The Constitution is not cast in concrete

Former UNC minister John Humphrey is generally good for a laugh. So it wasn’t surprising that even when he was trying to persuade the commission of inquiry and, by extension, the general public that fasttracking mega government projects had its merits, he couldn’t help having some members of the commission in stitches as he sought to show how powerful the government (read cabinet, inner cabinet, prime minister) was. Humphrey claimed that a Barbadian attorney general once told him that the only thing a government couldn’t do was to change a man into a woman or vice versa. Actually the AG was quite wrong because, in legal terms, all that has to be done is to frame the particular statute such that for the purpose of its application Mr X should be deemed Ms X or Ms Y deemed Mr Y. However, we’re grateful to Mr Humphrey for reminding us how easy it is for mega projects to be fasttracked, sidetracked or backtracked by God-alone-knows-whom as the populace continues to pay “until the cows come home.”

As we say, Mouth open, story jump out!” That reminds me of the time when I was taking in a bit of the telvised proceedings of the Mackay commission of inquiry into our justice system with particular reference to the formal and constitutional relationship between the offices of the Chief Justice and the Attorney General. Much to my surprise, Geoffrey Robertson QC (assigned to assist the commission) made the offhand remark that he thought that the difficulties between the CJ and the AG could easily have been settled “over a drink.” He quickly added that he was simply being facetious. The CJ had initially taken his problem into the public domain saying, inter alia, that, “... there was more than one way to skin a cat.” To cut a long story short, it would appear that the CJ felt that the AG was basically no more than the conduit between his office and the administration and the constitution did not cater for an AG who could call the shots or determine the judiciary’s allocation of resources or influence the judiciary by how its resources are doled out. Incidentally, the CJ, at an earlier time, was a member of the Wooding Constitution Commission. All that’s old hat, you might think but with renewed interest in constitutional matters one needs, at least, to review the constitutional boundaries and lines of authority and how distinct roles interface.

I might mention here that the AG is not only expected, in practice, to give legal advice on legal matters but legal advice on political matters and political advice on legal matters. The legal luminary, Sir Patrick Hastings, admitted to “bringing down” his government by tendering sound legal but poor political advice. I suppose that Ramesh Maharaj could one day claim that Basdeo Panday brought down the UNC government by rejecting his AG’s sound legal and even sounder political advice. But don’t expect the seemingly senile and apparently irrational Panday to even consider this, as he continues, publicly, “foaming at the mouth.” Ironically, our chief problems are not with the constitution per se but with a pernicious mind-set that is as pervasive as it is self-destructive and unproductive. It comes across in the expression that, “It’s no business of ours to make the other side look good,” or “... tell us what’s the other party’s policy on any issue is and ours is the exact opposite,” or “Revolving door government or gridlock is just our speed and suits us fine. In any case our opponents can go to hell and our supporters are just too dumb to catch on to our political tricks and capers of oneupmanship.” Admittedly, (constitutional ignoramuses notwithstanding) a constitution that is suited to the needs of its people at a particular time may become antiquated and inappropriate in the light of unforeseen and, in some cases, unforeseeable political, social, scientific or economic developments. It therefore follows that not only should constitutions be revised from time to time, though not flippantly or for frivolous reasons, but also the process by which they can be changed, if found necessary.

Now, there may be cases where safeguards in the constitution may make it unduly rigid and the amendment process too cumbersome to respond to a strongly felt and pressing political, economic, social or other need. In our own case, it may simply be the usual problem of “trickle down stupidity” and power-hungry demagogues. If any one asks me, it’s too much to expect good sense to prevail in certain quarters, as the name of the game according to the “rasta man” is “Let the power fall on I!” It’s extremely difficult to amend the constitution of the US and the US judiciary has been known to adapt an old statute to accommodate new circumstances or find a formula sufficiently flexible to accommodate their interpretation. Whatever one might think, judges are the ones designated to interpret the constitution and the “opinion” of the highest court is taken as the “legal gospel.” America’s constitutional gift to the world is the production of “a written constitution.” The constitution itself is the product of long and hard negotiation and historical evolution and it cannot be fully understood in the absence of its antecedents and historical context. The difficulty is compounded by the studied lack of clarity and precision of the language in which it is couched. Someone referred to “the elegant vagueness of the words written by the Framers of the US Constitution.” US Supreme Court Justice William Brennan stated that, “The Founding Fathers (the Framers of the US Constitution) hid their differences in cloaks of generality. Laurence H Tribe, professor of constitutional law at Harvard Law School contended that the, “teasingly opaque nature of some of the majestic phrases in the US Constitution were not there by accident. According to Justice John Marshall, the Founding Fathers intended that the US Constitution would “endure for ages to come and adapt to the crises of human affairs.”