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    Caribbean: Observations on Constitutional Reform in T&T
    Posted on Sunday, November 03 @ 18:20:28 UTC
    Topic: Trinidad and Tobago
    Trinidad and TobagoSubmitted by: Kenneth Aquan-Assee

    Dear Sir/ Madam/ Ms,

    Given that some form of constitutional reform is being contemplated, may I submit the following reflections to start the ball rolling.

    SOME GENERAL CONSIDERATIONS:

    We can reform the constitution either radically or incrementally. Since it has functioned apparently effectively until Panday and his AG's appalling and wanton disregard of the underlying conventions, it can be argued that incremental and piece-meal reform is least difficult or time-consuming. Much of the written Constitution is valuable both for its intent and content. A major drawback is its overwhelming use of mind-numbing legalese instead of simple clear language which the average citizen can understand. After all, the Constitution belongs to the nation, not to a group of lawyers with a fondness for legalese. In addition, the pronoun "he" should be replaced with "he/she" throughout the Constitution. "He" contradicts the concept of gender equality.

    The UNC's disregard of the constitutional conventions underpinning the Westminster model of government has a positive side. We can transform those conventions into law to avoid further crises. Inevitably, new conventions shaped by local needs will evolve, and take root in T&T's system of government. Hopefully, these will be respected by parliamentarians. One convention could be the rotation between Afro-Trinis, Indo-Trinis, and other Ethnic-Trinis for important public positions like President, Chief Justice, DPP, Chief of Police, as well as authority positions within the public service, assuming the possession of the desired competencies and personality traits.

    In deciding our vision of T&T, we can ask ourselves questions like:

    *. how should our citizens be viewed?

    If they are of of equal worth, then their human dignity must be respected in private and public. Their dignity must be protected from public taunts and insults (calypsonians beware!). Sexual comments and racial insults are a no-no. I speak of respecting the dignity of our fellow citizens, not of merely tolerating their differences.

    Equal worth also implies a view of citizenship. We can think of it "as a bundle of rights" or "as having a right to have rights ". I suggest that it is only in the latter situation is there effective citizenship, with an emphasis on involvement , debate, and participation in the political process of democracy.

    The older democracies have had years of insurrection, revolution, riots, murder, injustice, political debate and dissent before attaining their present-day level of relative stability. T&T, by contrast, is a relatively young nation. Given the youth of our nation, Panday's deplorable behavior, and the possibility of other Trini PMs behaving in a similar manner, a greater degree of explicitness will be required in the Constitution with regard to roles, rights, and responsibilities to complement the above view of effective citizenship. A reformed Constitution must state explicitly what is/is not permissible for parliamentarians, senators, the PM, and the Leader of the Opposition; what rights citizens have; the ambit of the President's role, responsibilities, and authority; the relationship between the Executive and the Judiciary and its mode of operation as well as its financing, and so on.

    *There are two downsides to giving more explicitly worded form to citizen rights in the Constitution. One is that the framing of rights has already led and will lead inevitably to antagonism and litigation about rights. Where the Trini State should be the embodiment of our nation's aspirations, it has instead often become a party to litigation focussed narrowly on particular claims to a right, not on matters of general public interest. In a sense, our state has often been seen as an enemy to be attacked for private or political gain/benefit, a public Bobboli. ("Beat him here, beat him there, beat him everywhere!") There are any number of examples from T&T to illustrate this point. Many of these attacks (euphemistically called constitutional motions) could be circumvented by the creation of alternative dispute-resolution mechanisms or the creative exercise of authority with an emphasis on fairness.

    In Jaroo v Attorney-General of Trinidad and Tobago, Feb. 4, 2002, the Privy Council stated that:
    "Where some procedure for redress either under common law or some statute might more conveniently be invoked, resort to constitutional procedure would be inappropriate and an abuse of process. If it became clear after the constitutional motion had been filed that the use of that procedure was no longer appropriate its continued use would also be an abuse. "

    I remember reading the frustration of an Indo-Trini who suspected ethnic discrimination was the cause of his rejection as an applicant for employment as a police officer. We need flexibility and creativity in our responses to situations like these, not an unthinking reliance on courts and traditional bureaucratic procedures copied from the UK. Such creative solutions will be OURS, consistent with and effective in OUR culture.

