indies,that the office of Speaker of the Legislative Coun-cil was created in 1950.

Clearly the introduction of a Speaker in the Leg-islative Council was a major reform issue andwhether he should be an elected member or an

appointed member appeared to be the key issue indeciding upon the introduction of the office, moreso than the fact that the Governor would cease topreside in the Legislative Council.

However, it should be noted that the appointmentof a retired judge as the first Speaker of the Legis-lative Council of Trinidad and Tobago, as opposedto someone experienced in the affairs of the Leg-islative Council, reflected a desire to ensure theimpartiality of the office in the eyes of the legisla-tors and the society.

The question of an elected or a nominated Speakerwas the key issue to be determined for future re-forms.14 Unlike the British system of governmentwith its long history of political evolution and theemergence of traditions over time, many of thelegislatures in the former colonies of Great Brit-ain did not have adequately settled traditions thatcan be described as being akin to the Westminstermodel.

Political institutions may be copied, but there isno guarantee of assimilation into the local politi-cal culture. The problem in respect of Trinidad andTobago was indicative of the need to try and pre-serve impartiality, but what became the deeper is-sue was the continuation in office of someone whowas a good Speaker.

The basic position of the British Government onthis issue was apparently formulated at a meetingbetween Colonial Office civil servants and the thenGovernor of Trinidad and Tobago, Sir EdwardBeetham, on 31st May, 1955. The meeting washeld in Mr. Philip Rogers’ office at the ColonialOffice in London and according to the Minutes ofthe meeting, those in attendance were : Mr. P.

The Office of Speakerin Trinidad and Tobago

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Rogers, Sir E. Beetham, Mr. W. Wallace, Mr. J.McPetrie, Mr. I. Watt and Mr. W. Ward.

On the issue of the Speaker, the meeting agreedas follows :

“(d) If the Constitution Reform Committee re-ported in favour of an elected Speaker we shouldagree to it. We should prefer that the LegislativeCouncil be empowered to elect their Speaker frominside or outside membership of the Council; onceelected he would hold office for the lifetime of theCouncil, or until his resignation.” 15

The decision was taken between the Colonial Of-fice civil servants and the then Governor ofTrinidad and Tobago, Sir Edward Beetham, to al-low a Speaker to be chosen from among electedmembers of the Legislative Council or to be cho-sen from outside the Council. They had clearlyworked out two possible responses to the Consti-tution Reform Committee of the Legislative Coun-cil of 1955 – one was to agree to an elected Speakerif so recommended and the other was to suggestthe election of a Speaker from either inside theLegislative Council or from outside of it. This lat-ter view clearly was recommended to Ministersand the 1950 Constitution of Trinidad and To-bago16 was amended in 1956 at section 29 as fol-lows:

“29. There shall be a Legislative Council in andfor the Colony which shall consist of thirty-oneMembers, namely two ex officio Members, fiveNominated Members and twenty-four ElectedMembers:

Provided that if any person elected to be Speakerof the Legislative Council shall not at the time ofhis election be a Member of the Council, the per-son so elected as Speaker shall be a Member ofthe Legislative Council in addition to the afore-said thirty-one Members, and in such event theLegislative Council shall consist of thirty-twoMembers.” 17

The election of the Speaker was to take place onthe basis of a secret ballot among the memberswhich had the effect of reducing the imposition ofany strict party discipline. The emphasis was be-ing placed upon the quality of the individual whowould be elected to hold the office of Speaker byremoving the strictures of party discipline so as toensure that the quality of the nominee could countabove the loyalty to party. These new constitutionalprovisions did not allow for the removal of theSpeaker from office by a vote of censure in theLegislative Council. Clearly it was expected thatthe person who would be elected to that officewould observe the traditions of the office such asthey were at Westminster at the time.

The decision to allow someone who was not amember of the Legislative Council to be eligibleto become its Speaker was a significant policydecision not in keeping with the traditions ofWestminster. That such a provision was modifiedin 1956 in Trinidad and Tobago to allow for anelected member to also be eligible for election tothe office was an attempt to make a compromisein favour of the Westminster model in a colonialsetting. The final product did not resembleWestminster at all and the seeds of a Whitehallmodel were sown insofar as the creation of theoffice of Speaker for a later independence consti-tution were concerned. The term Whitehall modelis used to describe the influence of Colonial Of-fice civil servants over the creation of new consti-tutions for the British colonies. The home of theBritish civil service is often referred to as“Whitehall”.

By 1961 when next the office of Speaker wasmodified in the context of wider constitutionalreform in Trinidad and Tobago, 18 the Whitehallversion of the office had been firmly entrenchedin the Constitution that now provided for full in-ternal self-government with a bicameral Parlia-ment.

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The Speaker was to be elected either from amongthe members of the House of Representatives whowere not Ministers or Parliamentary Secretariesor from among persons who were not members ofeither chamber of the Legislature and the use of asecret ballot was removed.

The Whitehall version of the office of Speaker hasbeen firmly entrenched in Trinidad and Tobago.Without a long tradition of Speakership in the leg-islative process, the challenge of impartialitywould have to rest upon the future holders of theoffice in order to establish lasting traditions.

The question of the absolute impartiality of theSpeaker in Commonwealth countries other thanthe United Kingdom has been widely discussed.It has been conceded that the dissociation of theSpeaker from party politics is difficult to achieve,because the position has come to be regarded as a

privilege of the party in power. In this regard, deSmith 19 and Wilding and Laundy 20 have indicatedthe nature of those difficulties. It is apparent thatthe evolution of the political culture in many Com-monwealth countries has contributed to this situ-ation to such an extent that copying theWestminster practice is politically difficult.

One aspect of this dimension of privilege of theparty in power when combined with the fact thatthe Speaker may be elected from outside of theHouse has had an unusual twist in Trinidad andTobago. In 1995 and in 2001, the House of Rep-resentatives elected a defeated candidate from thegeneral election, in each instance, to be its Speaker.Trinidad and Tobago has also had its own uniqueproblems in 1995 and in 2002 when difficultiesarose over the removal of the Speaker (1995) 21

and the election of a Speaker (2002).

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In establishing the Judiciary for Trinidad and To-bago in the independence constitution, the Con-stitutional Adviser to the Cabinet, Mr. (later Sir)Ellis Clarke, expressed the following views in anexplanatory memorandum to the Colonial Officewhich has since been declassified :

“Provision is made in section 8 of the draft Orderin Council for the Supreme Court as constitutedat present to continue under the name of the HighCourt. The Judges of the Supreme Court becomethe Judges of the High Court and suffer no loss ofstatus, emoluments, allowances or else.

It will be noted that no provision is made for theholder of the post of Chief Justice of the SupremeCourt. The reason for this is that there will be noexactly comparable post on independence. Thenew post of Chief Justice in the draft Constitutionis a joint post of Chief Justice and President ofthe Court of Appeal. In his capacity as Chief Jus-tice the holder of that post is responsible for theadministration of all the courts in the territoryfrom the lowest to the highest. As President of theCourt of Appeal he presides over the final courtin Trinidad and Tobago.” 22

In providing the insight into the creation of thepost of Chief Justice at independence, Ellis Clarkeoutlined the intent of the draftsman as follows :

“It will be observed that in fact the position of theChief Justice and President of the Court of Ap-peal is more analogous to that of the Lord Chan-cellor in England than to that of the Lord ChiefJustice. The Lord Chancellor presides over theHouse of Lords, the highest court in England, theultimate court of appeal. He is also responsiblefor all judicial appointments, for the confermentof silk, etc. The Chief Justice and President of theCourt of Appeal will preside over the final Court

The Judiciaryof Appeal in Trinidad and Tobago and as Chair-man of the Judicial and Legal Service Commis-sion will be largely responsible for judicial andother legal appointments.23

At the Queen’s Hall Conference in April 1962,the meeting of commentators on the draft Consti-tution had a three-day discussion on the draft thatwas prepared in February 1962 by the then Con-stitutional Adviser to the Cabinet, Ellis Clarke.When the Queen’s Hall Conference got around todiscussing the provisions on the Judiciary on Fri-day 27th April, 1962, a number of interesting com-ments were made by the Constitutional Adviserto the Cabinet.

According to Ellis Clarke:

“Let me deal, if I may, Mr. Chairman, now withthe question of tenure of office of Judges. This is amatter of great importance because obviously anyman who goes into a field such as the Judiciary isprimarily concerned with his tenure of office; howlong he is going to be there and under what cir-cumstances. First of all let me say that there is nosuch thing under this Constitution as disciplinaryproceedings against a Judge. There are disciplin-ary proceedings against Civil Servants and againstother people but there are no disciplinary proceed-ings against a Judge. If a Judge is so bad that heshould not continue as a Judge then you must getrid of him but a Judge must not be under any threatof being disciplined.” 24

What Ellis Clarke was doing was making out acase for the independence Constitution to recog-nize judges in a separate category from all otherpersons.

He went further to say :

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“The Judicial Committee of the Privy Council willhave the final say, and in fact the only say on thedismissal of a Judge. That is not a matter in whichthe Prime Minister will have any say. The dis-missal of a Judge, all that the Prime Minister maydo is to say that he thinks that a Judge, throughinfirmity of mind or body, or misbehaviour, oughtto be removed.” 25

Here, Ellis Clarke was indicating to the Confer-ence that the role of the Prime Minister was con-fined to reporting his belief that there was a basisfor considering the removal of a Judge from of-fice on the ground of infirmity of mind or body ormisbehaviour.

He went further to say the following :

“We have inserted a further safeguard; that is tosay instead of saying if the Prime Minister thinksso and so, he can refer the matter to the PrivyCouncil, in much the same way, mind you that ifanybody thinks that a Judge has done anythingwrong he can bring proceedings against thatJudge or against anybody, including the PrimeMinster. All that the Prime Minister can do is ini-tiate something, say that it ought to be taken up,but instead of saying that, it goes straight to thePrivy Council because the Prime Minister saysso. There is interposed a Committee of Judges, aTribunal consisting of three Judges or ex-Judges,and these good gentlemen have to say whether intheir view it should go to the Privy Council atall.”26

A separation was being made here between theremoval of a judge from office and the initiationof proceedings against a judge (or any other offi-cial) for any alleged wrongdoing.

As far as Executive - Judiciary relations are con-cerned in the context of the power of the PrimeMinister to pursue the removal of a Chief Justice,Ellis Clarke had this to say :

“What then are the political consequences for thePrime Minister. Will any Prime Minister, be hesane or be he rash, attempt lightly to initiate suchproceedings ? Suppose they say there is a case togo to the Privy Council, then the case goes to thePrivy Council and is heard by the Privy Council,and the Privy Council can say, and can say in clearand unmistakable terms that there was not a ves-tige of a case to come to them. They can criticisevery strongly indeed the conduct either of thePrime Minister in initiating proceedings or thethree judges if they think they are going to be weakand send the matter to the Privy Council that oughtnever to reach there. So do not think that becausethe expression “Prime Minister” occurs here andthere in this chapter that the power is vested inthe Prime Minister. The power of dismissal isvested solely in the Judicial Committee of the PrivyCouncil and before it can ever get to the JudicialCommittee of the Privy Council, three Judges haveto be of the opinion that it ought to go to them forconsideration.” 27

These provisions have barely been modified in the1976 republican Constitution, but the intent re-mains the same. These comments about the foun-dations of our constitution are as valid today asthey were at independence.

In his explanatory memorandum on thedraft independence constitution for Trinidad andTobago dated 16th April, 1962, Ellis Clarke hadthis to say about the provisions created for the ten-ure of office of judges :

“Perhaps the most important single feature whichgoes to ensure the independence of the Judiciaryand the attraction to the Judiciary of the right typeof Judge is the security of tenure afforded toJudges. For that reason no attempt has been madein the draft Constitution to be original. A formula,carefully devised by the Colonial Office after manyyears as being the most likely to be effective andacceptable and yet not to derogate from the prin-ciples of independence, has been adopted. It isword for word the formula that the Colonial Of-

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fice was able to persuade Nigeria, Sierra Leoneand Tanganyika to accept. There can be little doubtthat it is what they would wish Trinidad and To-bago to accept.” 28

Ellis Clarke reveals that the provisions regardingthe tenure of office of judges in the Trinidad andTobago independence Constitution were virtuallylifted word-for-word from the independence Con-stitutions of Nigeria (1960), Sierra Leone (1961)and the then state of Tanganyika (1961) which laterbecame Tanzania.

He went further in his memorandum to say thefollowing :

“When the formula is carefully studied and un-derstood there is little need to apologise for thelack of originality in the draft Constitution. Theeffect is to ensure that the Judicial Committee ofHer Majesty’s Privy Council, and no one else, cancause a Judge to be removed from his office assuch. It is difficult to imagine how any greatersecurity can be given to any Judge.” 29

The Colonial Office formula was imported at in-dependence from Nigeria, Sierra Leone andTanganyika and the Privy Council was going tobe the final arbiter on the removal of a judge fromoffice. His further explanation of the process isalso worth noting :

“In order, however, that there should be a siftingprocess which would prevent any case withoutmerits from even reaching the Judicial Commit-tee for its consideration, there is provision for akind of preliminary inquiry to be held locally. Thepersons who sit on this preliminary inquiry areJudges or ex-Judges. A Chairman and two othermembers constitute a tribunal. If this tribunal does

not consider that it is appropriate that the ques-tion of the Judge’s dismissal should go to the Ju-dicial Committee of the Privy Council then thatquestion cannot even be referred to the PrivyCouncil. It is only if that tribunal advises that thequestion of the removal of a Judge should be re-ferred to the Judicial Committee that the matteris so referred.” 30

In his explanation, Ellis Clarke was arguing thatthe case against a judge could end locally and neverbe referred to the Privy Council if the tribunal wasnot satisfied that there was a case to go forward.However, as regards the issue of a case being re-ferred to the Privy Council by the tribunal, he hadthis to say :

“It is not difficult to imagine how careful such atribunal would be to ensure that the Judicial Com-mittee does not find itself considering any but theclearly substantial case. Nor is it difficult to imag-ine the type of comment which the Privy Councilwould make if the question of the removal of aJudge was referred to them when there was noground for so referring it.” 31

Ellis Clarke was highlighting the fact that the repu-tation of the members of any tribunal would be atstake if they were to refer a weak case to the PrivyCouncil for their consideration. From his view-point, the Privy Council would be scathing in theircomments on the members of any such tribunal ifa matter came before them on referral that oughtnever to have been sent to them in the first place.

These provisions were essentially retained in ourrepublican constitution as the President has beensubstituted for the Governor-General. Their intent,as devised by the Colonial Office in the 1960s hasnever been changed.

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In the post-independence era in the Common-wealth Caribbean three presidencies have beenestablished in Guyana (formerly British Guiana),Trinidad and Tobago and Dominica. In Guyanaand Trinidad and Tobago, the transfer from an in-dependent monarchy to an independent republicrequired the removal of the personal authority ofQueen Elizabeth II as Queen of Guyana and Queenof Trinidad and Tobago respectively and the es-tablishment, in lieu of her authority, of presiden-cies in which the executive authority of the Stateis vested.

For Dominica, the authority of Queen ElizabethII as Queen of the Associated State of Dominicawas transferred to the presidency of the indepen-dent republic of the Commonwealth of Dominicaupon the termination of associated statehood.

Guyana had independent monarchical status be-tween 1966 and 1970 with Queen Elizabeth II asits Queen and became a republic with a ceremo-nial President in 1970. However, in 1980, after acontroversial referendum in 1979 and also legis-lative changes in 1980, its presidency was signifi-cantly changed from a ceremonial one to an ex-ecutive one. Trinidad and Tobago was an inde-pendent monarchy from 1962 to 1976 when itbecame an independent republic in 1976 with aquasi-ceremonial president.

The creation of monarchies at independence assuccessor states to the colonial state changed therelationship between Queen Elizabeth II as Queenof the colonies of Trinidad and Tobago and ofBritish Guiana where she acted on the advice ofBritish Ministers to the status where she wasQueen of these independent monarchies acting onthe advice of her Guyanese or Trinidad and To-bago Ministers.

The office of Governor-General was created by

the British Government to ensure that there was apersonal representative for the Monarch in allcountries or territories of which there was a con-stitutional requirement for the British Monarch toserve in a capacity that required his or her per-sonal authority to be exercised. The office of Gov-ernor-General was accepted into the constitutionalarrangements of those countries or territorieswhere it was necessary for such arrangements toexist.

