RE-ENGINEERING
OUR CONSTITUTION
FOR
PARTICIPATION AND PERFORMANCE
Introduction
This presentation is divided
into two parts: In Part 1, I set out the challenges which we face in
terms of our present Constitution and options that should be
considered in terms of constitutional reform to overcome such
challenges. In Part 2, I outline the principles which I believe
should underlie the reform of our Constitution.
If it would be helpful, I would
be happy to submit relevant statutory provisions from various
Constitutions referred to in this Presentation which may be
considered for implementation into a reformed T&T Constitution.
This presentation makes
recommendations for reform of the Constitution with respect to the
matters which appear in the following Sections of Part 1, which for
ease of navigation are hyperlinked):
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PART
1 – RECOMMENDATIONS FOR REFORMING CONSTITUTION
1.1 In
my view the Parliamentary System is the starting point from which to
make an assessment of what is working well under our Constitution in
terms of the governance operations, what is dysfunctional and what we
can do to improve the system. Without creating a performance, results
oriented system of governance, our democracy will not flourish and
the development of the Nation will stagnate. As part of such
reformation membership of Parliament has to be treated as a full time
professional occupation and members must be compensated as such,
understanding that there ought to be a discount against comparable
roles and responsibilities in the Private Sector due to the public
service nature and role of Parliamentarians.
- What is working well? In my view one of the bulwarks of our democracy, providing a vital check and balance in our Parliamentary System, is the role played by our Independent Senators (See Clause 2.8 - Independent Committee to review Ministerial Appointments, for further enhancements for role of Independent Senators). As a result my strong preference would be to retain a Non-Executive President, being the Office through which Independent Senators are appointed and also playing a vital role in making other constitutional appointments (see Section 6 and Clause 10.3 (appointment of members of the National Economic and Development Council) for recommendations on Election and Role of President).
1.3 The
structure of our Parliament, as currently configured, makes it far
less effective than intended under the Westminster Parliamentary
System which we adopted in 1962. The key functions of members of our
Parliament are: (a) as Legislators, (b) in relation to members
appointed as Ministers, carrying out the Executive function of the
Government, and (c) oversight of governmental and administrative
actions through serving on Parliamentary Committees. As I explain in
Clauses 2.3, 2.10 and Section 3, the current configuration does not
allow for the satisfactory performance of these functions.
1.4 In
re-engineering our system of governance, I believe the following
recommendations will allow for the key functions of government and
parliament to be optimized:
(i) on any occasion for
appointment of a Prime Minister, (consistent with our 1976 Republican
Constitution) the President to appoint as:
Prime Minister
(a) the Leader in the HOR of
the Political Party which commands the support of the majority of
members of the HOR; or
(b) the member of the HOR who,
in the judgment of the President, is most likely to command the
support of the majority of members of the HOR; and
Opposition Leader
- the Leader in the HOR of the Political Party (minor variation from the current section 83) who, in his judgment, is best able to command the support of the greatest number of members of the HOR who do not support the Government.
(ii) Separation of the
Legislature from the Executive. The Prime Minister may nominate such
individuals as members of Cabinet from among either members of
Parliament or persons who are not members, but any Member of
Parliament who is nominated to serve as a Minister will have to
resign his seat, subject to limited exceptions if considered
desirable. Persons so nominated for Cabinet posts by the Prime
Minister will have to be screened and approved by a Committee(s) of
Independent Senators. (See Clause 2.8 for more details on this
proposal).
(iii) Parliament to consist of
approximately One Hundred (100) full time Non-Executive
Parliamentarians, with Fifty (50) members in the House of
Representatives (HOR) and Fifty (50) members in the Senate. This
arrangement will allow for the proper functioning of the
Parliamentary Committee System which is an essential element in the
oversight process of Executive and Administrative action, including
review of legislation. (See Section 3 relative to Committee System).
- The Electoral System to achieve this Parliamentary arrangement necessitates a Proportional Representation system of voting utilising an alphabetical Listing method. Each Political Party presents two lists:
(a) The HOR List consisting of
up to 60 candidates for seats in the House of Representatives;
- The Senate List consisting of up to 36 candidates for seats in the Senate.
This List Method will allow
for substitution of members who resign their seats in Parliament to
become Ministers (and in other circumstances) from among other
candidates on the HOR or Senate Lists of the same Political Party as
such resigning member.
- At every General Election each Political Party would be entitled to such number of seats in the House of Representatives as corresponds with the percentage of votes cast for that Party, with the members being selected by the respective Political Leaders of the Parties from among the candidates on its HOR List, subject to such Political Party winning at least 5% of the votes cast at the General Election.
