David Vs Goliath

THE PROCESS by which a country develops or changes its constitution should be as participatory and inclusive as possible.

Of course, how this process is worked out will vary given the historical context.

As one person whose counsel I often seek said to me recently, the English have no written constitution, yet they have a very clear sense of what their constitution is.

This was arrived at through a process of intense struggle be-tween various interests many hundreds of years ago, in which monarchs lost not simply their crowns but their heads and archbishops were locked away in the Tower!

In other words there was an intense process through which the English eventually arrived at a “Constitution.”

One is not suggesting that we require such a process here, but in the absence of upheaval and a general ferment in which all sections of society make their views heard and which the ruling elite ignore at their peril, we certainly should agree that any proposals to change the Constitution must truly reflect the wishes and intent of the majority of citizens. Is this the case here in Trinidad and Tobago?

The short answer is no. In an act that typifies the “Manning” style of governance, we are now seeing and hearing of changes that are being drafted by a single person in the total absence of any process of engagement with the citizenry!

I am referring of course to the report that Sir Ellis Clarke has been appointed by the Prime Minister to draft amendments to the existing Constitution or a new Constitution.

Now nobody knows precisely what is going to be proposed or even how broad the terms of reference for the drafter are.

This is indicative of a certain secrecy with which the task is being undertaken by Sir Ellis. And this is the exact opposite of what should be happening!

Rather than being a backroom process the task of reforming the Constitution should be one that engages the widest possible involvement of all citizens.

This has nothing to do with the competence or integrity of the drafter — in this case Sir Ellis.

This has to do with the principle that an issue as fundamental as the Constitution of a country must be the subject of debate by all that country’s citizens.

After all, how can there be consensus on the overarching law of the land if nobody knows what that law is going to be, whether it is what they wish and how it will affect them?

This is why quite some time ago the Constitution Reform Forum (CRF) laid out a process by which we believe any changes to the Constitution of Trinidad and Tobago should be made.

We met with the then Attorney General on this matter as well as the vice chairman of the ruling party and sought, but did not have, a meeting with the Parliamentary Opposition in an effort to get some consensus at the level of the lawmakers on the process for reform of the Constitution.

Our proposal was quite simple. We rejected the concept of a Constitution Commission which would be seen as a group of “wise people” who would know what is best for the rest of us citizens.

In fact, the present arrangement where there is a single person doing the drafting in the absence of any public scrutiny such as would obtain if there was a Commission is even less participatory and transparent than the earlier Wooding and Hyatali Constitution Commissions.

The CRF proposed that instead of a Commission there should be a Constitutional Secretariat which would not be involved in drafting a constitution at all.

Instead it would facilitate the process by which the entire country arrived at what changes they wanted.

Thus, the first stage of work for the Secretariat would be to conduct a public education programme about what a constitution seeks to do, what the existing Constitution consists of and to what extent it has achieved or not achieved its objective and to identify various other options by which those objectives could be attained.

For example, the country needs an Executive to make day to day decisions and to be responsible for various national needs like security.

Our current arrangement in effect provides for the leader of the party that wins the majority of seats in the parliamentary elections to become the Prime Minister and for him to choose the Cabinet or Executive.

This is why we in the CRF say that it is a “winner take all” arrangement where the party that wins the most number of seats in the House effectively controls both Executive power and legislative power as well.

Now there are other options that would enable the Executive to be identified.

One such method is the “US” Presidential model, but in a small society this can also concentrate tremendous power in the hands of the “Chief.”

The US presidential option is not the only one.

The CRF-proposed secretariat would therefore spell out all the options, identify the pros and cons of each option and then facilitate wide public debate of these, thus leading to a consensus or majority view on which option was best for the country.

Having arrived at some general understanding of what changes the citizenry wanted the secretariat would then put these together and go back out for a further process of consultation, discussion and debate after which a “Final Draft List of Changes” would be put to the country by way of a referendum.

It is only after receiving a clear-cut and direct mandate via the Referendum would this list of changes be codified in a legal document and sent to the Parliament for formal passage.

Matters on which there was neither a clear consensus nor a well-defined majority vote in the referendum could not go forward

It would be a very foolish set of legislators indeed that would reject the positions that came to them via such a deeply participatory process.

Thus, how could a Government — or Opposition, for that matter — take a position against what the people had themselves agreed to by direct involvement in its crafting and approval by way of referendum?

This process would also eliminate any parliamentary division on the issue.

This would make it very difficult for the parties to fracture the population along lines of race, religion and geography.

And the citizens would truly own the Constitution, thus better guaranteeing its defence.

Neither the Manning initiative to have Sir Ellis draft amendments nor the Principles of Fairness initiative of actually drafting major changes to the Constitution would pass the acid test of citizen participation and ownership of our Constitution.

There is yet another fundamental issue involved and this has to do with the fact that a Constitution allocates state power to various offices and institutions.

The CRF position is that we must move from “maximum leadership to maximum participation.”

The reality is that our post Independence state is essentially no different from the old colonial state. It therefore is structured to protect the interest of the economic elite — the owners and managers of big capital.

The interests of the ordinary person — whether that person lives in rural Barrackpore or urban Laventille or in Tobago — are not primary in the process of decision-making. And this is one issue that none of the traditional parties want to change.