Owing to the fact that Queen Elizabeth II cannotreside in all of the countries of which she is Queen,it is, therefore, necessary for her to have a per-sonal representative in each independent countryof which she is Queen in the person of the Gover-nor-General. The authority of the Governor-Gen-eral is grounded in the Royal Prerogative of theBritish Monarchy and it is those powers that areexercised by the Governor-General on behalf ofHer Majesty on the advice of local Ministers.

The reality of that arrangement is that the execu-tive authority of the State is grounded in the RoyalPrerogative of the British Monarchy. In those coun-tries where Queen Elizabeth II is their Queen,Ministers and other parliamentarians pledge anoath of allegiance to Queen Elizabeth II, her heirsand successors upon taking office.

The transfer from monarchical to republican sta-tus in Trinidad and Tobago was accompanied bythe transfer of the Royal Prerogative of the Crownto the new republic as the basis of their State powerand the inclusion of transitional provisions in theAct of Parliament 32 and the new republican Con-stitution. 33 In Guyana, provision was already madein the Independence (monarchical) Constitutionof 1966 34 for Guyana to become a republic uponthe approval of a resolution to that effect in theNational Assembly by simple majority vote. 35

There were no transitional provisions in the Con-

The President

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stitution, but rather replacement provisions. In1980, Guyana enacted a new Constitution 36 tobecome the Co-operative Republic of Guyana.

In the case of Dominica, the island became a Statein free association with the United Kingdom (anAssociated State) in 1967 under the provisions ofthe West Indies Act 1967. 37 An Associated Stateenjoyed full internal self-government, while citi-zenship, defence and external affairs were the re-sponsibility of the United Kingdom. Either party(the United Kingdom or an Associated State) couldwithdraw from the arrangement unilaterally un-der the provisions of the Act. 38

The Independence Constitution of Dominica of1978 39 came into force on 3rd November,1978together with an Order 40 made after a resolutionwas passed in the Dominica House of Assemblyon 12th July,1978 that led to the termination ofDominica’s associated statehood following discus-sions with the British Government. Transitionalprovisions relating to the transfer from associatedstatehood to a sovereign democratic republic wereincluded in the Constitution.

The replacement of the monarchy by a republic inTrinidad and Tobago and in Guyana; and the cre-ation of a republic at independence in Dominicacreated the need for a method of election to choosean indigenous Head of State, namely the Presi-dent of the Republic.

Previously, the appointment of the Governor-Gen-eral was normally based on Letters Patent fromHer Majesty given on the advice of the PrimeMinister of the independent monarchy. The Gov-ernor-General in both Trinidad and Tobago and inGuyana held office “during Her Majesty’s plea-sure.”41

Owing to the fact that Queen Elizabeth II wasQueen of Trinidad and Tobago and also Queen ofGuyana, it was evident that there was no need todevise any formula for succession. The heir to the

British Throne would become the new Head ofState of independent monarchies in the Common-wealth upon succession.

In Guyana, the President is now elected by directelection using the first-past-the-post method ofelection; in Trinidad and Tobago the President iselected by an Electoral College which consists ofa joint sitting of both Houses of Parliament; whilein Dominica the President is elected by the Houseof Assembly only if the Prime Minister and theLeader of the Opposition are unable to agree on asingle nominee for the office.

These methods, therefore, vary from the directchoice of the electorate, to the indirect choice ofthe Legislature and to the concurrence of the PrimeMinister and the Leader of the Opposition. In allinstances the President serves for a period of fiveyears.

In Trinidad and Tobago, the President is chosenby indirect election through the Legislature. AnElectoral College 42 has been established for thispurpose which is a joint sitting of both the Houseof Representatives (an elected House) and theSenate (a nominated House). The House of Rep-resentatives determines the nomination of candi-dates for the Presidency as the nomination papersof candidates must be signed by at least twelveMembers of that House.43

The nominated members get to vote on the elec-tion of the President if there is a contested elec-tion in the Electoral College. The Speaker of theHouse of Representatives presides at sittings ofthe Electoral College and voting is by secret bal-lot among the elected M.P.s and the nominatedSenators. Once elected, the President serves for aterm of five years which is not co-terminous withthe life of the Parliament.44 There may be changesin the composition of the Parliament as a result ofa dissolution and general elections, but these willnot affect the tenure of office of the President.

15


However, in creating a body to elect the President,the framers of the Constitution opted to borrowand adapt the terminology used in the United Statesfor the body that elects the President. This wasoriginally taken from the Report of the Constitu-tion Commission that was chaired by the RightHonourable Sir Hugh Wooding, a former ChiefJustice of Trinidad and Tobago, even though theConstitution Commission based their idea on theIndian model. 45

There was disagreement between the then PrimeMinister, Dr. Eric Williams, and the WoodingCommission on this matter because the Commis-sion was attempting to create a body of parliamen-tarians and local government representatives fortheir Electoral College, while the Prime Ministerchose to exclude the local government represen-tatives from the proposals of his Government.

The Commission sought to justify its proposal byequating the inclusion of local government repre-sentatives with representatives in the State legis-latures in India. Eric Williams was vehementlyopposed to this idea as he could see no compari-son between the two given the disparity in statusbetween a legislature of a State in India and theinferior status of county councils in Trinidad andTobago that had no legislative authority. However,the political reality was that with just the Houseof Representatives and the Senate, any governmentof the day ought to be able to control the electionof a President as opposed to adding the unpredict-able nature of the political composition of localgovernment bodies to the political managementtask involved in electing a President.

Neither the Commission nor the Prime Ministerever stated that their example was drawn from theUnited States in respect of function, but the Gov-ernment certainly adapted the title and the con-cept of the Electoral College from the UnitedStates for carrying out the function of electing thePresident.

The obvious modification of Article 2, Section 1(2)of the United States Constitution in relation to theframing of the republican constitution of Trinidadand Tobago saw the merging of the functions ofthe Electors and the members of the Senate andthe House of Representatives in the United Statesfor the election of the President.

In the United States Constitution there is a clearseparation between these persons as follows:

“Each State shall appoint, in such manner as theLegislature thereof may direct, a Number of Elec-tors, equal to the whole Number of Senators andRepresentatives to which the State may be entitledin the Congress : but no Senator or Representa-tive, or Person holding an Office of Trust or Profitunder the United States, shall be appointed anElector.” 46

By making this adjustment, the members of theHouse of Representatives and the Senate ofTrinidad and Tobago were converted into electorsof the President.

Additional modifications were made to thepractice in the United States Constitution wherebythe responsibility of the President of the Senate inthe United States for counting the votes of the Elec-tors was transferred to the Speaker of the Houseof Representatives. According to Article 2, Sec-tion 1(2) of the United States Constitution :

“The President of the Senate shall, in the Pres-ence of the Senate and House of Representatives,open all the Certificates, and the Votes shall thenbe counted.” 47

This conversion of Article 2, Section 1(2) can beseen in sections 28 and 29 of the republican Con-stitution of Trinidad and Tobago as follows :

“28. (1) There shall be an Electoral Collegefor the purposes of this Chapter whichshall be a unicameral body consist-

16


ing of all the members of the Senateand all the members of the House ofRepresentatives assembled together;

(2) The Electoral College shall be con-vened by the Speaker;

(3) The Speaker shall preside as Chair-man over the proceedings of the Elec-toral College and shall have an origi-nal vote.

29. The President shall be elected by theElectoral College voting in secret ballot.” 48

It is clear that the institution of the Electoral Col-lege in Trinidad and Tobago for the election of thePresident represented the obvious modification of

the American Constitution and allowed the fram-ers of the republican constitution of Trinidad andTobago, in 1976, to create an institution that couldbe adapted to suit local circumstances. After all, itwas necessary to ensure that the replacement ofthe monarchy and the Governor-General was donein such a way as to permit the election of a Presi-dent who would not challenge the Prime Ministerand the Cabinet in the parliamentary system, butyet be the choice of the majority of the two Housesof Parliament. The legitimacy for the office ofPresident would come from the dignified use ofthe power of the majority of both Houses all cer-emonially veiled for the occasion in the ElectoralCollege. Up to the time of writing in Trinidad andTobago, the Electoral College has been convenedin 1977, 1982, 1987, 1992, 1997, 2003 and 2008.

17


Any analysis of constitutional reform in Trinidadand Tobago must include an appreciation of thefoundation of the constitutional model adopted andthe main features of the system of government.

Indeed, it is in this context that the constitutionalthinking of Dr. Eric Williams, first Chief Minis-ter, first Premier and first Prime Minister ofTrinidad and Tobago will help us to appreciate thecharacter of the foundations of our constitutionalsystem. In an address to a public meeting about14 months before he became Chief Minister, inPort-of-Spain, Trinidad on 19th July, 1955, Will-iams remarked, “The Colonial Office does notneed to examine its second hand colonial consti-tutions. It has a constitution at hand which it canapply immediately to Trinidad and Tobago. Thatis the British Constitution.” 49 At the same meet-ing he also said: “Ladies and Gentlemen, I sug-gest to you that the time has come when the Brit-ish Constitution, suitably modified, can be appliedto Trinidad and Tobago. After all, if the BritishConstitution is good enough for Great Britain, itshould be good enough for Trinidad and To-bago.”50

It is clear that the desire of Eric Williams was forthe creation of a suitably modified Westminstermodel for Trinidad and Tobago. The Westminstermodel has been described as:

“…a constitutional system in which the head ofstate is not the effective head of government; inwhich the effective head of government is a PrimeMinister presiding over a Cabinet composed ofMinisters over whose appointment and removalhe has at least a substantial measure of control;in which the effective executive branch of govern-ment is parliamentary in as much as Ministers

must be members of the legislature; and in whichMinisters are collectively and individually respon-sible to a freely elected and representative legis-lature.” 51

This definition, as de Smith rightly confesses inthe book, is a narrow one, because it emphasizesthe executive and legislative branches of govern-ment to the exclusion of the role, powers, dutiesand functions of the judiciary, which at the timeof writing in 1964 were far different from whatwas enacted in the Constitutional Reform Act2005 52 in the United Kingdom. That Act providedfor a greater separation of powers by significantlyaltering the office of Lord Chancellor which ledto the creation of a Ministry of Justice in 2007and the establishment of a Supreme Court for theUnited Kingdom that assumed office on 1st Octo-ber, 2009.

It is clear that Dr. Eric Williams was intent on es-tablishing a Westminster-style democracy inTrinidad and Tobago and he certainly pursued thisafter he became the Chief Minister in 1956.

At the same time, a closer investigation of whatwas established would lead us to find that a pureWestminster system was not established, but rathera Westminster-Whitehall model that had all of thehallmarks of Westminster in titles of offices, etc.,but not the exact structures and functions. Thefollowing quotation summarises the essence of thecreation of the constitutional systems of govern-ment in the Commonwealth Caribbean:

“…[I]t is widely supposed that British policy, if ithas ever had any long term aims at all, hasthroughout the centuries of imperial rule - ‘theCommonwealth experience’ - been at pains to es-

The Westminster-Whitehall Modeland Trinidad and Tobago

18


tablish, even to impose, in the dependencies of theCrown a Westminster model, irrespective of localwish or circumstance: that the Mother of Parlia-ments was concerned to spawn a brood of littleWestminsters and to export them to the colonies.Though this is the common currency of contem-porary British politicians, and of British school-masters, it seems on investigation to be substan-tially quite untrue.” 53

While Madden devotes the thrust of his article todisproving the thesis that the British Governmentever had any intention of establishing theWestminster model overseas, he fails to addressthe reality of what was erected for the ex-coloniesat their independence by Britain. On closer ex-amination, it can be seen that a completely uniquesystem of government was introduced. By identi-fying and describing that unique system of gov-ernment and the legislative institutions that werecreated and subsequently retained, we can con-firm the creation of the Westminster-Whitehallmodel in the Commonwealth Caribbean.

Sacred Westminster doctrines, such as the Su-premacy of Parliament, find themselves beingchallenged in the constitutions of the Common-wealth Caribbean because of the presence of Billsof Rights in those constitutions. Furthermore, thespirit of the Westminster model cannot comfort-ably settle itself in the Commonwealth Caribbeanbecause of substantial parliamentary and proce-dural differences in its architecture. These differ-ences have fundamentally altered the character andcontent of the so-called Westminster model in theCommonwealth Caribbean. And so, to continu-ally refer to the Commonwealth Caribbean sys-tems of government as a manifestation of theWestminster model can be regarded as a misno-mer.

The idea of the Westminster model as defined byde Smith, and the export of that model as discussedby Burns in Parliament as an Export 54 would havesuited the 1960s and early 1970s. This was an era

during which many new states gained their inde-pendence from Great Britain and the compositionof the British Commonwealth assumed a greaterThird World representation. It was too early toassess the impact and the significance of the con-stitutions that had been established in many ofthese newly-independent states, especially in theCommonwealth Caribbean whose era of indepen-dence started in 1962 with Jamaica and Trinidadand Tobago.

By the late 1970s, doubts about the Westminstermodel and its export were expressed. Maddenrejected, in a general sense, the idea that theWestminster model of government could be ex-ported and established overseas. In fact, Maddenargued that it was never the intention of Britishcolonial administrators to export the WestminsterModel in its purest form. According to him, “theonly true Westminster model remained inevitablyat home in Westminster: it was not intended forexport, but was strictly ‘to be consumed only onthe premises’”. 55

This argument, therefore, begs the question that ifthe Westminster model was not exported, thenwhat was ? Madden does not answer this ques-tion but he makes the following assertion:

“Canadians, Australians and Indians made con-stitutions which they believed would last. The newgeneration of constitution makers in the 1950s and1960s were not concerned with creating a perma-nent instrument for government so much as a de-vice for securing independence which could bealtered subsequently at will. Something akin to theBritish model might serve its temporary purposein allaying fears in Britain about transferringpower. But it remains to be proved that it is ap-propriate for the tasks of self-government any-where else than in Britain.” 56

This is the challenge with reference to the Com-monwealth Caribbean where constitutions “akinto the British model” have been established. Forty-

19


seven years after the first territories in theEnglish-speaking Caribbean gained their indepen-dence from Great Britain, only Guyana has actu-ally completed any fundamental constitutionalreform to the extent that their constitution can nolonger be described as being “akin to the Britishmodel”. All of the other countries have madechanges that can only be described as cosmeticand, therefore, the identity of those constitutionshave been preserved, thereby allowing them to stillbe classified as belonging to the Westminster-Whitehall model. Furthermore, the procedures ofentrenchment of the provisions of these constitu-tions have made them secure from being “alteredsubsequently at will” as Madden declares.

The issue that must now be addressed is whetherthese constitutions have reached an evolutionarypoint in their growth and development where theyare in need of reform. Every single country in theCommonwealth Caribbean has entered the dia-logue phase of this exercise and, at the time ofwriting, St. Vincent and the Grenadines passed aConstitution Bill 2009 in their Parliament with therequired two-thirds majority on 3rd September,2009 that is constitutionally required to be sub-jected to a referendum. That referendum was fixedfor 25th November, 2009.

The Whitehall model, named by LeslieWolf-Phillips in the Journal Parliamentary Affairsin 1984 57 bears no relation to the Whitehall modeladvocated by Anthony Birch in The British Sys-tem of Government 58 which stresses the impor-tance of the Crown in the British constitution, andplaces less emphasis on the role and importanceof Parliament. Birch’s Whitehall model relates tothe United Kingdom, while Wolf-Phillips’ relatesto the Commonwealth Caribbean.

Nevertheless, the argument put forward by Birchis interesting in that it reveals a disagreement aboutthe concept of the Westminster model in the UnitedKingdom itself. In these circumstances, theWhitehall model overseas reflects the input of the

Colonial Office and civil servants in Whitehall(hence the name) in the drafting of independenceconstitutions. However, this exercise was not com-pletely one-sided from the point of view of therecipients.

The acceptance of the Whitehall model in theCommonwealth Caribbean revealed a high degreeof reverence for British-inspired constitutionaltechnique. This can be accounted for in terms ofthe fact that the political elites of the Common-wealth Caribbean were brought up under anEnglish-influenced educational system, whilethose who went abroad to study invariably wentto England. Many of them becamebarristers-at-law of the Inns of Court, or solici-tors. Furthermore, the experiences of British co-lonialism would not have exposed these elites, orthe wider society, to any other type of constitu-tional formulae, apart from the British Constitu-tion.