- The President will appoint the following persons as Senators:
- Fifteen (15) Senators (Independent Senators) listed by the President and submitted to the Clerk of the Senate prior to the holding of the General Election, chosen by him acting in his own discretion or from among nominees of the National Civil Society Board(See Section 20);
- Twenty-six (26) Senators (Government Senators) nominated by the Prime Minister from the Senate List(s) of the Political Party(ies) forming the Government, of whom one (1) shall be nominated for election by the Senate as Senate President;
- Ten (10) Senators (Opposition Senators) nominated by the Leaders of the Political Parties in opposition to the Government from their respective Senate Lists, in proportion to the ratio (rounded up or down to the nearest whole number) of votes cast for each such Political Party at the General Election, for any remaining Senate seat, a Senator nominated by the Leader of the Opposition.
- In the General Election, before aggregating the total number of votes countrywide for purposes of determining the percentage of seats won by each Political Party in the HOR, the votes of each of the 41 Constituencies in Trinidad and Tobago shall be counted separately to determine which Political Party won the highest number of votes in each such Constituency (‘Constituency Votes’). The Political Leader of each Party which wins seats in the House of Representatives shall assign responsibility for the constituencies in which it has received the highest number of Constituency Votes, to such of its members in the HOR as the Political Leader shall appoint.
2.1 I
have referred to the issue of separation of powers in relation to the
question of an Executive President. This separation is an important
check and balance in our system of governance. In jurisdictions in
which the numbers of Parliamentarians are far larger than ours, it is
usual to find that the numbers of Members who do not form part of the
Executive is substantial. In this way the Executive does not
overwhelm the Legislature in terms of numbers and backbenchers can
play an important role, both as Committee members and even expressing
independent points of view.
2.2 In
small jurisdictions such as ours this is not the case and the members
of the Executive in Parliament are dominant in terms of numbers. In
this sense the Westminster System we have adopted simply cannot work
as was intended with particular reference to the Committee System as
described above. Moreover the powers of the Prime Minister in the
Parliamentary System of government is said to be even greater than
those of an Executive President such as in the United States of
America. In small societies the powers of the Prime Minister are
magnified given that, not only does the PM choose who will form the
Cabinet but to a large extent has significant influence, if not
decision making power, whatever the provisions of a political party’s
constitution may provide, as to who will be the candidates for
general elections.
2.3 Added
to this is the fact that Ministers of Government are expected to
fulfil multiple roles, all of which would be impossible for any
single individual to perform successfully, or at least without the
supportive machinery which is available in more sophisticated and
larger jurisdictions. A Minister’s role includes: (i)
responsibility for his/her Ministerial Portfolio; (ii) Constituency
Representative; (iii) Legislator; (iv) Parliamentary Committee
member; and (v) Cabinet member, to mention nothing of his family
life. This system in my view sets up a Minister for failure in one or
more of the roles assigned to him/her and the Country must suffer by
extension. It is clear to me that we cannot continue to perpetuate
this system and expect the Parliament to properly perform its
oversight role and for the Executive to achieve the development goals
to which we aspire. While the strict Westminster System may work in
countries which have very large numbers of parliamentarians in my
view it does not work for a country of our size and population.
2.4 So
what should we do in order to meet this challenge? I believe that
this challenge opens up new opportunities to introduce governance
arrangements which are tailor made to suit our Society as we embark
on the next 50 years of Nationhood.
2.5 It
is therefore vital that we create mechanisms which would allow for a
better separation of powers as between the Executive and the
Legislature and which would create the environment in which Ministers
could focus their energies on the most important of the roles which
they are required to perform.
2.6 To
achieve these objectives within the context of our inherent
limitations I am convinced that members of the Executive should not
be members of Parliament, which would of course allow for the
separation of powers which are more akin to those found in the
Presidential forms of government. If we are to consider retaining
some members of the Executive in the Parliament, then I suggest this
should be limited to up to four (4) individuals, such as those
holding the portfolios of Prime Minister, Attorney General, Finance
and National Security. The question is how can we achieve this
without introducing the type of deadlock as has become endemic to the
Presidential system of government?
2.7 One
approach would be for the President, where there is an occasion for
the appointment of a Prime Minister (usually after a General
Election) to appoint as Prime Minister, the Leader of the Political
Party which commands or is likely to command the support of the
majority of the elected members of Parliament (See 1.4 (i)).
2.8 The
Prime Minister would then nominate individuals to serve as Ministers
within the Cabinet who are considered competent to fulfil the
ministerial portfolios intended to be assigned to them. A special
committee(s) of the Independent Senators sitting in private and
acting in accordance with provisions to be incorporated in the
Standing Orders (the Independent
Committee) will
review consider and approve or disapprove the fitness of the nominees
to perform the designated Ministerial portfolios. This review
process, in the initial stages anyway until some level of confidence
in the procedure is gained, may not necessarily require the
attendance and questioning of the nominee but may be conducted
through any individual designated by the Prime Minister to represent
the nominee. Query whether the same review and approval process by
the Independent Committee ought not to be applicable to persons
appointed to serve on statutory boards and State Enterprises.