    The second downside is that the rights of citizens will inevitably be framed in broad language, which will require interpretation by judges in particular situations. In effect, the decisions of judges (whose moral development is not necessarily higher than that of the average Trini) will replace the process of debate and deliberation that should be at the heart of the democratic process. Judges will become the authors of judicial legislation and the arbiters of the essential values of our democracy, not our elected representatives. The positive side to this is that there will be an agreed-on and established framework for the resolution of human rights disputes and societal conflict which often tear at the hearts of many developing countries.

    Since rights pre-suppose duties, citizenship also implies duties, to our fellow citizens, to our society, and to our nation. These can be defined by debate and discussion. Genuine citizenship necessitates a genuine participation ,in as many modes as possible, in the politics of T&T. This will, in turn, surely engender both a personal commitment to our nation and its varied communities. Our nation requires loyalty and respect from its citizens. Those unable to give this should seek another country to live in or be made an offer they cannot refuse.

    * A pre-requisite to such citizen participation is that our institutional structure reflect the gender and ethnic composition of our citizens. It is citizenship, of course, not ethnic identity or religious affiliation , which must the basis of rights; and, as we have seen, this implies the existence and performance of citizenship duties. The important point here is that just as our society is differentiated by gender and ethnic identity, so must our institutions reflect this differentiation. (a female PM or President one day?).

    * Our (Westminster) model of government has the following shortcomings:

    i. it is based on an electoral system which pays lip service to true political participation or participation in the development of human rights, "first past the post" , the "I win (Ha! Ha! ), you lose approach". A vote for goodies, not for a vision of society.( I believe that a Holy Book says somewhere that a people without a vision will be destroyed.) A better alternative would be some form of proportional representation. This would give fuller representation to the varied parts of the electorate and engender a stronger commitment to the electoral and democratic process and to our nation aspirations.

    ii.The executive ( a small group of politicians) exercises substantial power over primary legislation. Their policy decisions are supported by an anonymous and bureaucratic civil service.

    ii. Worse, the complexity of legislation results in the delegation of authority to make legislation to non-elected bodies.

    Where in all this can the voice of the lone Trini citizen be heard? Judging from what I have read, letters from citizens to ministerial departments seem to be routinely or contemptuously ignored. Let it be said loud and clear that ministers and bureaucrats hold authority in trust for the nation, are paid by the State, and are accountable to the public. The affairs of all government departments must be governed by the principles of courtesy, fairness, transparency, efficiency, and accountability. Serious transgressions of these key principles should result in resignation, demotion, or dismissal.

    *Two important aspects of the British Constitution are that it is unwritten and it is built mainly on the principle of economic liberty for the English class-based society. Our common law is based on that of the UK, and it is also more protective of the rights of property than the equality rights of citizens.

    In T&T equality as a constitutional principle is recognized formally only as equality before the law, which means in reality before the courts. This, please note, does not mean that there cannot be unequal laws, only that the enforcement of laws must be "equal", depending how the particular judge defines "equality". Our nation must avoid limitations with respect to social and equality rights. Genuine equality rights must be a guarantee for all citizens, within the limitations of our resources. Conversely, discrimination in any form, and on any basis , should be repugnant to our concept of a democratic society. This is especially relevant given our historical experience of discrimination and exploitation as slaves and indentured laborers. Three major current victims of discrimination in T&T are women, gays (who are also the children of God), and the disabled. We must also recognize the right of the homeless to some form of housing,

    *Should there be a separation of church and state?
    If the answer is yes, then religious symbols must be excluded from the province of Parliament. Thus, the huge one-ton lingam in honor of Lord Krisna that Panday claimed to have placed on Parliament grounds ( as well as his jhandi) are both inappropriate and irrelevant to the functioning of Parliament.

    * Sat Maharaj has complained that the Trinity Cross as a national award should be changed. While it is unlikely that he will ever be a recipient of it, it is probable that neither Hindus nor Muslims would feel comfortable with the Trinity Cross.

    The following are suggested as possible solutions:
    a. a secular award for all
    b. three separate awards; one acceptable to Muslims , one to Hindus, and the Trinity Cross to Christians and others.
    c. a secular award for Muslims and Hindus and the Trinity Cross for Christians and others.

    The second suggestion is particularly appropriate given the ethnic differentiation in our society. It would be a national recognition of each major faith. and it would preserve for Christians and others the recognition of the historical significance and dynamic role that Christianity played in alleviating the suffering of slaves and ultimately in the abolition of slavery. The role of Christianity in our emancipation must never be forgotten or ignored by our descendants. This does not necessitate membership in any Christian denomination.