The cultural legacy of British colonialism was suchthat societies in the former British West Indiestrusted the Westminster model as a source of guid-ance and inspiration, despite the desire to seekindependence and to sever ties with the so-calledcolonial master. Nearly fifty years after the firstcountries that got their independence from GreatBritain, the changes in attitude towards theWestminster model can be seen among some ofthe political elites, many of whom were educatedat the University of the West Indies and who holda different view of constitution-making than wasthe case thirty or forty years ago.

The natural reverence for the British Constitutionmay not be there in the Caribbean societies of to-day to the same degree as it was for Eric Williamsand his advisers in 1955 and beyond. As far as hewas concerned, the arguments cited above onlyserve to reinforce the view that we have the Brit-ish Constitution “suitably modified” or something“akin to the British model”. No matter how onemay wish to view it, there seems to be ample evi-

20


dence to show that the Westminster model wasnot exported or transplanted to the CommonwealthCaribbean, but rather that we created somethingunique that we may call the Westminster-Whitehallmodel.

The main features of that model are :

(i) the inclusion of a Bill of Rights in theConstitution that guarantees consti-tutional protection of the rights andfreedoms of the individual which doesnot exist in the Westminster model,notwithstanding the Bill of Rights of1998 in the United Kingdom;

(ii) a unique bicameral system in eight ofthe twelve independent countrieswhich does not resemble the bicam-eral system at Westminster;

(iii) a more rigid enforcement of the Sepa-ration of Powers than that which hadexisted at Westminster until 1st Octo-ber, 2009 when the Supreme Court ofthe United Kingdom came into beingfollowing the prior creation of a Min-istry of Justice on 9th May, 2007;

(iv) the importation of unwrittenWestminster constitutional conven-tions into our constitutions thereby

creating the Westminster-Whitehallmodel;

(v) the entrenchment of constitutionalprovisions in our written constitutionsfor which there is no equivalent atWestminster as they do not have awritten constitution.

The Westminster model has changed significantlysince Trinidad and Tobago and other Common-wealth Caribbean countries got their independencebetween 1962 and 1983. The Bill of Rights of 1998and the Constitution Reform Act of 2005 have al-lowed fundamental alteration to the system ofgovernment in the United Kingdom. For the peopleof Commonwealth Caribbean countries seekingto advance themselves by changing their consti-tutions, the main challenge will be to look beyondthe Westminster model while providing comfortto their societies that the changes that will be madeare safe ones if they fall outside of the Westminsterzone that has provided comfort, especially to po-litical elites, for almost five decades.

Hamid GhanyUniversity of the West Indies,St. Augustine

6th October, 2009

21


1. Sir Kenneth Roberts-Wray, Commonwealth and Co-lonial Law (London : Stevens & Sons, 1966), p. 860.

2. Roberts-Wray, Commonwealth and Colonial Law, p.860.

3. 50 & 51 Vict., c.44.

4. S.R.O. & S.I. Rev. XXIII, p. 297.

5. S.R.O. & S.I. Rev. XXIII, p. 298.

6. S.R.O. & S.I. Rev. XXIII, p. 299.

7. S.R.& O. 1924, p. 1891.

8. Trinidad and Tobago (Constitution) Order-in-Council1950 (S.I. 1950 / No. 510).

9. For a useful historical account of the Legislature ofTrinidad and Tobago between 1887 and 1941, seeMartin Wight, British Colonial Constitutions (Oxford:Clarendon Press, 1952), pp. 301 - 334.

10. See Trinidad and Tobago (Constitution) Order in Coun-cil 1961 (S.I. 1961 / No. 1192).

11. Trinidad and Tobago (Constitution) Order in Council1961 (S.I. 1961 / No. 1192), s.15.

12. For a fuller discussion of the introduction of bicamer-alism in Trinidad and Tobago see also Hamid Ghany,“Eric Williams : The Constitutional Scholar and theIntroduction of Bicameralism in Trinidad and Tobago”,The Journal of Legislative Studies, 3 (4) (1997), pp.92 - 114.

13. Arthur Creech Jones to Sir John Shaw, United King-dom National Archives CO 1031 / 1393, Trinidad No.10, 7th January, 1949, para. 9.

14. For a fuller discussion of the creation of the office ofSpeaker in Trinidad and Tobago see also HamidGhany, “Parliamentary Crisis and the Removal of theSpeaker : The Case of Trinidad and Tobago” , TheJournal of Legislative Studies, 3 (2) (1997), pp. 112 -138.

15. Minutes of Meeting with Sir E. Beetham in Mr. Rogers’Room on 31st May, 1955, United Kingdom NationalArchives CO 1031 / 1393, 31st May, 1955, signed byIan Watt.

16. Trinidad and Tobago (Constitution) Order-in-Council1950 (S.I. 1950 / No. 510).

17. Trinidad and Tobago (Constitution) (Amendment) Or-der in Council 1956 (S.I. 1956 / No. 835), s.23.

18. Trinidad and Tobago (Constitution) Order in Council1961 (S.I. 1961 / No. 1192), s. 24.

19. S.A. De Smith, “Legislatures under Written Constitu-tions” in Sir Alan Burns (ed.) Parliament as an Export(London : George Allen & Unwin, 1966), p. 216.

20. N. Wilding and P. Laundy, An Encyclopedia of Parlia-ment, (London : Cassell, 1972), p. 710.

21. Ghany, “Parliamentary Crisis and the Removal of theSpeaker : The Case of Trinidad and Tobago”, pp. 112- 138.

22. United Kingdom National Archives, CO 1031 / 3226,Explanatory Memorandum by the Constitutional Ad-viser to the Cabinet on the Draft Independence Con-stitution for Trinidad and Tobago, 16th April, 1962, p.9.

23. United Kingdom National Archives, CO 1031 / 3226,Explanatory Memorandum by the Constitutional Ad-viser to the Cabinet on the Draft Independence Con-stitution for Trinidad and Tobago, 16th April, 1962,pp. 9 - 10.

24. Verbatim Report of the Meeting of Commentators onthe Draft Constitution at Queen’s Hall, 25th - 27thApril, 1962, p. 194.

25. Verbatim Report of the Meeting of Commentators onthe Draft Constitution at Queen’s Hall, 25th - 27thApril, 1962, p. 196 .

26. Verbatim Report of the Meeting of Commentators onthe Draft Constitution at Queen’s Hall, 25th - 27thApril, 1962, pp. 196.

27. Verbatim Report of the Meeting of Commentators onthe Draft Constitution at Queen’s Hall, 25th - 27thApril, 1962, pp. 196 - 197.

28. United Kingdom National Archives, CO 1031 / 3226,Explanatory Memorandum by the Constitutional Ad-viser to the Cabinet on the Draft Independence Con-

NOTES

22


stitution for Trinidad and Tobago, 16th April, 1962, p.10.

29. United Kingdom National Archives, CO 1031 / 3226,Explanatory Memorandum by the Constitutional Ad-viser to the Cabinet on the Draft Independence Con-stitution for Trinidad and Tobago, 16th April, 1962, p.10.



32. Laws of Trinidad and Tobago, Ch. 1:01.

33. Laws of Trinidad and Tobago, Ch. 1:01, The Schedule.

34. The Guyana Independence Order 1966, S.I. 1966 /No.575.

35. By virtue of Resolution No. XXVI passed by the Na-tional Assembly on 29th August,1969, Guyana be-came a Republic on 23rd February,1970 and the alter-ations to the Constitution originally set out in the Sec-ond Schedule to the Constitution (S.I. 1966 / No.575)took effect in accordance with section 73(5) of thatConstitution.

36. By virtue of Act No. 2 of 1980 Guyana enacted a newConstitution of the Co-operative Republic of Guyana,repealed the Guyana Independence Act 1966, theGuyana Independence Order 1966, and the Constitu-tion existing at that time. The new Constitution wascontained in Act No. 2 of 1980 as a Schedule.

37. 15 & 16 Eliz. 2, c. 4. Under the provisions of this Act,the United Kingdom created associated statehood sta-tus for Antigua and Barbuda, Dominica, Grenada, St.Kitts-Nevis, St. Lucia, and St. Vincent and the Grena-dines.

38. 15 & 16 Eliz. 2, c. 4, s.10.

39. The Commonwealth of Dominica Constitution Order1978, S.I. 1978/No.1027

40. The Dominica Termination of Association Order 1978,S.I. 1978 / No.1031

41. The Trinidad and Tobago (Constitution) Order inCouncil 1962, s.19 and the Guyana Independence Or-der 1966, s.30.

42. Laws of Trinidad and Tobago, Ch. 1:01, Schedule, s.28.



45. Report of the Constitution Commission, Trinidad andTobago, (Trinidad and Tobago Printing and Packag-ing Ltd., 22nd January, 1974), paras. 149 and 150.

46. Angela Roddey Holder and John Thomas RoddeyHolder, The Meaning of the Constitution, Third Edi-tion, (Hauppage, N.Y., U.S.A., 1997), p. 36.

47. Roddey Holder and Roddey Holder, The Meaning ofthe Constitution, p. 36.

48. Laws of Trinidad and Tobago, Ch. 1:01, Schedule, ss.28 and 29.

49. Eric Williams, Constitution Reform in Trinidad andTobago, Public Affairs Pamphlet No. 2, Teachers’ Edu-cational and Cultural Association, Trinidad, 1955, p.30.

50. Williams, Constitution Reform in Trinidad and Tobago,p.30.

51. S. A. de Smith, The New Commonwealth and its Con-stitutions, (London, Stevens and Sons, 1964), pp. 77 -78.

52. United Kingdom Statutes, 2005, c.4.

53. A. F. Madden, “ ‘Not for Export’ : the WestminsterModel of Government and British Colonial Practice”,Journal of Imperial and Commonwealth History, Vol.8 (1) 1979.

54. Burns (Ed.), Parliament as an Export.

55. Madden, Journal of Imperial and Commonwealth His-tory.

56. Madden, Journal of Imperial and Commonwealth His-tory.

57. Leslie Wolf-Phillips, “A Long Look at the British Con-stitution”, Parliamentary Affairs, Vol. 37 (4) 1984.

58. Anthony Birch, The British System of Government(London, George Allen and Unwin, 4th ed., 1980), pp.25 - 26).

23


Many of our institutions and constitutional pro-cesses have not performed in the manner that wasintended. The major one has been the presidency.It has been severely damaged by periodic politi-cal wrangling between the office of the PrimeMinister and the office of the President which wasnever intended as well as the frequent attacks ofbias that have been made against the office bysome parliamentarians and politicians who haveserved in opposition to the government.

As stated earlier, the President is chosen by indi-rect election through Parliament and the institu-tion called the Electoral College (borrowing aname for the institution that elects the Presidentof the United States) has been established for thispurpose. It is a joint sitting of both the House ofRepresentatives and the Senate. The members ofthe House of Representatives determine the nomi-nation of candidates for the Presidency as thenomination papers of candidates must be signedby at least twelve Members of that House. TheSpeaker of the House of Representatives presidesover the Electoral College and voting is by secretballot (only if there is more than one candidate)among the forty-one elected M.P.s and the thirty-one nominated Senators. Once elected, the Presi-dent serves for a term of five years which is notco-terminous with the life of the Parliament. Theremay be changes in the composition of the Parlia-ment as a result of bye elections or a dissolutionand general elections, but these will not affect thetenure of office of the President.

The creation of this hybrid for the office of Presi-dent of the Republic to replace the Governor Gen-eral introduced the principle of indirect electionby the Legislature as an alternative method to theadvice of the Prime Minister being given to theQueen of Trinidad and Tobago (who also happenedto be Queen of the United Kingdom and severalother Commonwealth countries) for the appoint-ment of the Governor General. The replacementof the monarchy and the Governor-General by theelection, through the Electoral College, of a Presi-dent who would not challenge the Prime Ministerand the Cabinet in the parliamentary system, butyet be the choice of the majority party, was an in-novation that still left the presidency open to thechallenge of being biased in favour of the partythat elected him into office.

Presiding Officersto act as President

Perhaps, the area in which the modification of theUnited States Constitution in the framing of the1976 republican Constitution of Trinidad and To-bago can best be seen is in the use of the Presidentof the Senate and the Speaker of the House ofRepresentatives in a chain of command to act asPresident of the Republic if the President is un-able to perform the functions of his / her office.

In the United States, these offices are decidedlypartisan; however, in Trinidad and Tobago theyare intended to be just the opposite given theWestminster ethos of the Constitution. Neverthe-less, the clever use of the titles allowed the fram-

Part One

Constitutional Controversiesand Constitutional Reform

24


ers of the republican constitution to construct anedifice of impartiality that would support the presi-dency in maintaining its intended character of be-ing an impartial office given its historical evolu-tion out of the office of the Governor-General.

The royal blessings that would normally cover theacting Governor-General meant that the search foran almost equal veil of impartiality would leadthe framers to the presiding officers of Parliament.

The use of the President of the Senate to act asPresident of the Republic of Trinidad and Tobagoundoubtedly recalls the Twenty Fifth Amendmentto the United States Constitution that addressesthe question of the inability of the President todischarge his / her functions.

There are however some difficulties associatedwith this procedure of using the President of theSenate in the Parliament of Trinidad and Tobagoto act as President of the Republic. The main ar-eas of concern revolve around (i) the method ofappointment of the President of the Senate; (ii)the inability to impeach a President while Parlia-ment is dissolved; (iii) the complications associ-ated with the need for an acting President whileParliament is dissolved; (iv) the determination ofthe inability of the President to perform the func-tions of his / her office; (v) the potential for de-feated candidates to be elected as Presiding Of-ficers and thereby be eligible to serve as an actingPresident; (vi) the failure of the House of Repre-sentatives to elect a Speaker after a general elec-tion.

Method of Appointment of thePresident of the Senate

The President of the Senate is elected from amongthe Senators at the first sitting of the Senate aftera dissolution of Parliament. In Trinidad and To-bago, sixteen Senators are appointed by the Presi-dent on the advice of the Prime Minister, six Sena-tors are appointed by the President on the advice

of the Leader of the Opposition, and nine Sena-tors are appointed by the President in his / her dis-cretion from among outstanding persons from eco-nomic or social or community organizations andother major fields of endeavour. 1

Since the introduction of these arrangements, thePresident of the Senate has always been electedfrom among those Senators recommended by thePrime Minister because of the existence of a fixedGovernment majority (16 – 6 – 9). As a conse-quence, there has always been a harmonious rela-tionship between the Prime Minister and the act-ing President whenever the President has beenunable to perform the functions of his office inTrinidad and Tobago since 1976.

However, a fundamental problem would arise ifthe acting President (in the person of the Presi-dent of the Senate) and the Prime Minister wereto have a disagreement which would lead to thePrime Minister advising the acting President torevoke his / her own appointment as a Senator. Itis perhaps constitutionally impossible to revokeone’s own appointment other than by resignationunder your own hand.

In such a situation, the President of the Senate whowould be acting as President of the Republic couldhardly write a letter of resignation to himself /herself. This is a weakness in the creation of thehybrid even though the situation has not arisen upto the time of writing. In another sense, it may beseen as a strength as it preserves the independenceof the office during the period of an acting presi-dency by ensuring that the acting President can-not be removed for any other reason than by in-ability to perform the functions of the office, butthere is no guarantee that constitutional compli-cations could arise.

Among the qualifications for the office of Presi-dent is a requirement that the person so electedmust be 35 years old. At the same time, the quali-fications for nomination as a Senator include that

25


the person should be 25 years old. It is possiblethat a President of the Senate who is 25 years oldcould act as President of the Republic notwith-standing the requirement that the holder of theoffice should be 35 years old or there may be aconstitutional conundrum which may deem thePresident of the Senate incapable of acting by vir-tue of his / her age.

The Inability to Impeach thePresident during a Dissolution

During a dissolution of Parliament, it is impos-sible to impeach the President of the Republic asany motion seeking to initiate such proceedingsmust be commenced in the House of Representa-tives. 2

The recall of the House of Representatives andthe Senate during a dissolution and before a gen-eral election can only be accomplished by thePresident acting on the advice of the Prime Min-ister 3 and it is unlikely that a President would agreeto recall a Parliament for the purpose of havinghimself / herself impeached.