2.9 The
Prime Minister and any elected member approved by the Independent
Committee as a Minister shall be required to resign as a Member of
Parliament before taking up his/her ministerial appointment (save for
up to four (4) members (see Clause 2.6) who retain their seats if
considered advisable). This proposal would only be feasible if the
list system under proportional representation were adopted (see
Clause 1.4 (iv) ) so that the place of any resigning member could be
taken up by another individual on the Party List from which he was
selected.
2.10 This
arrangement with respect to the Executive would have several
benefits, including: (i) achieving a separation of Executive from the
Legislature; (ii) permitting Ministers to focus exclusively on their
Ministerial Portfolios and Cabinet responsibilities; (iii) allowing
for a greater number of Parliamentarians being available to serve on
Committees and therefore greatly improve, when combined with
membership, for instance, by representatives of the National Civil
Society Board, the Parliamentary oversight process; (iv) avoiding the
potential gridlock which occurs within the United States Congress by
allowing for the Prime Minister to be a member of the Political Party
which commands the majority support of Members of Parliament; (v)
introducing the opportunity to appoint the best possible individuals
to serve as part of the Executive (as occurs in the United States)
with the added benefit of the review provided by the Independent
Committee; and (vi) allowing for members in the HOR to be
constituency representatives (see 1.4 (vii)).
2.11 In
this way Ministers would be able to focus exclusively on their
ministerial portfolios and their performance would be judged solely
by their successes in this arena. Additionally the Prime Minister
would be in a position to choose those who potentially are the best
performers from a far wider pool of individuals, indeed without
reference to party affiliation. Parliamentarians could then focus on
their core duties as legislators, committee members and
representatives of their constituencies.
2.12 In
answer to those who share a concern that such Ministers have not been
voted for by the People, it should be noted that in the Executive
Presidency model there is no requirement for members of the executive
to be chosen from among elected parliamentarians although in the
United States the nominees for such posts are subject to scrutiny by
the Senate. I believe that this latter check and balance could best
be achieved by having our Independent Senators conduct reviews of the
Prime Minister's nominees for executive office via the Independent
Committee (see Clause 2.8).
3.1 The
key functions of parliamentary oversight are described by the
Inter-Parliamentary Union in its Article on “Tools
for Parliamentary Oversight” as
follows:
◆ to detect and prevent
abuse, arbitrary behaviour, or illegal and unconstitutional conduct
on the part of the government and public agencies. At the core of
this function is the protection of the rights and liberties of
citizens;
◆ to hold the government to
account in respect of how the taxpayers’ money is used. It detects
waste within the machinery of government and public agencies. Thus it
can improve the efficiency, economy and effectiveness of government
operations;
◆ to ensure that policies
announced by the government and authorized by parliament are actually
delivered. This function includes monitoring the achievement of goals
set by legislation and the government’s own programmes; and
◆ to improve the transparency
of government operations and enhance public trust in the government,
which is itself a condition of effective policy delivery.
3.2 Committees are also an
entry point for citizens’ involvement in parliamentary business.
Experts can be heard in, or become advisers to, parliamentary
committees. Committees can invite interested parties to hearings or
invite members of the public to give evidence. Public hearings held
by parliamentary committees have the potential to be a vehicle for
informing the public on policy issues and the parliament’s work on
those issues.
3.3 It
is clear then that one of the key roles of our parliamentarians is to
have oversight of executive action both in terms of legislation and
performance of governmental functions. The most significant way in
which this is achieved is through Parliamentary Committees.
Regrettably over the last 50 years the Committee system has not
worked in the manner in which its role is envisaged in the
Westminster System which Trinidad and Tobago has sought to adopt.
3.4 I
believe that the main reason for this shortcoming is that the number
of parliamentarians available to perform this function is woefully
inadequate. In New Zealand a recent commission recommended that in
order for the Parliamentary Committee system to work effectively one
would need, in addition to members forming part of the Executive, a
minimum of 100 Parliamentarians. In Trinidad and Tobago the number of
non-executive Parliamentarians available to serve on Parliamentary
Committees is about 45 members, in other words we have less than half
of the minimum number required to achieve an effective Parliamentary
Committee system.
3.5 In
light of this, one approach would be for our Constitution to provide
for at least 100 non-executive Parliamentarians. The fact that we
have a population of about 1.3 million, as compared to New Zealand
with about 4 million, does not diminish the volume of work required
to be performed by Parliamentary Committees.