    * Separation of church and state also requires that our limited resources be used to subsidize state, not religious, schools. T&T is a society polarized into roughly two major ethnic groups, thanks to self-seeking politicians and Hindu activists. Separate development of either group would be a disaster for our nation. What is unique to our nation is our friendliness, our hospitality, the degree of inter-mariage, the ease of social interaction , and our common culture. Yes, our common culture! despite the assertion of Naipaul, that wannabe Englishman, that we have "no culture or spirituality".

    Our schools should foster a common civic culture to ensure unity, cohesion, and stability within our nation.This could be achieved if they fostered :

    i. the ideals of democracy

    ii. an understanding of the institutional structure and the laws of T&T.

    iii. an understanding of the role of slavery and indentured labor as economic systems in our history

    iv. a sense of patriotism ,tolerance, respect for human dignity, and community commitment that a united nation requires.

    v. the artistic, academic, technical, and entrepreneurial skills needed in modern society

    vi. an understanding of cultural differences and appreciation of the contributions to T&T's history by its different ethnic groups

    vii. an understanding of the problems and challenges of adolescence

    *is unity an important objective?

    If yes, its achievement will depend on considerations like the above,with citizens experiencing a sense of equality, respect, and recognized economic rights.

    State schools have an especially important role to play here; which is why they should have adequate resources, with well-paid teachers (and principals) steeped in the latest educational ideas and teaching strategies.

    SOME SPECIFIC SUGGESTIONS:
    * that the electoral process be governed by the principle of proportional representation.
    * that the Constitution be rewritten in simpler language, not in legalese. Its meaning must be clear to the average citizen.

    RE: THE RECOGNITION AND DECLARATION OF RIGHTS AND FREEDOMS
    -- that Pt.1 S.4 be rewritten as follows:"....by reason of colour, race, ethnicity, national origin, religious belief, gender, sexual orientation, or disability, the following etc...."

    -that a new S. 4 (c) be included to read: "the right of the citizen to equality of opportunity for employment, for the provision of goods and services in the private sector, for the provision of public housing, and other public services ;

    -that a new S.4 (d) be included: " the right of the homeless to shelter/housing within the limits of national resources;

    -that SS. 4e to 4k be correspondingly re-numbered.

    RE: PERIOD OF PUBLIC EMERGENCY
    *that S.8 (c) be rewritten as follows: " that action has been taken, or is immediately threatened, by any person or group of persons of such a nature and on so extensive a scale as is likely to endanger the public safety or the existence of democratic government, or to deprive the community or any substantial part of the community of supplies or services essential to life."

    -----------------------------------------

    RE: CITIZENSHIP
    Ch.2 should be rewritten in simpler language. Its legalese is mind numbing.

    -----------------------------------------

    RE: CHAPTER 3: THE PRESIDENT
    QUALIFICATIONS AND DISQUALIFICATIONS
    *Wherever "he" is used in the Constitution, it should be rewritten as "he or she":
    e.g. S.23 (1), "unless he is a citizen" should be rewritten "unless he or she is a citizen".
    Also in S.23 (2), S.24(1), S.24 (3),etc.

    -----------------------------------------

    RE: CHAPTER 4: COMPOSITION OF THE SENATE
    *Re.s.40 ss.2:
    Of the 31 Senators:
    a. 16 Senators ...on the advice of the PM
    b. 10 "....on the adice of he Leader of the Opposition
    c. 5 ....at the discretion of the President

    RE: TENURE OF OFFICE OF SENATORS
    Include a S.43 clause providing for the physical expulsion by a police officer , on the advice of the President, of any Senator who refuses to vacate his/her seat.

    -----------------------------------------

    RE: APPOINTMENT OF MINISTERS
    S. 76 (3) should omit "and the Senators" at the end of the sentence.

    Similarly, S.76 (5) should omit the words "a Senator or"

    Senators are not elected by the people. Only elected representatives should be eligible for Cabinet appointments.

    ---------------------------

    There must be a clause in the Constitution which addresses the provision of funds for the operation and effective functioning of the Judiciary.

    -----------------------------------------

    The above are a few suggestions which could start discussions on amendments to, or reform of, the Constitution. There are better minds than mine in T&T which could develop these or similar ideas more fully.

    Sincerely,
    Kenneth Aquan-Assee
    Canada

     
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