In January 2001, a situation arose in which thePresident violated the provisions of the Constitu-tion by refusing the advice of the Prime Ministeron the appointment of seven of the sixteen Sena-tors recommended by him (the Prime Minister)on the ground that they were defeated candidates.There is no constitutional or parliamentary prohi-bition on defeated candidates being appointed asSenators.

The effect of this action also had the potential tocompromise the election of a President of the Sen-ate when Parliament was eventually opened on 12th

January, 2001 after the general election on 11th

December, 2000. The nominee of the Governmentside (Mr. Ganace Ramdial) was eventually electedunopposed even though the Opposition could havemounted a challenge by nominating someone of

their own choosing seeing that the Governmentdid not have a mathematical majority in the Sen-ate at the opening of Parliament.In the intervening period between the general elec-tion and the opening of Parliament the Prime Min-ister could take no action to deal with this viola-tion as Parliament was dissolved. By placing theGovernment side in a minority position in the Sen-ate at the opening of Parliament, the President wasin a position to cause someone other than a Gov-ernment nominee to be elected as President of theSenate.

Furthermore, even if the Government wished tocommence impeachment proceedings against thePresident, the fact that the Government did nothave seven Senators available to them meant thatany attempted impeachment would be likely to fail.

The impeachment process depends upon a two-thirds majority of the Electoral College for thesuccessful removal of a President. Being sevenSenators short at the opening of Parliament meantthat the President could have violated the Consti-tution without fear of being impeached. Further-more, all Senators do not enjoy security of tenureand they can be removed by the President on theadvice of the person who advised their appoint-ment.

Complications associatedwith an Acting President

during a Dissolution

When Parliament is dissolved, the President of theSenate and the Speaker of the House of Repre-sentatives hold office until a new Parliament isopened after a general election. 4 At the moment,when, at the opening of Parliament, the Clerk ofthe Senate and the Clerk of the House of Repre-sentatives recite the proclamation by the Presidentsummoning a new Parliament, the offices of thesepresiding officers become vacant.

26


During the period of the dissolution of Parliamentbetween 28th August, 2002 and the opening ofParliament on 17th October, 2002, the Presidentof the Republic, Mr. Arthur N.R. Robinson, wasill at various times and Dr. Linda Baboolal, thePresident of the Senate, had to act as President.

However, on the day of the ceremonial openingof Parliament, there was an interesting situationof great constitutional importance when, after thecompletion of the agenda in the Senate by Dr.Baboolal as President of the Senate, it was neces-sary for her to leave the Parliament Building andgo to President’s House where she was sworn intooffice as Acting President of the Republic. Shethen rode in state to the Parliament Building whereshe addressed both Houses of Parliament as theActing President of the Republic.

The constitutional niceties of what had occurredmay best be summed up this way. Dr. Baboolalhad been acting President up to the day on whichthe Parliament was to be opened owing to the ill-ness of President Robinson. Just prior to the sit-ting of Parliament, President Robinson resumedhis functions as President as the effect of the re-cital by the Clerk of the Senate of the Proclama-tion summoning Parliament to meet effected thetermination of Dr. Baboolal’s term of office asPresident of the Senate.

This effectively meant that she could not serve asActing President from that moment. Between thattime and her eventual arrival at President’s Houseto be sworn in as Acting President, it was neces-sary for President Robinson to be available forState duty.

His availability for duty was made all the morenecessary as there had been no Speaker of theHouse of Representatives elected in the previousParliament owing to a parliamentary deadlock asa result of an 18 – 18 tie after the general election.In the circumstances, the chain of command forthe acting presidency could not extend beyond the

President of the Senate that day as a Speaker wasbeing elected for the first time since the first failedattempt on 5th April 2002.

These were anxious moments of constitutionaluncertainty at the opening of Parliament in 2002.

Determination of PresidentialInability to Perform Duties

The determination of the inability of the Presidentto perform his duties is a key component in hav-ing the President of the Senate act as President ofthe Republic. Such a situation arose in 1998 whenPresident Arthur N.R. Robinson became ill for aprolonged period and had to undergo a series ofmedical tests. The President of the Senate, Mr.Ganace Ramdial, acted as President during thisperiod. Additionally, there were public occasionsthat President Robinson attended while being un-able to perform his duties, but he was well enoughto attend a social engagement. This created awk-ward moments of having both the substantive andthe acting Presidents in attendance at the sameevent. Such a situation arose on Tuesday 24th

March, 1998 when His Royal Highness PrincePhillip, the Duke of Edinburgh, was received atPresident’s House by President Arthur N.R.Robinson while he was incapable of performinghis functions as President, but was well enough toreceive Prince Phillip socially. Simultaneously, thePresident of the Senate, Mr. Gance Ramdial, wasperforming the duties of Acting President and wasalso at President’s House to present gold and sil-ver medals to 122 persons in the President’s AwardScheme (formerly known as the Duke ofEdinburgh’s Award Scheme before Trinidad andTobago became a republic).

Another difficulty related to the determination bythe President as to whether or not he was inca-pable of carrying out his functions. Such a situa-tion arose in 1986 when the then President, SirEllis Clarke, travelled out of the country for threedays and made no arrangements for the President

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of the Senate, Dr. Wahid Ali, to act for him.

President Clarke’s explanation upon his return wasthat he determined that he would have been ableto carry out his functions, notwithstanding hisabsence from the country, as he was only over-seas for three days and he knew that there was notanything that he was required, as President, to doover those three days. In a newspaper interviewon the subject, President Clarke said, inter alia,as follows :

“If I had been leaving the country on a Sunday toreturn the following Sunday, I would have no doubtin my mind that the President of the Senate wouldact. But whether he should act when I am awayfor one or two days, that is for me to determine.”5

This interpretation clearly places the burden ofdetermination of inability to perform presidentialduties on the President and removes any automaticrequirement to have an acting President if the sub-stantive President does not believe that one is re-quired. In the circumstances, the President of theSenate does not automatically act as President.However, another President may hold a differentview and this is open to debate on constitutionalgrounds.

The Potential for DefeatedCandidates to be Elected

Presiding Officers

Another possible complication arising out of themodel of using the Presiding Officers of Parlia-ment in the chain of command for the acting presi-dency is the possibility of having defeated candi-dates from a general election being elected as Pre-siding Officers.

In November 1995 and in January 2001, defeatedcandidates were elected to the office of Speakerof the House of Representatives. In all Common-wealth Caribbean Parliaments (with the exceptionof Barbados) the Speaker may be elected either

from among elected M.P.s or from outside theHouse. This is the Whitehall version of the officeof Speaker discussed earlier. 6

The election of two defeated candidates in suc-cessive general elections to serve as Speaker ofthe House of Representatives created a situationwhereby it could have been possible for either oneof them to serve as Acting President of the Re-public if the President of the Senate was unable toact as President of the Republic for whatever rea-son.

The Failure of the House ofRepresentatives to Elect a Speaker

After the December 2001 general election inTrinidad and Tobago, the House of Representa-tives was unable to elect a Speaker at its first sit-ting on 5th April, 2002. Parliament was proroguedon 6th April, 2002 and it was summoned for a sec-ond session on 28th August, 2002 in another at-tempt to elect a Speaker which also failed. TheParliament was subsequently dissolved at mid-night on 28th August, 2002 without a Speaker.

This created an area of weakness in the chain ofcommand for the acting presidency as the chaincould not go beyond the President of the Senate.Even if the Vice – President of the Senate were toassume duties as the acting President in a crisis,there would not have been any Deputy Speaker toconvene the Electoral College to elect someoneto act as President in accordance with section 27(3)of the Constitution (supra) as there was no Speakeror Deputy Speaker.

Additionally, if there were a state of emergency,the Proclamation by the President could only lastfifteen days as there would be no Speaker to con-vene the House of Representatives to debate thestatement by the President outlining the specificgrounds on which the emergency was declared asrequired by the Constitution. 7

Once again, the use of the Presiding Officers of

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Parliament in the chain of command for the presi-dency has its own built-in complications when aSpeaker cannot be elected. These complicationscan operate two ways by creating vulnerabilitiesin the legislature and in the presidency.

A related theoretical complication in cases wherea Speaker is chosen from among the elected mem-bers could arise in relation to the age of theSpeaker. Among the qualifications for the officeof President is a requirement that the person soelected must be 35 years old. At the same time,the qualifications for election as a Member of Par-liament include that the person should be 18 yearsold. It is possible that a Speaker of the House ofRepresentatives who is 18 years old could act asPresident of the Republic notwithstanding the re-quirement that the holder of the office should be35 years old. However, the same constitutionalconundrum that applies to the President of theSenate (supra) could also apply here.

Impact of the Method of Electionon the Presidency

The election of the President of Trinidad and To-bago highlights the challenge of devising a methodof election that allows the holder of the office ofPresident an important measure of legitimacy with-out competing with the Prime Minister and theCabinet for political dominance in the system.

The method of indirect election dominated by theelected representatives of the people in Trinidadand Tobago caters to that need. Trinidad and To-bago may be described as having a quasi-ceremo-nial Presidency based on the mixture of advisoryand minimal discretionary powers exercised by thePresident.

Impartiality, Responsibilityand Immunity

The President of Trinidad and Tobago does not

carry any political responsibility for the exerciseof his / her discretionary powers, while Ministersbear responsibility for those powers exercised bythe President on their advice.

Apart from the fact that the President is not di-rectly elected at a general election, it appears asthough the concept of ‘The Monarch can do nowrong’ has been transferred from the office ofGovernor-General to the Presidency in Trinidadand Tobago. This concept and its immunities arebest expressed as follows :

“English law has always clung to the theory thatthe king is subject to law and, accordingly, canbreak the law.....The courts were the king’s courts,and like other feudal lords the king could not besued in his own court. He could be plaintiff - andas plaintiff he had important prerogatives in thelaw of procedure - but he could not be defendant.No form of writ or execution would issue againsthim, for there was no way of compelling his sub-mission to it. Even today, when most of the ob-stacles to justice have been removed, it has beenfound necessary to make important modificationsof the law of procedure and execution in theCrown’s favour.

The maxim that ‘the king can do no wrong’ doesnot in fact have much to do with this proceduralimmunity. Its true meaning is that the king has nolegal power to do wrong. His legal position, thepowers and prerogatives which distinguish himfrom an ordinary subject, is given to him by thelaw, and the law gives him no authority totransgress.....But the king had a personal as wellas a political capacity, and in his personal capac-ity he was just as capable of acting illegally aswas anyone else - and there were special tempta-tions in his path. But the procedural obstacles werethe same in either capacity. English law never suc-ceeded in distinguishing effectively between theking’s two capacities.” 8

As far as Trinidad and Tobago is concerned, the

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constitution provides the necessary exemptions forthe exercise of the President’s powers in keepingwith the principle ‘that the king can do no wrong’.The constitution also goes further to protect thePresident in both his / her official and personalcapacities. In Trinidad and Tobago, section 38 ofthe Constitution reads as follows :

“Subject to section 36, the President shall not beanswerable to any court for the performance ofthe functions of his office or for any act done byhim in the performance of those functions.” 9

There are also further exemptions in respect ofcivil and criminal proceedings contained in thesame section.

Additionally, the exercise of powers by the Presi-dent on the advice of, or after consultation with,any person or authority is protected from the scru-tiny of the courts by the Constitution. 10

While this is, perhaps, not an unusual protectionfor any Head of State to enjoy, the fact that politi-cal responsibility (exclusive of misbehaviour) doesnot exist and the fact that it is accompanied byjudicial exemption places the President of Trinidadand Tobago in a special position in relation to theconstitution and the law in some respects. ThePresident exercises fundamental powers of ap-pointment of persons to high offices of State andother important offices of a national character af-ter consultation (which means that he is not di-rected on advice and can act in his own discretionor deliberate judgment once he has consulted rel-evant persons or authorities).

Republicanism and theUnited States Constitution

In becoming a republic, Trinidad and Tobago wasfaced with the challenge of combining its republi-can presidency with its British foundations. Theestablishment of a presidency that was not dis-

similar to the Governor-General of any Common-wealth country in character still presented anoma-lies beyond the methods of election.

To this end, certain aspects of the United StatesConstitution appeared attractive enough for a pro-cess of hybridization to take place.

In the case of Trinidad and Tobago, the title of thebody that would elect the President was namedthe “Electoral College”. In trying to balance theshift to republicanism and yet maintain the im-partiality associated with the Crown, the use ofthe Presiding Officers of Parliament as eligiblepersons in a chain of command for the presidencywas a political response given to the framers ofthe constitution.

In Trinidad and Tobago the President of the Sen-ate followed by the Speaker of the House of Rep-resentatives is the dedicated chain of command.Where neither of them are able to act, then theVice President of the Senate shall act as Presidentwhile the Deputy Speaker of the House of Repre-sentatives convenes a sitting of the Electoral Col-lege to elect someone to act as President withinthe first seven days of the Vice-President of theSenate acting as President.

These arrangements seek, as far as possible, tocloak the Presidency with the cloth of impartial-ity through the clever use of titles and functionsthat reveal a Westminster – Washington hybrid.

Exercise of Presidential Powersin Cases of Transition

Political change came to Trinidad and Tobago forthe first time in 1986. The transition of power wassmooth, however, the attitude of the new PrimeMinister A.N.R. Robinson towards the outgoingPresident Ellis Clarke left much to be desired inrelation to appointments that were to be made bythe President himself.

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The re-appointment of James Alva Bain to thePublic and Police Service Commissions on 31stDecember, 1986 ended up in a court battle thatPrime Minister Robinson lost. This acrimony wasfollowed by further controversy over the appoint-ment of former Chief Justice Cecil Kelsick, on14th March, 1987, to the Judicial and Legal Ser-vice Commission to replace Noor Hassanali whohad resigned in order to become the new Presi-dent of the Republic.

The fundamental issue was whether the Presidentought to be swayed by the opinion of the PrimeMinister in exercising his powers of appointmentafter consultation (as opposed to advice). Thesecontroversies resulted in the appointment of aConstitution Commission under the chairmanshipof Sir Isaac Hyatali in June 1987.

Further controversy arose in 1997 when the UNC/ NAR coalition did not propose a third term forPresident Noor Hassanali, but rather accommo-dated the shift of ANR Robinson from his portfo-lio of Minister Extraordinaire in the Cabinet ofthe coalition Government into the office of thePresident. This move introduced the challenge ofhaving a serving politician being elevated to thepresidency. Prime Minister Panday paid dearly forthis move as it was not long before PresidentRobinson engaged in open public defiance of thePrime Minister by refusing his advice on the ex-ercise of certain constitutional functions wheresuch advice was required.

The country was subjected to the spectacle of thePresident refusing the advice of the Prime Minis-ter over the revocation of the appointment of twoSenators and the refusal of the Prime Minister’sadvice to appoint another two Senators in theirplace in January 2000. By December 2000, therewas a lengthy delay in the re-appointment ofBasdeo Panday as Prime Minister after the UNCwon the general election. This was followed bythe refusal to appoint seven defeated candidatesas Senators and a prolonged standoff of 55 days

before the President capitulated and made the ap-pointments.

There was further controversy when the Presidentdelayed the dissolution of Parliament after thatadvice was tendered by Prime Minister Panday inOctober 2001. Further difficulties arose in Decem-ber 2001 when Robinson removed Panday asPrime Minister in the face of an 18 – 18 tie.

Any future conflict of this nature between thePrime Minister and the President will expand thedamage that has already been done to the presi-dency. Some have argued that the time has comefor a merger of the functions of the Head of Gov-ernment and the Head of State in order to avoid arepeat of these precedents, either in the office ofthe Prime Minister or the office of the President.

Under our current system of government, it is onlythe Prime Minister who is required to bear politi-cal responsibility for his actions. The President isinsulated from legal challenge by the Constitutionin sections 38(1) and 80(2). The Prime Minister isbound by the collective responsibility of the Cabi-net to Parliament and by his own individual min-isterial responsibility to Parliament in the dischargeof his functions. The President has no such ac-countability requirement and he is simultaneouslyprotected by the Constitution.

