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Raffique Shah


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Our constitution is obsolete

February 5, 2006
By Raffique Shah

JUST about every sensible person in the country recognises that our 30-year-old Constitution needs not just to be reformed but a complete overhaul. I happened to be an elected Member of Parliament when the Republican Constitution became effective in 1976. And even then I saw many flaws in it. I often wondered who were the jokers who drafted it. I know who enacted it as law: it was the then PNM Government that had won all 36 seats in 1971, and which, by the time the change from the Independence Constitution was made, had the might to have any Bill passed into law.

I shall not get into the multiple deficiencies in this document that is deemed supreme under our laws. I leave it to people more knowledgeable than I am to do that tedious task. But I shall deal with a few of the more fundamental flaws. Firstly, it allows the Prime Minister free rein to name as many senators as he thinks he needs as ministers in his Cabinet. While few will object to some members of any Cabinet coming from the Senate, I think it's insulting to the elected parliamentarians, who will have campaigned and put out so much energy to get the party into government, only to see Senators elevated to Cabinet.

Dr Eric Williams introduced this measure under the Independence Constitution, I believe. It may have been useful since there were eminent and highly qualified persons he would have wanted in his Cabinet who were not prepared to face the electorate. But things soon got out of hand when he, and later his successors, made a virtual farce out of the provision. In the case of the NAR in 1986, when that party won 33 of 36 seats, it had a large pool of elected members from which to select persons to the Cabinet.

But thereafter, with the winning parties holding slim majorities, successive prime ministers have relied too heavily on senators in forming their Cabinets. This was the case with the Patrick Manning Government (1991-95), and later with the UNC.

Today, little has changed. We have reached the point where senators act as Prime Minister over elected members of the House, which, to me, is a travesty of all that a democratic society should be.

But that is a minor aberration when compared with other provisions in the Constitution that are meaningless. Clearly, if this country is to move forward, governance must be more by consensus than by competing interests. In critical appointments to the statutory bodies like the various commissions (JLSC, PSC, etc), the President of the Republic is required to consult with both the Prime Minister and the Leader of the Opposition. During the short period in which I held the latter post I realised that this was a farce. Mattered not who the Opposition Leader (and his party) recommended, once they did not conform to the wishes of the PM, the President would reject them. Why can't a joint House and Senate committee consider those nominated, grill the potential appointees and then make these appointments?

By extension, many of these commissions become laws unto themselves because no one seems to have the right to question their actions, far less remove them from office. People speak of the EBC, for example, being an independent body that takes action (like revising constituency boundaries, approving final voters' lists) in a manner that's acceptable to all. In the year 2000, the EBC's list of electors contained 947,689 names of persons eligible to vote. In 2001, that number had fallen to 849,874! By 2002, that number had levelled out at 875,260. Where, why and how did 100,000 people disappear from the list within one year? Or was the 2000 list inflated? No one on the EBC has explained that. Yet, no one can remove the commissioners, even ask them to resign, as the Justice Lennox Deyalsingh Commission of Enquiry into the EBC recommended in its 2002 report.

The same is true of other commissions that seem to wear body armour provided by the Constitution. Almost weekly taxpayers fork out money to pay to teachers, police officers, prisons officers and public servants who are deemed by the courts to have been unjustly treated by their respective commissions.

Are these bodies untouchable? No one should be above the law, not even these seemingly sacrosanct commissions. But they are creatures of the Constitution, and while one does not interfere with independent bodies that are supposed to be without bias and aloof from politics, we have had too many violations that smack of human frailty to leave them beyond the reach of the citizenry.

Finally, two points that I intend to tackle next week. First is the wanton abuse of parliamentary privilege to sully the characters of ordinary citizens. And second is proportional representation that is being touted as a panacea to our problems with fair governance.