The public political wrangling that has taken placein the past between Prime Minister and Presidenthas now made the strongest case for changing thepresidency at this time by merging the offices ofPrime Minister and President into one. Futureloopholes are likely to emerge if constitutionalreform is not undertaken.

In more recent times, there have been problemsfor the presidency associated with the appointmentand resignation of the entire Integrity Commis-sion of Trinidad and Tobago over a period ofeleven days in May 2009. This came after themembers of the previous Integrity Commission

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had resigned in February 2009 following an ad-verse outcome in a matter in the High Court. Upto the time of writing, the President had been un-able to appoint members of a new Integrity Com-mission to effect the transition from one Commis-sion to another. The political reality is that thePresident does not bear any political responsibil-ity to any person or authority for the appointmentor the failure to appoint an Integrity Commissionor any other Commission or office holder forwhich he is required to make an appointment. Thatis a major loophole in the existing Constitution.

ENDNOTES

1. Laws of Trinidad and Tobago, Ch. 1:01, Schedule, s.40(2).



4. Laws of Trinidad and Tobago, Ch. 1:01, Schedule, s.45(1) and s. 50(1).

5. See “President Clears the Air” in Sunday Guardian,13th April, 1986, pp.1 and 18. The Sunday Guardian isa newspaper published in Trinidad and Tobago.

6. For a fuller discussion on the office of Speaker inTrinidad and Tobago, see : Hamid Ghany “Parliamen-tary Deadlock and the Removal of the Speaker : TheCase of Trinidad and Tobago” in Journal of Legisla-tive Studies 3 (2) (1997), pp. 112 - 138.


8. H.W.R. Wade, Administrative Law (Oxford Univer-sity Press, 1990), p.809.


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

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On 9th January, 2009, the Prime Minister of theRepublic of Trinidad and Tobago, the HonourablePatrick Manning, M.P., laid in the House of Rep-resentatives “The Working Document on Consti-tutional Reform for Public Consultation”.Accoring to the Hansard for the House of Repre-sentatives for that date, the Prime Minister saidinter alia the following :

“I am sure by now it is clear that we will have anextended period of discussion on a new Constitu-tion for Trinidad and Tobago. My estimation isthat it would be almost two years before we areable to finalize a document for the considerationof Parliament. The length of time, the depth ofdiscussion and the participation by the citizenryare not only appropriate, but very necessary, giventhe seriousness of this matter. Arising out of thesedeliberations, the Government will then producea Green Paper for further public comment. Mr.Speaker, today we have completed an importantphase in this all- important process. Let us, there-fore, now go forward to shape a new Constitutionfor the Republic of Trinidad and Tobago; one thatwould serve us well in this 21st Century and be-yond. As we seek to effect change, let us be mind-ful of one inalienable fact: the basic and funda-mental rights and freedoms of all the people inour diverse society must not only be preserved,but strengthened. So thankfully entrenched are theprinciples of democracy in this country, that ourcitizens would tolerate nothing less. Whateverchanges we effect in our constitutional arrange-ments, we must continue to protect our countryagainst any possible assaults on our freedoms orbelief in justice and equality for all the people of

our beloved country. Let us, therefore, never un-derestimate the gravity of this undertaking. It isone of the most important exercises since the at-tainment of independence of this country. We mustgive it the serious attention it deserves, and I urgeall citizens to get involved. This is the inescap-able responsibility of nationhood.” 1

The process of public consultation and discussionis about to begin. Having been asked by theHonourable Prime Minister to lead this phase ofthe process that he outlined in the House of Rep-resentatives on 9th January, 2009, there are someexplanatory comments that need to be made onthe Working Document.

The Effect of Hybridization

It is clear that the intention is to create a hybridparliamentary – presidential constitution withparliamentarism being the dominant force in thehybrid. It is clear also that the balance betweenthe executive and the legislature will now be tiltedin favour of the legislature and the executive willbe weakened owing to the fact that there will nolonger be a dominant parliamentary executive inwhich members of the Executive branch of theState (Cabinet and Ministers) will be now be pre-vented (except for four ministers in each House)from also being members of the Legislative branchof the State (Parliament). This will create a morelevel political situation in relation to the Separa-tion of Powers in which the dominance of theCabinet over the Parliament will be diminishedas persons who seek to stand for election as aMember of the House of Representatives or are

Part Two

The Working Document on ConstitutionalReform for Public Consultation

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appointed to the Senate will be doing so on thebasis that they cannot become Ministers (exceptfor four out of forty-one, for the time being, in theHouse of Representatives and four out of thirty-seven in the proposed Senate). These persons willbe seeking to become parliamentarians, not Min-isters. The Cabinet is capped at twenty-five Min-isters and includes the President, the Vice-Presi-dent, the Attorney General, the two Majority Lead-ers from both Houses of Parliament and such num-ber of Ministers (not to exceed the remainingtwenty positions of Minister that would be avail-able) (see sections 96 and 97 of the Working Docu-ment).

The possibility of the Majority Leader of the Houseof Representatives being in the Cabinet who doesnot belong to the same political party as the Presi-dent may arise if there is a hung Parliament at thecommencement of the parliamentary term just af-ter a general election. Seeing that the requirementsfor the establishment of the new Cabinet list theMajority Leaders of the House and the Senate asmembers of the Cabinet, this will provide the out-ward expression of a coalition in the Cabinet thatwill be reflective of the inconclusive political out-come in the House of Representatives after thegeneral election.

The proposed merger between the existing officeof President and the existing office of Prime Min-ister (with the abolition of the office of PrimeMinister) will remove an impartial arbiter fromthe system. The actual presidency that is now be-ing proposed will be weaker than the office ofPrime Minister under the existing constitutionalarrangements for the following reasons :

(i) The election of the President through theHouse of Representatives and his / her re-moval from that House after elevation to thepresidency provides for a more rigid separa-tion of powers which will strengthen the handof that House in relation to the Executive.

(ii) The retention of a nominated Senate ensuresthat the House of Representatives will bedominant over the Senate. When coupled withthe removal of the President from that House(unlike the current arrangement where thePrime Minister is a member of that House),the effect will be to make the House of Rep-resentatives and whoever controls an effec-tive majority in it the effective power brokerunder the proposed constitution.

(iii) The proposal to have the President appointfour Ministers from each House of Parliamentas well as to have the Majority Leaders ineither House become members of the Cabi-net and also possibly appointed as Ministerswill provide the opportunity for more effec-tive power to reside with those Majority Lead-ers and Ministers as they are the only oneswho will sit in both the Executive (Cabinet)and Legislative (Parliament) branches of gov-ernment. In effect, the person who will be-come the most powerful of them all is likelyto be the Majority Leader in the House of Rep-resentatives seeing that the elected House ofRepresentatives is to be superior to the nomi-nated Senate.

(iv) The Majority Leaders in both Houses can onlybe removed for their inability to perform theirfunctions and it is the Majority Leader in theHouse of Representatives who must initiateany action with the Speaker to inform him /her about any members of parliament whosupport the majority who have either re-signed, or been expelled, from their party(where there is a hung parliament, this func-tion will be muted for both Majority and Mi-nority Leaders in the House of Representa-tives and will not apply at all to third parties– see section 64). This function does notreside with the President. In this way, theMajority Leader in the House of Representa-tives becomes a virtual Prime Minister be-cause of the hybrid model. This will have an

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impact on political party structures as twopoles of effective political power will be con-structed as opposed to the existence of oneunder the existing constitution. These twopoles of political power will be the President,on the one hand, who will be required to ex-ercise both the dignified and efficient aspectsof power, and, the Majority Leader, who willmanage the political majority in the Houseof Representatives and also sit in the Cabi-net, thereby making him / her a very power-ful power broker in the party, the Cabinet andthe Parliament.

(v) The proposed retention of the parliamentarydoctrine of the collective responsibility of theCabinet to Parliament under these proposedhybrid arrangements will strengthen the po-litical power of the Majority Leader in theHouse of Representatives and reduce thePresident to a dependent role in the process.The President is not accountable as head ofthe Cabinet to Parliament seeing that he / shewill not be a member of the House of Repre-sentatives. The only person who can ensurethe implementation of that collective respon-sibility will be the Majority Leader in theHouse of Representatives who leads thatHouse and who is also a member of the Cabi-net.

Collective Responsibilityand the Hybrid

The constitutional doctrine of collective respon-sibility as it applies in parliamentary systems hasthree main rules which are (i) the confidence rule;(ii) the confidentiality rule; and (iii) the unanim-ity rule. Under this proposed hybrid, two of theserules, namely confidence and unanimity, can bebreached without fear of Cabinet disruption. How-ever, the Cabinet will have to depend upon theMajority Leaders in the House of Representativesand the Senate to uphold the unanimity rule sothat the Government will speak with only one

voice. As regards the confidence rule, the Major-ity Leader in the House of Representatives willhave to try and ensure that Government policy issupported in that House, however, as a power bro-ker, it is the Majority Leader and not the Presidentwho can effect compromises to policy and legis-lation given his / her control over party disciplinein the House.

This change will alter the way in which politicalparties will structure their legislative / parliamen-tary party arms as the Political Leader of a partymay or may not be the Majority Leader. Based onhow the Working Document has established theseparate roles of the President and the MajorityLeader there is unlikely to be any “maximumleader”. The concept of the “maximum leader” isa phenomenon of the parliamentary system thatcurrently exists, but will not exist under the pro-posed hybrid revisions.

In parliamentary systems, legislators who supportthe majority usually toe the party line so as to avoiddisrupting power arrangements for the Cabinet thatdepends upon the continued confidence of a ma-jority of elected legislators. Under this hybrid thatpromotes a greater separation of powers (by re-moving the President from Parliament), the fearof creating a Cabinet crisis is diminished and leg-islators will be free to treat with bills, motions,etc. in a more independent manner. The personthat the legislators who support the majority partywill have to fear will be the Majority Leader, andnot the President. Additionally, Ministers will befree to publicly disagree with one another as therewill be no fear of creating a Cabinet crisis as una-nimity will not have the same effect as under theexisting constitutional arrangements. The need fordiscipline in the Cabinet will be the task of thePresident. Seeing that most Ministers will comefrom outside of the Parliament, there will be noproblems in removing indisciplined Ministers.However, political problems may arise in the casesof Ministers from the House of Representativeswho are dismissed from, or who may resign, their

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ministerial portfolios as they may join others inthe House of Representatives who may not toe theparty line.

The invocation of the crossing-the-floor provisionsby the Majority Leader will lead to bye electionsin the first four years of the Parliament. Any re-versals in those bye elections for the party with amajority may lead to a Parliament controlled byanother party and a Cabinet dominated by the partythat previously had a majority in the Parliament.With this hybrid, the Cabinet will not collapse (aswould be the case under the doctrine of collectiveresponsibility under the present constitution). Allthat would happen is that the Parliament will con-tinue and the Cabinet will continue and they willhave to engage in constructive dialogue and com-promise in order to effect policy and legislativechanges. The President may decide to dissolveParliament, but that will also terminate the presi-dency as well.

The removal of the motion of no confidence thatapplies to the Prime Minister under the existingconstitution and the retention of the doctrine ofcollective responsibility will create a constitutionalconundrum. Instead of the motion of no confidence(which is the constitutional device that gives ex-pression to the confidence rule in the doctrine ofcollective responsibility in parliamentary systems),it is proposed to subject the new president to theimpeachment procedures for the presidency thatexist under the current constitution. This meansthat the confidence rule that applies to the doc-trine of collective responsibility will no longerexist, but the doctrine will still apply. By thismeans, power sharing can be effected with oneparty controlling the presidency and another partycontrolling the parliament if there is a hung par-liament. Outside of that, the President and theCabinet will have to account to the Parliament fortheir general direction and control of the affairs ofstate. The Working Document speaks about thePresident keeping Parliament fully informedthrough addresses to joint sittings of the House of

Representatives and the Senate (clause 102). Also,the Working Document speaks about Ministersbeing required to appear in either House to reporton the conduct of his / her duties as a Minister[clause 79(1)(c)].

The appointment of Ministers from outside ofParliament and a minority of Ministers from in-side of Parliament will greatly remove any dangerthat a lack of unanimity will bring for the Cabinet(unlike the dangers that would be posed under theexisting constitution). The requirement for allMinisters to belong to the Legislature (House ofRepresentatives or the Senate) in parliamentarysystems (which is the constitutional device thatgives expression to the unanimity rule in the doc-trine of collective responsibility in parliamentarysystems) will be altered in such a way that eitherpublic disagreement among Ministers or internaldivisions within the Cabinet will enhance thepower base of those Ministers who are also electedparliamentarians. Their possible dismissal willlead to their greater independence without over-throwing the President thereby creating legisla-tive management problems for the President andthe Cabinet. Party discipline in the House ofRepresentatives will be enforceable by theMajority Leader and not the President.

The retention of the provisions for the exercise ofpresidential powers under the existing constitu-tion for the proposed constitution will diminishthe powers of the President under this parliamen-tary – presidential hybrid. The requirement to havethe President act in accordance with the advice ofthe Cabinet will substantially reduce the level ofpresidential influence and power. In presidentialsystems, the Cabinet is advisory to the Presi-dent and the President acts in his / her owndeliberate judgment. This is not the case here.

In this hybrid, the President has to take his / herdirections from the Cabinet which will substan-tially alter the way in which power will be exer-cised. The majority vote of the Cabinet will bind

36


the President (as the President will now be a mem-ber of the Cabinet), unlike the current arrange-ments whereby the President (who is not a mem-ber of the Cabinet) acts on the advice of the PrimeMinister (who chairs the Cabinet and whose wordis accepted by the President regardless of the out-come inside the Cabinet).

The Presidency and the Hybrid

Presidential powers under this hybrid will be fur-ther reduced by the removal of the veto power inrespect of legislation that is currently available tothe President under the existing constitution. Theabsence of a veto power means that the Presidentmust enact whatever legislation is sent to him /her by the Parliament and such legislation will notbe alterable by the President as he / she will onlyhave a power to assent and not to veto. This willenhance the powers of the Legislature over theExecutive as any failure by the President to assentto legislation approved by Parliament will consti-tute a violation of the constitution if more thanfourteen days elapses after a Bill is presented tohim / her for assent.The political will has been expressed for a Presi-dent to be elected by indirect means through theHouse of Representatives as opposed to a directelection. The effect of the proposals are as fol-lows :

(a) each candidate for the office of President doesnot have to be the political leader of their partyand political parties are free to choose theirpresidential candidates by whatever meansthat will be acceptable to the Elections andBoundaries Commission;

(b) in cases where the presidential candidate of aparty does not win his / her seat but the partywins a majority, the political leader of thatparty shall choose another person as theirpresidential candidate from among its electedmembers for appointment as President;

(c) in cases where no party secures a majorityand / or none of the presidential candidateshave won their seats, there will be cross-partynegotiations to determine who should be rec-ognized by the Chairman of the Elections andBoundaries Commission for appointment asthe President;

(d) these proposed arrangements lend themselvesto power-sharing opportunities more so thanthe existing constitutional arrangements;

(e) the creation of a co-terminous presidency withthe House of Representatives implies that theuse of the power of dissolution by the Presi-dent also terminates the term of office of thePresident which diminishes the power of thePresident insofar as the President will haveno guarantee of being re-nominated by his /her party as their presidential candidate whichwill precede whether or not the party will winthe ensuing general election;

(f) the exercise of the power of prorogation bythe President on the advice of the Cabinet willprovide the President and the Cabinet an ad-vantage over Parliament to send it into a re-cess if the Parliament is hostile to the Execu-tive and this can only be overcome by the re-quirement to have a sitting once every sixmonths between one session and another.There will also be the requirement for thePresident to address a joint sitting of bothHouses of Parliament at least once per year.These two requirements may be combinedinto one; however, the requirements for theapproval of the Appropriation Act and theneed to avoid annulment of presidential noti-fications in the House of Representatives inrespect of appointments to a range of highoffices of State will put pressure on the Presi-dent and the Cabinet to avoid lengthy proro-gations or time the use of prorogation as adisabling tool against the Parliament;

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(g) this aspect of the hybrid at (f) will need to beclosely reviewed to determine the extent towhich the Parliament may enjoy some sepa-ration of powers on the subject of proroga-tion by the Executive.

The Senate

The proposed Senate will be nominated and secu-rity of tenure will be given only to those Senatorswho will be appointed to represent special inter-ests. Nothing will prevent any President from ap-pointing persons who are loyal to the party of thePresident as Senators to represent special inter-ests and they will only be removable by a motionpassed in the Senate. This can become controver-sial as it will be a matter of political trust.

The appointment of Senators by the President willobviously be done by presidential instrument withthe seal of the State, however, in the case of Sena-tors appointed on the advice of the Minority Leaderthey will be removable by a direct notification tothe President of the Senate from the MinorityLeader after their appointment. This will allowinsulation for the appointments of those Senatorssupportive of the Minority Leader to the extentthat the President cannot remove them by the useof State power.

However, as a general principle, the President ofthe Senate under this hybrid will now be giventhe power to declare a seat vacant before any ap-pointment can be made by the President or theMinority Leader in respect of filling a vacancy afterthe first appointments are made.

This power does not currently exist in relation tothe President of the Senate and, therefore, the needfor concurrence between the President and thePresident of the Senate will be required before asenatorial seat is declared vacant.

The Judiciary

The judicial provisions appear to mirror the de-velopments that have taken place in the UnitedKingdom insofar as the office of Lord Chancellorhas been substantially altered and there has beenthe creation of a Ministry of Justice. The effect ofthis hybrid is to separate the powers given to theChief Justice at independence to be both a juristand an administrator and leave the Chief Justicewith judicial powers and place the responsibilityfor the administrative powers in the hands of aline Minister of Justice who will be responsibleto Parliament for the administration of justice.

In the making of these changes in the United King-dom, there was a Concordat between the LordChief Justice and the Lord Chancellor that wasannounced in January 2004, the enactment of aConstitutional Reform Act in 2005, the creationof a Ministry of Justice in May 2007 and the com-mencement of Supreme Court of the United King-dom in October 2009.

Insofar as the Lord Chancellor (who is also theSecretary of State for Justice) and the Lord ChiefJustice were concerned, it was necessary for bothoffices to have a Concordat to govern their rela-tions. Given the comments of the Chief Justice ofTrinidad and Tobago at the opening of the 2009 /2010 Law term in September 2009 in Trinidad andTobago, this may be a useful tool to be pursued ifthe political will to have a Ministry of Justice isgoing to be sustained.

The matter of the need for reform in the Judiciarywas perhaps best made by Professor Selwyn Ryanwriting in his weekly column in the Sunday Ex-press on Sunday 13th February, 2005 under theheadline “Regime Change Needed in Judiciary”.He dealt with matters beyond the system itself.According to him :

“It is in fact now becoming clearer that what we

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seem to have done when we achieved indepen-dence in 1962 was to interweave the woolen wigof the colonizer with the ethnic hair of the tribes-man. We did it so ‘skillessly’ that the links betweenthe one and the other are there for all who haveeyes to see.” 2

Ryan argues that the problems in the Judiciary maynot be systemic, but instead ought to be viewed inthe context of the personalities. He goes further tosay :

“It is also clear that there continues to be a greatdeal of cronyism and jockeying for position withinthe judiciary and that the brethren are as dividedalong ethnic and personal lines as they have beenin the past.” 3

Such a scathing attack on the personnel of the Ju-diciary who dispense justice to the nation cannotbe ignored simply on the grounds of maintainingindependence of the judiciary. If this is what theframers of the independence constitution had in-tended, then what are we protecting ? Is the Judi-ciary as racially divided as Ryan makes it out tobe ? This is not a new position taken by Ryan aboutthe political positions adopted by judges. In writ-ing the biography of the late Sir Hugh Wooding,first Chief Justice of Trinidad and Tobago, Ryanhad this to say about the appointment of Mr. Jus-tice Isaac Hyatali as Chief Justice in July 1972 :

“There were some who felt that control of the high-est judicial office in the land had passed to some-one who was too partial to the concerns of theexecutive and that control of the highest judicialoffice in the land had been snatched from the handsof the group which had controlled it during thedecade following Independence and which hadestablished certain traditions which now appearedto be in danger. Those who defended the logic ofHyatali’s appointment note that he was appointedto the Appeal Court earlier than Clement-Phillipsand was thus senior, even if by a few minutes. Thiswas an argument that was not taken seriously by

Eric Williams and others who felt that senioritywas not a criterion one used to choose a ChiefJustice. It was also asserted that Phillips, thougha very brilliant lawyer, (some claim that he wasbetter than Wooding) was too eccentric (he wasknown to have a ‘mental’ problem) to be appointedChief Justice, a job which required its holder tobe the Chief Administrative Officer of the Judi-cial Branch. It was argued by the President of theBar Association, Gaston Johnson and others thatPhillips’ health would not stand up under thestrain. Fraser and Georges wanted Phillips to beChief Justice and it was understood that theywould have helped him to ‘arrange things’ when-ever necessary. Others felt that the real reasonfor Hyatali’s choice had to do with the fact that hewas regarded as being more politically pliable. Itwould however appear that in the final analysisthe critical factor was neither Clement Phillips’spoor health, the fact that he was not politicallypliable, the fact that his wife had annoyed Will-iams by lobbying for his appointment, or thatWooding had backed Phillips. Hyatali was ap-pointed as part of an ethnic package deal. Afterconsidering the Wooding / Procope proposal tosplit the responsibility of the job between a Chan-cellor and a Chief Justice or Hudson-Phillips’proposal to recall Ellis Clarke to occupy the post,Williams opted for Hyatali because he was an In-dian.” 4

Based on this account, one must ask whether amistake was made at independence in the way thatour judicial system was established ? Ryan assertedin 2005 that there was a mistake and he seems tosuggest that it is now necessary to unweave whathe calls the “woolen wig” from the “ethnic hair”.His link between ethnicity and judicial politics inTrinidad and Tobago is not a recent viewpoint andhis language is crystal clear. If that is so, then whatmust be done ?

Ellis Clarke indicated in his pre-independencememorandum of 16th April, 1962 (supra) that theoffice of Chief Justice that was created at inde-

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pendence was akin to that of the Lord Chancellorin Great Britain at that time. Since that time, GreatBritain has significantly revised the office of LordChancellor by separating the judicial functions ofthat office into the Lord Chief Justice (judicial)and Secretary of State for Justice and Lord Chan-cellor (political / administrative).

Can such a reform work here or are the woolenwig and the ethnic hair interminably interwoven ?

The Edinburgh Plan of Action andthe Independence of the Judiciary

The Edinburgh Plan of Action for the Common-wealth that was prepared at the end of the Com-monwealth (Latimer House) Colloquium held on6th and 7th July, 2008 at the Scottish Parliamentand presented to the Commonwealth Law Minis-ters meeting in Edinburgh in July 2008, in recall-ing the Commonwealth (Latimer House) Prin-ciples (CLHP) that were endorsed at the Common-wealth Heads of Government Meeting in Abuja,Nigeria in 2003, advocated the following in re-spect of the Judiciary :

“1.3 Independence of the Judiciary

‘Adequate resources should be provided for thejudicial system to operate effectively withoutany undue constraints which may hamper theindependence sought.’ (CLHP –IV.3)

ACTION:The allocation of resources by Parliament, for thejudiciary and the running of the courts, should bemade following consultation between the Head ofthe Judiciary and the relevant minister.

Appropriate dispute resolution mechanisms shouldbe put in place to deal with any disputes arisingin relation to the allocation of resources.

There remain jurisdictions where adequate re-sources have not been made available for judicial

training, including training on basic constitutionalissues. Such resources should be made availableand programmes established for judicial trainingunder the control of the Head of the Judiciary.” 5

While the Edinburgh Plan of Action for the Com-monwealth envisages consultation between theHead of the Judiciary and the relevant Minister ofGovernment responsible for the running of thecourts before Parliament approves resources forthe judiciary, the fundamental premise of the ar-gument is that the judiciary must be given adequateresources for it to function so as not to compro-mise the independence of the judiciary.

The Edinburgh Plan of Action goes further to say:

“2.3 Judicial accountability and confidence build-ing

‘Judges are accountable to the Constitution andto the law which they must apply honestly, inde-pendently and with integrity.’ (CLHP VII- b)

ACTION:The Heads of the Judiciary should submit regularreviews to Parliaments on the financing and ad-ministration of the courts.

The judiciary should continue to develop and re-view their codes of conduct/ethics on a regularbasis.

Information on the complaints and disciplinaryprocedures in relation to judicial misconductshould be publicly available.” 6

The Edinburgh Plan of Action is envisaging a levelof functional cooperation between the Judiciaryand Parliament and the Judiciary and the Execu-tive, on the one hand, and the Judiciary and thepublic, on the other hand, which will promote con-fidence building in the public domain. TheEdinburgh Plan of Action was submitted to Com-monwealth Law Ministers for consideration at

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their Meeting in Edinburgh over the period 8th –11th July, 2008.

According to the Communiqué issued at the endof the Commonwealth Law Ministers meeting inEdinburgh in July 2008 at paragraph 7 :

“7. The latter paper provided the basis for theHigh Level Panel deliberations, which coveredmany important contemporary issues relating tothe diverse challenges facing the rule of law, in-cluding the central role of the Justice Minister indefending the independence of the judiciary, fa-cilitating international cooperation in the light ofdiffering legal regimes and governmental struc-tures, and strengthening the interaction of LawMinistries with other stakeholders in the devel-opment and implementation of legal policy.” 7

The question of a Minister of Justice relating to aChief Justice has been accepted at various fora inthe Commonwealth as means of carrying out theadministration of justice. This will become a mat-ter on which further deliberation and consultationis likely to take place based on the experiences inother Commonwealth countries. The reforms inthe United Kingdom with regard to the Lord Chan-cellor and Secretary of State for Justice, on theone hand, and the Lord Chief Justice, on the otherhand, was the subject of extensive review by aSelect Committee of the House of Lords. 8

General Comments

It is possible that this attempted move away frommaximum political leadership towards power-sharing and consociational democracy may causesome disquiet in the public domain because theanalysis of it may be personalized and the famil-iarity with other constitutional norms may limited.Further comments and discussion may help toenhance the thinking on, and development of, aparliamentary-presidential hybrid that sharespower as opposed to concentrating it.

NOTES

1. Hansard, House of Representatives, 9th January, 2009,Vol. 8, Session 2009, p. 35.

2. Sunday Express, 13th February, 2005, p. 11.

3. Sunday Express, 13th February, 2005, p. 11.

4. Selwyn Ryan, The Pursuit of Honour : The Life andTimes of H.O.B. Wooding, ISER, UWI, St. August-ine, 1990, pp. 223 – 224.

5. “The Edinburgh Plan of Action for the Common-wealth” prepared by the Commonwealth (LatimerHouse) Colloquium, held at the Scottish Parliament, 6– 7 July, 2008, para. 1.3.

6. “The Edinburgh Plan of Action for the Common-wealth” prepared by the Commonwealth (LatimerHouse) Colloquium, held at the Scottish Parliament, 6– 7 July, 2008, para. 2.3.

7. Commonwealth Law Ministers Meeting Communiqué2008, (Commonwealth Secretariat, London, July2008), para.7.

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

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The independence draft constitution was first pub-lished for public comment on 19th February, 1962and subsequently on 10th March, 1962, the Sec-retary to the Cabinet, Alan Reece, issued invita-tions to civil society groups to offer their com-ments on the draft at a meeting of commentatorson the draft constitution that was to be held atQueen’s Hall from 25th to 27th April, 1962. Fol-lowing that, there was a Joint Select Committeeof the Parliament on the draft constitution that satbetween 9th and 16th May, 1962. This was fol-lowed by the Marlborough House Conference inLondon from 28th May to 8th June, 1962 to dis-cuss the draft constitution. After that, the final draftwas prepared and Trinidad and Tobago becameindependent on 31st August, 1962. The consulta-tion period for the independence constitution onlylasted from 19th February to 8th June, 1962. Af-ter that the final draft was prepared in London intime for the celebration of Independence Day on31st August, 1962.

In the case of the 1976 republican constitution, aConstitution Commission, under the chairmanshipof Sir Hugh Wooding, a retired Chief Justice ofTrinidad and Tobago, was announced in theThrone Speech read by the Governor-General, SirSolomon Hochoy, at the opening of Parliament on18th June, 1971. The Prime Minister, Dr. EricWilliams, had to employ this method because theParliament that assembled on 18th June, 1971 af-ter the general election of 24th May, 1971 did nothave any opposition members. In the circum-stances, Williams had to use the Commission ofInquiry as an alternative technique for consulta-tion.

That Commission reported in January 1974 and

Williams disputed most of their report in his con-tribution to the House of Representatives in De-cember 1974 when the documents were laid inParliament. He subsequently appointed Mr.Wilfred Mc Kell, the then Director of PersonnelAdministration, to receive comments on the con-stitution in 1975, this was followed by a Joint Se-lect Committee of Parliament and then the newconstitution was enacted in 1976 before the dis-solution of Parliament for the general elections ofthat year. The period of consultation started in 1971and ended in 1976.

The current exercise for the review of the 1976republican constitution (the existing constitution)started in 2006 and involved the establishment ofa Round Table of scholars, technocrats and Min-isters that considered two draft constitutions – theEllis Clarke draft and the Principles of Fairnessdraft (both produced in 2006). There were nation-wide public consultations co-chaired by Profes-sors Selwyn Ryan and John La Guerre in 2006and 2007, further discussions within the RoundTable in 2007 that were adjourned for the holdingof the 2007 general election and resumed in 2008with an additional member. Discussions contin-ued throughout 2008 and a Working Documentwas laid in the House of Representatives in Janu-ary 2009.

Nationwide public consultations are to be heldagain in 2009 and 2010 on the Working Docu-ment before a report is submitted to the Govern-ment for their consideration. After that, it is pro-posed that a Green Paper will be produced by theGovernment as an official statement of their policyand any future activities beyond that will be an-nounced by the Government.

Part Three

Comparison with the Existing Constitution

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The Working Document and the existing Consti-tution will now be compared in a simple, but notsimplistic manner.

Preamble and Preliminary

The Preamble has remained the same as in theexisting Constitution except for the change of theword “community” which has been replaced bythe word “society” in line three of clause (b). Theeffect of this change appears to be more broad-based.

The Preliminary clauses remain the same inclauses 1 and 2. Clause 3 adds ten new words tothis interpretation section. These new words forwhich definitions are provided are (i) “Act”; (ii)“Caribbean Court of Justice”; (iii) “Government”;(iv) “House of Assembly”; (v) “Local Governmentbody”; (vi) “Minority Leader”; (vii) “Minister”;(viii) “President”; (ix) “Senator”; and, (x) “State”.Clause 3 also removes two words from the exist-ing Constitution, namely “the Commonwealth”and “Judicial Committee”.

In the case of the removal of the words “JudicialCommittee”, it is apparent that inclusion of thenew words “Caribbean Court of Justice” will bein conflict with “Judicial Committee” as the po-litical intention of the Working Document is toreplace the Judicial Committee of the Privy Coun-cil with the Caribbean Court of Justice.

As regards the omission of the words “the Com-monwealth” from the Working Document, it isdifficult to assess whether this was an oversightor whether the draftsman felt that the provisionsof Chapter Two, in general, or clause 30, in par-ticular, of the Working Document were adequatefor a definition of the Commonwealth.

Insofar as the definition of the word “law” in clause3 of the Working Document is concerned, there isa change from the existing Constitution. Thechange can be seen as follows :

Existing Constitution : “law” includes any enact-ment, and any Act or statutory instrument of theUnited Kingdom that before the commencementof this Constitution had effect as part of the lawof Trinidad and Tobago, having the force of lawand any unwritten rule of law.

Working Document : “law” includes any writtenand unwritten law, and any Act of Parliament orstatutory instrument of the United Kingdom thatbefore the commencement of this Constitution haseffect as part of the law of Trinidad and Tobago.

This may be a matter of some debate as regardsthe re-arrangement of the words “unwritten ruleof law” at the end of the sentence in the existingConstitution into “unwritten law” at the com-mencement of the sentence in the Working Docu-ment.

Chapter One - The Recognitionand Protection of FundamentalHuman Rights and Freedoms

Part One

Part One of Chapter One has retained essentiallythe same intent as the existing Constitution; how-ever, there are expansions in the application of therights and freedoms when compared to the exist-ing Constitution which has followed the model ofthe Canadian Bill of Rights 1960.

The expansions in the Working Document seemto lean somewhat in the direction of the EuropeanConvention on Human Rights 1950 model by theinclusion of some prohibitions against infringe-ments. This may be seen as a hybridization of theBill of Rights in an attempt to expand what it of-fers the citizen by way of the recognition and pro-tection of fundamental human rights and freedoms.

These expansions may be categorized as follows :

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(a) The use of the word “Everyone” at the be-ginning of clauses 5 to 10 and 12 to 16 makesclear to whom these clauses are applicable;

(b) clauses 5 and 6 are an expansion of section4(a) of the existing Constitution;

(c) clause 7 expands section 4(b) of the existingConstitution to provide for the “equal pro-tection of the law” which is not expresslystated in the existing Constitution;

(d) clause 9 expands the recognition and protec-tion afforded everyone in respect of their pri-vate and family life in section 4(c) of the ex-isting Constitution to include their home andcorrespondence, while including a denialclause against unreasonable search or seizure;

(e) clause 10 expands the provisions of section4(e) of the existing Constitution by includ-ing the right to make political choices;

(f) clause 11 is expanded to permit a parent orguardian to obtain access to educational fa-cilities for his child or ward over and abovethe existing provisions in section 4(f) thatrelate only to the provision of a school of hischoice for the education of his child or ward;

(g) clause 13 is expands section 4(h) of the ex-isting Constitution by including a denialclause against the advocacy of hatred, ridi-cule or contempt in the pursuance of theirright to enjoy freedom of conscience and re-ligion. Religious belief and observance in theexisting Constitution have been combinedinto “freedom of religion” in the WorkingDocument;

(h) clause 14 expands section 4(i) of the existingConstitution by including a denial clauseagainst the advocacy of hatred, ridicule orcontempt in their pursuance of their right toenjoy freedom of thought and expression.

This freedom is further expanded in the Work-ing Document to include freedom of beliefand opinion which is not present in the exist-ing Constitution;

(i) clause 15 imposes a restraint upon the provi-sions of section 4(j) of the existing Constitu-tion by restricting freedom of association to“lawful purpose”, while leaving freedom ofassembly untouched;

(j) clause 16 expands freedom of the press fromthe provisions of section 4(k) in the existingConstitution by including “other media ofcommunication”, while simultaneously im-posing a denial clause against the advocacyof hatred, ridicule or contempt in the pursu-ance of this freedom;

(k) clause 18 is a saving clause for any existingright or freedom on the ground that if it is notincluded in the Working Document or is onlyincluded in a part of Chapter One of the Work-ing Document, then it is protected from ab-rogation, abridgement or infringement.

Part Two

Part Two of Chapter One is designed in a mannersimilar to the existing Constitution insofar as itcontinues to make provision for “Exceptions forExisting Law” . The significant alteration is theincorporation of the provisions of section 5(1) and5(3) from the Constitution of the Republic ofTrinidad and Tobago Act (Act No. 4 of 1976) intothe provisions for the “Savings for existing law”clause in the Working Document.

The effect of this is to permit all laws in force atthe commencement of the new Constitution (theexisting laws) to continue being in force, whileproviding for them to be construed with suchmodifications, adaptations, qualifications and ex-ceptions as may be necessary to bring them intoconformity with the new Constitution.

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Part Three

Part Three of Chapter One retains essentially thesame provisions for the “Exceptions for Emergen-cies” as are to be found in the existing Constitu-tion. There are two alterations to those provisions.

The first is to be found in clause 24(1) of the Work-ing Document where the qualifications for the at-torney-at-law who is to preside over a detentiontribunal are specified. These qualifications are thatthe attorney-at-law must have been qualified forten years and must be practicing in Trinidad andTobago.

The second is to be found in clause 25(1) of theWorking Document whereby the publication of theexistence of a state of emergency and related docu-ments where it is impracticable or inexpedient topublish such notifications in the Gazette, they mayalso be brought to the attention of the public byany other means seeking to reach the widest pub-lic. This is in addition to the existing provisionswhereby such documents may be affixed to pub-lic buildings, distributed amongst the public, andannounced orally in the public.

Parts Four and Five

Part Four (Exceptions for Certain Legislation) andPart Five (General - that relates to the enforce-ment of the protective provisions) of the WorkingDocument remain essentially the same as in theexisting Constitution.

Chapter Two – Citizenship

The provisions of Chapter Two relating to citi-zenship have remained essentially the same as inthe existing Constitution with the following twoexceptions :

(a) provision is made in clause 32(d) of the Work-ing Document for former citizens of Trinidad andTobago to be able to re-acquire their citizenship;

(b) provision is made in clause 33(2) of the Work-ing Document for persons born outside of Trinidadand Tobago to assume the citizenship of theirmothers in cases where they are born aboard a reg-istered ship or aircraft or an unregistered ship oraircraft or the aircraft of the government of anycountry.

Chapter Three – The Presidency

Chapter Three of the Working Document repre-sents the most fundamental area of change fromthe existing Constitution. It alters the premise ofthe presidency by substituting the House of Rep-resentatives for the Electoral College in the methodof election. The effect of this change is to retainthe method of indirect election of the Presidentby the Parliament with the significant alterationthat the will of the majority of the elected repre-sentatives of the people will not compete with thenominated Senators for the election of the Presi-dent.

In the circumstances, it expects the presidency tobe filled by one of the members of the House ofRepresentatives and that such a person must havebeen designated by their political party as theirpresidential candidate among all of their othercandidates prior to the general election. That presi-dential candidate (once so designated) will alsohave an alternate candidate standing for electionwith them in their constituency. The purpose ofthat alternate candidate is to fill any vacancy inthe constituency that may arise if the presidentialcandidate wins his / her seat and is subsequentlyelected President.

The effect will be to ensure that there is no needfor a bye election in that constituency while satis-fying the need to remove the President from theHouse of Representatives to ensure a separationof powers between the President and the Parlia-ment.

Provision is made for the office of Vice–President.

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The person holding this office will be selected bythe President from among members of the Houseof Representatives or the Senators and can be re-moved from office by the President in his / herdiscretion. There is a prohibition clause [39(3)] inthe Working Document which prevents the Presi-dent from appointing the Vice-President as theMajority Leader in either the House of Represen-tatives or the Senate.

The Vice-President shall act temporarily as Presi-dent in cases where the President is incapable ofperforming the functions of the presidency by rea-son of absence or illness or otherwise. In caseswhere the Vice-President is unable to assume theseduties, the President shall appoint another mem-ber of Parliament to act temporarily as President.

In cases where the Vice-President is required toperform the functions of the office of President,the Vice-President shall temporarily cease to per-form his / her functions as a member of the Houseof Representatives or the Senate and shall resumethose functions upon ceasing to act as President.

The Vice-President shall vacate his / her office incases where (i) someone else is appointed Vice-President, (ii) he / she is appointed President orre-appointed as Vice-President after a dissolutionof Parliament, or (iii) loses their qualifications tobe a member of the House of Representatives orthe Senate as the case may be.

The President is to be elected by an actual major-ity vote in the House of Representatives in caseswhere no political party wins a majority of seatsand two or more parties join to secure a majorityand they fail to elect from among themselves amember to be the President. The Speaker of theHouse of Representatives will preside over thiselection.

There will be a vote among the elected membersof a party that wins a majority of seats in the Houseof Representatives after a general election where

its presidential candidate loses his / her seat andthe political leader of that party fails to designateanother elected member of his / her party as itspresidential nominee for appointment by the Chair-man of the Elections and Boundaries Commission.The Speaker of the House of Representatives willpreside over this election.

In cases where the elected members of the major-ity party or the elected members of the parties thathave joined together to secure a majority fail toelect someone from among them to become thePresident, then the Speaker will select an electedmember from among those of the majority partyor the parties that joined together to secure a ma-jority to be appointed as the President. In exercis-ing this power, the Speaker will choose the electedmember who in his opinion is most likely to com-mand the support of the majority of the membersof the House of Representatives and who is will-ing to be the President.

In the circumstances where the elected memberwho is appointed President was not a designatedpresidential candidate of any of the political par-ties, then it will be necessary to hold a bye elec-tion in the constituency for which that memberhad been elected.

Once a President is elected that President shallassume office upon the expiration of fourteen daysafter his / her election.

A second general election will have to be held incases where no political party or coalition of par-ties can secure a majority and there is no quorumof the House of Representatives after two occa-sions to try to elect a President. Such a generalelection will be held within thirty-five days of thedissolution of Parliament which must be done bythe President in office within five days of receiv-ing correspondence from the Speaker to this ef-fect.

The term of office of the President is linked to the

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election of a successor President. In the circum-stances, there is no vacancy in the office of Presi-dent and the onus is on the members of the Houseof Representatives to elect a President from amonga majority of themselves in order for the term ofoffice of one President to end and the term of of-fice of another President to begin.

Provision is made for the President to vacate his /her office in cases of death, resignation, impeach-ment, election of someone else as President, orloss of qualifications to be elected as a member ofthe House of Representatives.

The immunities of the presidency remain the sameas in the existing Constitution and the determina-tion of questions as to the election of the Presi-dent have been consequentially modified to reflectthe roles of the Chairman of the Elections andBoundaries Commission and the Speaker of theHouse of Representatives in the certification ofthe election of the President.

Chapter Four – Parliament

Chapter Four of the Working Document retainsthe Parliament of Trinidad and Tobago as consist-ing of the President, the Senate and the House ofRepresentatives.

The Senate

The size of the Senate is increased from thirty-one in the existing Constitution to thirty-seven inthe Working Document. All appointments to theSenate will be made by the President using thefollowing formula (i) nineteen in his / her owndiscretion; (ii) seven on the advice of the Minor-ity Leader; (iii) eleven after consultation with vari-ous interest groups and organizations with a re-quirement that a representative shall be appointedfrom the following sectors : business, labour, theenvironment, the village council movement, theenergy sector, and finance. There is also a specialrequirement that two Senators from Tobago must

be appointed after consultation with the TobagoHouse of Assembly.

The tenure of office of Senators has been revisedin the Working Document when compared to theexisting Constitution. Provision is now being madein the Working Document at clause 57 for thePresident of the Senate to declare the seat of aSenator vacant. Under the existing Constitutionat section 43(2), the President of the Republicdeclares the seat of a Senator vacant. The Work-ing Document divides the termination of officeinto three categories, namely, (i) the President toadvise the President of the Senate of the appoint-ment of a new Senator in respect of the nineteenSenators that he / she can appoint in his / her dis-cretion and the President of the Senate declaresthe seat vacant; (ii) the Minority Leader to advisethe President of the Senate that a new Senator isto be appointed and the President of the Senatedeclares the seat vacant; and (iii) a motion for theremoval of any of the eleven Senators appointedis passed by the Senate and the President of theSenate declares the seat vacant.

No new appointments can be made by the Presi-dent if the President of the Senate does not de-clare the seat of a Senator vacant. No provision ismade for the resolution of a difference of opinionbetween the President and the President of theSenate so that all Senators appointed at the dis-cretion of the President, once appointed, can onlybe removed if there is concurrence between thePresident and the President of the Senate for theremoval. Those Senators appointed by the Minor-ity Leader can only be removed if there is concur-rence between the Minority Leader and the Presi-dent of the Senate. As regards those Senators ap-pointed by the President to represent various spe-cial interests, the President of the Senate will berequired to concur with a majority of the Senateto declare the seat of such a Senator vacant after amotion for his removal has been passed.

In respect of the tenure of the President of the Sen-

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ate, he / she will have to agree to declare his / herown seat vacant if any replacement Senator is tobe appointed in his / her place.

Additionally, the President of the Senate is beinggiven the power to appoint temporary Senators onthe advice of the President or the Minority Leaderas the case may be.

The provisions regarding the qualifications anddisqualifications for the appointment of Senatorsin the Working Document are comparable to theexisting Constitution.

The provisions regarding the election and func-tioning of the President of the Senate and the Vice-President of the Senate are comparable to the ex-isting Constitution.

The House of Representatives

The composition, manner of election, and tenureof members of the House of Representatives inthe Working Document are comparable to the ex-isting Constitution with one major difference. Theenforcement of the “crossing-the-floor” provisionsin clauses 63(2)(e) and 64(1) in the Working Docu-ment place the responsibility for enforcement andparty discipline with the Majority and MinorityLeaders, as the case may be, of the members whohave either resigned from, or been expelled, bytheir parties.

When compared to the existing Constitution, thedifference is that a party with a majority may losethat majority if there are enough dissenting M.P.swho cease to perform their functions by virtue ofthe declaration of the Speaker that they have re-signed from or been expelled by their party. Un-der the existing Constitution, this would cause theGovernment to fall. Under the Working Document,the President and the Cabinet will not lose office,but would not be able to count on a majority ofsympathetic M.P.s for support and this will createthe need for consensus government for measures

to be passed in the House of Representatives asthat would be the only way to secure a majority,pending the holding of bye elections if the legalchallenges go against the dissenting M.P.s. Theoutcome of the bye elections can also change thecomposition of the House of Representatives.

In the case of the Minority Leader, the control ofthe elected members in the House of Representa-tives from his / her party could also face the samechallenges. If there are any third parties in theHouse of Representatives, these provisions willnot apply to them.

The provisions regarding the Speaker and theDeputy Speaker are comparable to the existingConstitution.

Powers, Privileges andProcedure of Parliament

The entrenchment provisions are applied with thesame methodology of permitting amendments tothe Constitution with (i) simple majorities in bothHouses of Parliament, (ii) a two-thirds majorityin both Houses of Parliament; and (iii) a three-quarters majority in the House of Representativesand a two-thirds majority in the Senate.

Under clause 73 of the Working Document, theMinority Leader (known as the Leader of the Op-position under the existing Constitution) has beengiven the right to set the Order Paper of each Houseonce per month on a date agreed upon by the Presi-dent.

The quorum for each House has been increased inthe Working Document to fifty percent of themembership of each House owing to the removalof the person presiding from the reckoning of thesize of the quorum.

The President is required only to assent to Billspassed by Parliament as the veto power held bythe President in the existing Constitution has been

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abolished by the Working Document. A maximumperiod of fifty-four days can elapse between pas-sage of a Bill by Parliament and its compulsoryassent by the President.

Ministers will continue to have a right of audi-ence in either of the Houses of Parliament as pro-vided in the existing Constitution. However, withonly four out of forty-one M.P.s being Ministersin the House of Representatives and four out ofthirty-seven Senators being Ministers, the Work-ing Document makes provision for the Presidentof the Senate or the Speaker to require Ministersto appear before either House, as the case may be,to report on their performance as Ministers.

In the Working Document, the House of Repre-sentatives continues to be dominant over the Sen-ate in respect of the passage of Money Bills andother Bills as is expressed in the existing Consti-tution.

Certain Joint Select Committees

The Departmental Joint Select Committees thatwere created in 1999 by way of constitutionalamendment in the existing Constitution at section66A are expanded in the Working Document atclause 84 to also include scrutiny of GovernmentDepartments and Local Government bodies, For-eign Affairs, Energy and Public Accounts over andabove what prevails in the existing Constitution.

These Joint Select Committees are also empow-ered in the Working Document to examine theannual reports of these bodies to determine whenthey were submitted and to question the relevantpersons about their contents and seek explanationsfor any delays in submission.

Summoning Prorogationand Dissolution

The provisions in the Working Documenton summoning, prorogation and dissolution of

Parliament remain comparable to the existingConstitution.

Elections and BoundariesCommission

The provisions in the Working Document withregard to the Elections and Boundaries Commis-sion are comparable to the existing Constitutionin language, but not effect. The President is nolonger an impartial arbiter, but rather an electedmember of the House of Representatives (in thefirst instance) and the Chairman of the Electionsand Boundaries Commission has a new role inrespect of the appointment of the President.

At the same time, the Commission is given thepower to adjudicate on all election matters andtogether with this has been made the subject ofjudicial review in clause 93 of the Working Docu-ment.

The System of Balloting

The first-past-the-post system of balloting for theHouse of Representatives in the existing Consti-tution is retained in the Working Document.

Chapter Five – Executive Powers

Chapter Five of the Working Document representsanother fundamental area of change from the ex-isting Constitution. The office of Prime Ministeris abolished and the executive authority of Trinidadand Tobago is vested in the President and the Presi-dent is now made a part of the Cabinet. The prin-ciple of collective responsibility of the Cabinet toParliament is retained, while the essential officersin the Cabinet that constitute a Cabinet are ex-panded from just the Prime Minister, the AttorneyGeneral and another Minister in the existing Con-stitution to the President, the Vice-President, theAttorney General, the two Majority Leaders fromboth Houses of Parliament and at least one other

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Minister. The outer size of the Cabinet is cappedat twenty-five Ministers.

The Working Document provides, at clause 97,that the Ministers will largely be drawn from out-side of Parliament as only four Ministers can beappointed from the members of the House of Rep-resentatives and four Ministers can be appointedfrom the Senate. The qualifications to be appointedas Ministers are those of persons who are quali-fied to be elected to the House of Representatives.

In the allocation of portfolios to Ministers, theWorking Document, at clause 99(2), prescribesthat a member of the Senate or of the House ofRepresentatives shall be appointed Minister ofJustice and that the responsibility of that portfolioshall include such administrative matters relatingto the Judiciary as may be prescribed.

The Working Document retains the provisions ofthe existing Constitution that the President shallact on the advice of the Cabinet or a Minister act-ing under the general authority of the Cabinet. TheWorking Document also retains the exceptions tothese provisions, namely (i) in his / her discre-tion, (ii) after consultation with any person or au-thority other than the Cabinet, and (iii) on the ad-vice of any person or authority other than the Cabi-net.

The effect of this is that the President will takeinstructions from Ministers, except where other-wise provided.

The Working Document requires the President tokeep Parliament fully informed concerning thegeneral conduct of the Government and he / sheshall do so at least once per year by way of anaddress to a joint sitting of Parliament.

The Working Document provides that the Presi-dent shall appoint Majority Leaders in the Houseof Representatives and the Senate in his / her owndiscretion.

Provision is made in the Working Document forthe Speaker of the House of Representatives toappoint a Minority Leader in the House of Repre-sentatives after an election is held among thosemembers of the House who do not support theGovernment and one of those members wins thegreatest number of votes cast. This provision isbased upon a pre-existing parliamentary premisewhere the majority in the House of Representa-tives and the Government were one and the same.In the provisions outlined in the Working Docu-ment, it is possible for a majority of members inthe House of Representatives to be opposed to theGovernment and the Government will not be injeopardy of falling.

Permanent Secretaries

The Working Document introduces the conceptof the appointment of Permanent Secretaries oncontract by the Public Service Commission sub-ject to the concurrence of the President at clause105. This is a departure from the existing Consti-tution which confines the choices for the appoint-ment of Permanent Secretaries to the public ser-vice alone. These new provisions permit the ap-pointment of permanent secretaries from either thepublic or private sectors on contract.

The Power of Pardon

The power of pardon in the Working Documentremains comparable to the existing Constitutionexcept for the Minister designated for pardonsappointed on the advice of the Prime Ministerbeing replaced by the President himself / herself.Additionally, the Attorney General is proposed asthe new Chairman of the Advisory Committee onthe Power of Pardon thereby replacing the Minis-ter designated for pardons who was previouslyappointed on the advice of the Prime Minister.

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Chapter SixThe Director of Public

Prosecutions and the Ombudsman

The relationship between the Attorney General andthe Director of Public Prosecutions is not clearlyspelt out in the existing Constitution in respect ofthe extent to which the Director of Public Pros-ecutions falls under the ministerial responsibilityof the Attorney General insofar as direction andcontrol are concerned.

Clause 110 of the Working Document attempts toclarify this ambiguity by specifying that the Di-rector of Public Prosecutions shall exercise his /her powers and discharge his / her functions inmatters involving official secrets, terrorism andState-to-State relations with the prior approval ofthe Attorney General. In respect of criminal pro-ceedings, the Director of Public Prosecutions shallact in his / her discretion.

To this end, the Working Document requires theDirector of Public Prosecutions to submit to theAttorney General, before 31st August each year,an annual report on the administration of his / heroffice, the exercise of his / her powers and thedischarge of his / her functions and the AttorneyGeneral shall cause the report to be laid beforeeach House of Parliament within sixty days.

The Working Document changes the method ofappointment of the Ombudsman from what ob-tains in the existing Constitution by requiring thePresident to consult the Minority Leader, theSpeaker of the House of Representatives and thePresident of the Senate before making the appoint-ment.

Provision is made in the Working Document forthe Ombudsman to hire staff other than publicofficers for the performance of the duties of theoffice which is a change from the existing Consti-tution. Other changes from the existing Constitu-tion include decisions of Service Commissions in

respect of complaints made by public officerswhich can be reviewed and the Ombudsman mayalso investigate any inaction therefrom.

Another proposed reform is that special reportsby the Ombudsman shall be presented before aJoint Select Committee of Parliament and thatCommittee shall consider the report and recom-mend to Parliament the urgent consideration ofthe matters in the report and the steps it shouldtake to address the issues set out in the report.

Permanent Secretaries will be required to providethe Ombudsman with reasons for any omission ordecision that gave rise to a complaint and the Per-manent Secretary shall forward the reasons to theOmbudsman within twenty-one days of receivingthe request.

It is further proposed in the Working Documentthat the Ombudsman be permitted to examineCabinet documents, or confidential income taxdocuments in relation to any complaint and thatsuch an examination shall take place where thosedocuments are held.

Chapter Seven – The Judicature

Chapter Seven of the Working Document repre-sents another area of fundamental change insofaras a separation between the judicial and adminis-trative functions of the Chief Justice is proposed.It appears that the model for this has been drawnfrom the recent reforms (that had been agreed since2005) in the United Kingdom under their Consti-tution Reform Act 2005 which fundamentally al-tered the office of Lord Chancellor and led to thecreation of a Ministry of Justice in May 2007headed by the Secretary of State for Justice andthe assumption of office of a Supreme Court inOctober 2009 headed by the Lord Chief Justice.The Working Document proposes a change fromthe existing Constitution whereby the Chief Jus-tice would now be required to submit an annualreport to the President on 1st August every year on

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the judicial functioning of the Judiciary. The Ju-dicial and Legal Service Commission will still berequired to report to Parliament in the manner pre-scribed in the existing Constitution, however, theChief Justice will no longer be the chairman ofthat Commission.

The Working Document also creates the office ofPermanent Secretary to the Judiciary which is pro-posed to be appointed by the Public Service Com-mission after consultation with the Chief Justiceand with the concurrence of the President. Theintention is for this Permanent Secretary to act asthe public functionary between the Governmentand the Judiciary and shall report to the Ministerof Justice.

The Working Document seeks to empower Par-liament to confer on any court any part of the ju-risdiction of the High Court and any of the pow-ers of the High Court under the Constitution orany other law. It is also proposed to confer on theChief Justice the power to designate any PuisneJudge as a Justice of Appeal and vice versa.

The Working Document changes the method ofappointment of the Chief Justice to include a re-quirement for the President to consult the Minor-ity Leader and the President of the Law Associa-tion before making a nomination to the office andissuing a Notification which shall be subject tothe negative resolution of the House of Represen-tatives and the President will be required to waiton the vote in the House of Representatives be-fore making the appointment.

The Chief Justice will no longer serve as the Chair-man of the Judicial and Legal Service Commis-sion, however, he / she will be responsible for thegeneral business and administration of the Su-preme Court, while subject to that, the Ministerof Justice will have control of administrative mat-ters relating to the Judiciary and, in the exerciseof those powers, the Minister of Justice shall first

consult the Chief Justice.

The Working Document proposes the abolition ofappeals to the Judicial Committee of the PrivyCouncil and replaces that with the Caribbean Courtof Justice as the final court of appeal for Trinidadand Tobago.

The composition of the Judicial and Legal Ser-vice Commission is proposed to be changed toexclude the Chief Justice and to include at leasttwo and not more than three lay members amongits seven members. All of these appointments willbe subject to a negative resolution of the House ofRepresentatives of the Notification issued by thePresident before the appointments can be made.

The procedure for the removal of the Chief Jus-tice is comparable with the existing Constitutionexcept for the requirement that the President mustconsult the Minority Leader and the President ofthe Law Association before appointing a tribunalto investigate the Chief Justice. In respect ofJudges other than the Chief Justice, the Presidentwill act in accordance with the representation madeto him / her by the Judicial and Legal ServiceCommission. The tribunal for investigating theChief Justice will consist of a chairman and notless than two other members appointed by thePresident after consultation with the MinorityLeader and the President of the Law Association,while the tribunal investigating judges other thanthe Chief Justice will consist of a chairman andnot less than two other members appointed by thePresident after consultation with the Judicial andLegal Service Commission.

The suspension of the Chief Justice or of a judgeother than the Chief Justice may be effected bythe President after consultation with the MinorityLeader and the President of the Law Association(for the Chief Justice) and after consultation withthe Chief Justice in the case of the other judges.

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Such suspensions may be revoked by the Presi-dent after consultation with the Minority Leaderand the President of the Law Association (in thecase of the Chief Justice) and after consultationwith the Chief Justice (in the case of other judges)before the tribunals have reported.

Chapter Eight – Finance

The provisions of Chapter Eight of the WorkingDocument on Finance are comparable with theexisting Constitution except for the method ofappointment of the Auditor General and the chair-men of the Public Accounts Committee and Pub-lic Accounts (Enterprises) Committee.

The Auditor General shall be nominated by thePresident after consultation with the MinorityLeader and a Notification shall be issued by thePresident which shall be subject to the negativeresolution of the House of Representatives. ThePresident will only make the appointment if theNotification has not been annulled by the Houseof Representatives.

The chairman of the Public Accounts Committeeshall be chosen from among the members of theHouse of Representatives who do not support theGovernment, if any and if willing to serve. Whereno such member is willing to serve, then a Sena-tor who does not support the Government will beappointed as chairman. If such a Senator is un-willing to serve, then a Senator will be appointedchairman.

The chairman of the Public Accounts (Enterprises)Committee shall be chosen from among the Sena-tors who do not support the Government. Wherethere is no such Senator, then a member of theHouse of Representatives who does not supportthe Government can be appointed and if no suchmember is willing to serve, then a Senator will beappointed chairman.

Chapter NineAppointments to,

and Tenure of Offices

Service Commissions

The Working Document proposes changes to thePublic Service Commission by altering its mem-bership from the existing Constitution to includea Chairman, a Deputy Chairman, the Head of thePublic Service as an ex officio member and fourother members. The members (other than the exofficio member) will be appointed by the Presi-dent after consultation with the Minority Leaderand their nominations made subject to negativeresolution of the House of Representatives. Themembers would include a retired judge, an attor-ney-at-law with ten years standing, a retired se-nior public officer, and a person qualified and ex-perienced in human resource management.

The Working Document transfers the powers ofService Commissions under the existing Consti-tution to Permanent Secretaries to make appoint-ments on promotion of, to confirm appointmentsof, to transfer, to exercise disciplinary control over,to enforce standards of conduct on, and to remove,persons from offices in their Ministries that do nothave similar offices in other Ministries. Otherwise,the powers retained by the Public Service Com-mission in relation to offices that exist in anotherMinistry will include the power to make appoint-ments on promotion, to transfer and to removesuch persons from such offices. In these cases ofsimilar offices in other Ministries, the PermanentSecretaries will have the power to exercise disci-plinary control over, enforce standards of conducton, and confirm appointments of persons ap-pointed to such offices by the Public Service Com-mission.

A permanent Secretary cannot remove or inflictany punishment on a public officer for any act doneor omitted to be done in the exercise of a judicial

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function unless the Judicial and Legal ServiceCommission concurs.

The concurrence of the President is required forany appointment to the offices of Chief TechnicalOfficer, Chief Professional Adviser and the deputyto these offices in any Ministry of Government.

The President shall have the power to make ap-pointments or to transfer any office holder for theproper discharge of their functions outside ofTrinidad and Tobago. The President shall also beable to make appointments to such offices in theMinistry of Foreign Affairs or to transfer personsto such offices as the President may designate.

The provisions relating to the Police Service Com-mission remain comparable to the existing Con-stitution save for the change in clause 162(4)whereby the President shall issue a Notificationsubject to negative resolution of the House ofRepresentatives in respect of his / her nomineesfor the Police Service Commission made afterconsultation with the Minority Leader.

The Teaching Service Commission is revised inthe Working Document to include a Chairman, aDeputy Chairman, the Permanent Secretary of theMinistry responsible for education as an ex offi-cio member and four other members. The Presi-dent will nominate the members (other than theex officio member) after consultation with theMinority Leader. The members would include aretired judge, an attorney-at-law with ten yearsstanding, a retired senior public officer, a personqualified and experienced in human resource man-agement and a person qualified and experiencedin education. The President will issue a Notifica-tion in respect of these nominations which shallbe subject to negative resolution of the House ofRepresentatives before any appointment can bemade.

The Working Document proposes the creation ofan Education Human Resource Agency which

shall have the power to appoint persons to hold oract in public offices in the Teaching Service es-tablished under the Education Act. The EducationHuman Resource Agency will also have the powerto make appointments on promotion, confirm ap-pointments, transfer persons, remove persons,exercise disciplinary control, and enforce stan-dards of conduct in respect of these offices. Thedecisions of the Education Human ResourceAgency can be appealed to the Teaching ServiceCommission.

Appeals

The Working Document reconfigures the appel-late process in the public service as follows :

(a) an appeal to the Public Service Appeal Boardin disciplinary matters from the Public Ser-vice Commission;

(b) an appeal from the decision of a PermanentSecretary to the Public Service Commission.

The Public Service Appeal Board is proposed toconsist of a Chairman who shall be a retired judgeor an attorney-at-law of ten years standing ap-pointed by the President after consultation withthe Chief Justice and four other members ap-pointed by the President after consultation withthe Minority Leader and the President of the LawAssociation.

Where a public officer is aggrieved by a decisionof a Service Commission, that officer may file anappeal to the Public Service Appeal Board.

General Provisions onService Commissions

An additional disqualification has been added tothe existing provisions of the Constitution for thecreation of a vacancy in a Service Commission,namely where a member becomes an elected ornominated member of a Local Government body.

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The grounds of removal of a member of a ServiceCommission by the President have been expandedby the Working Document over the existing Con-stitution to include failure to attend four consecu-tive meetings without reasonable cause, convictedof a criminal offence by a court punishable by asentence of six or more months or without a fine,fails to perform duties in a responsible or timelymanner, fails to recuse himself / herself from meet-ings where there is a conflict of interest, or dem-onstrates a lack of competence to perform duties.In arriving at conclusions on these grounds, thePresident may consider the annual reports of Ser-vice Commissions laid in Parliament.

Special Offices

The tenure of special offices has been altered bythe Working Document to include a wider set ofgrounds for vacating such offices such as becom-ing a Minister, Senator, nominated for election tothe House of Representatives or the Tobago Houseof Assembly or becoming an elected or nominatedmember of a Local Government body.

Chapter TenThe Integrity Commission

The provisions in the Working Document in rela-tion to the Integrity Commission remain compa-rable to the existing Constitution except for thenarrowing of the scope of those required to filedeclarations of their assets and liabilities, namelyMinisters, Members of Parliament and the mem-bers and holders of such public offices as may beprescribed.

Chapter Eleven – The SalariesReview Commission

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

comparable to the existing Constitution except forthe appointment of the Chairman and the four othermembers who shall be appointed by the Presidentafter consultation with the Minority Leader.

Chapter TwelveThe Tobago House of Assembly

The provisions in the Working Document in rela-tion to the Tobago House of Assembly remaincomparable to the existing Constitution.

Chapter ThirteenLocal Government

The Working Document makes provision for Lo-cal Government in the Constitution which did notpreviously exist. Twelve local government bodiesare proposed and their boundaries shall be fixedin consultation with the Elections and BoundariesCommission.

Chapter FourteenGeneral Provisions

The provisions in the Working Document in rela-tion to the General Provisions remain comparableto the existing Constitution in respect of the pro-visions on resignation and re-appointment.

Chapter Fifteen – RegionalIntegration

Provision is made in the Working Document forthe pursuit of regional integration, but only if Par-liament expressly enacts such a measure.

Documents

CHANGING OUR CONSTITUTIONconstitutionnet.org/sites/default/files/changing-our-constitution.pdf · CHANGING OUR CONSTITUTION A Comparison of the Existing Constitution of Trinidad and