3.6 Alternatively we should
consider the recommendation to introduce non-parliamentarians in the
work of Committees made in the February 2012 Report commissioned by
the European Union Delegation on “Activities on Strengthening
Parliamentary Practices in Trinidad and Tobago”. In that Report it
is stated that “The
problem facing Trinidad and Tobago is similar to an issue facing many
small country parliaments: the membership of parliament is not large
enough to support multiple committees and the number of members who
sit on the committee is limited. One option is for a mandatory
minimum membership of backbenchers and executive members. Another
option would be to make use of non-members in the work of committees,
something which is used in other jurisdictions (for example Jersey,
Guernsey, Denmark and Papua New Guinea).”
….”The
current government has taken the approach that the JSCs should be
chaired by one of the nine independent Senators and this practice has
undoubtedly assisted the work of the committees and reduced the
amount of partisanship. However, there is no assurance that this
excellent practice will continue beyond this Parliament. Adding this
practice to Standing Orders of both Houses would ensure continuity”.
3.7 A complimentary approach
would be to extend membership of Parliamentary Committees to
representatives nominated by the National Civil Society Board. In
that way we would not have to increase the number of parliamentarians
beyond the current quota of 41 members in the House of
Representatives and 31 members (inclusive of the presiding officer)
in the Senate. However this is likely to perpetuate the idea of part
time service which ultimately is to the detriment of the Committee
System.
3.8 My preferred approach would
be to structure our Parliament so that we have about 100
Non-Executive Parliamentarians, say 50 members in the House of
Representatives (plus an elected Speaker) and 51 members in the
Senate (of which one (1) is elected Senate President). This
arrangement can be introduced if we determine to have a system of
proportional representation through a list system, in which any
member appointed as a Minister within the Executive, would resign his
seat in Parliament (save, if considered advisable, for up to four (4)
Ministers holding specified portfolios). For the more detailed
provisions see Section 2 under “Separation of Powers”).
3.9 In order to give a sense
of the role which Parliamentary Committees can play I set out below
some of the provisions in other countries. In some parliaments around
the world provision is made for Committees of Inquiry. Regardless of
which procedure is used to form them, all committees of inquiry share
certain features:
◆ They have special powers of
investigation.
◆ Their special powers can be
employed only in relation to the immediate matters of inquiry, which
can be very narrow.
◆ They can be established
during the course of a legislative term or during a parliamentary
session.
◆ They are set up by the
chamber.
◆ After submitting a final
report to the chamber within a certain period, the committee of
inquiry stops functioning.
A
committee wishing to conduct an inquiry or investigation must obtain
permission from the full chamber. The rules of procedure can provide
that a committee’s request to hold an inquiry is normally accepted,
unless challenged.
Committees
of inquiry may conduct fairly intensive investigations over a
relatively short period of time, and have the potential to reveal
facts that may be uncomfortable for the government. Unlike permanent
committees, ad hoc committees of inquiry are established by a
resolution of a chamber of parliament:
◆ The resolution fixes the
duration of the committee.
◆ Ad hoc committees’
mandates are limited to matters specified in the terms of reference
of the chamber’s resolution, and can be very narrow.
◆ The nature of the inquiry
is specified in the resolution.
◆ A committee of inquiry can
be smaller than ordinary committees, although the principle of
equitable representation of parliamentary political groups is
maintained.
Committees
of Inquiry are usually equipped with more powers than ordinary
permanent committees. Provisions relating to committees of inquiry
are sometimes found in an annex to the rules of procedure or even in
a separate legal document. In 14 Parliaments, evidence can only be
taken in ad hoc committees of inquiry. Committees of inquiry are also
accorded other special powers. In the German Bundestag, for example,
1) The rules of criminal
procedure shall apply mutatis mutandis to the taking of evidence. The
privacy of correspondence, posts and telecommunications shall not be
affected.
2) Courts and administrative
authorities shall be required to provide legal and administrative
assistance.
3) The decisions of
investigative committees shall not be subject to judicial review. The
courts shall be free to evaluate and rule upon the facts that were
the subject of the investigation.
4.1 I
have chosen the New Zealand experience as being relevant to us in
Trinidad and Tobago as there population is less than 4 million
people, yet New Zealand is considered one of the foremost democracies
in the World. Often we look to jurisdictions with populations in the
hundreds of millions forgetting that their systems of governance
cannot be easily introduced into a vastly smaller jurisdiction such
as ours.
4.2 I
have set out in Part 2 (Clause 24.1) the criteria for judging voting
systems identified by a 1992 Independent Panel in New Zealand when it
embarked on a process to determine if New Zealand should change or
retain its first past the post voting system.
4.3 The
New Zealand Commission concluded that the Voters will have to make up
their own minds on which criteria are important to them. Different
points will be important to different people. In New Zealand it was
decided to introduce a mixed form of Mixed Member Proportional System
(MMP).
4.4 Under
the MMP system every voter usually has two votes:
(i) One vote is for a
Constituency Member of Parliament. There would be one Member of
Parliament for each Constituency. This vote operates in the same
way as our current first-past-the-post voting system – but it is
used to elect only half of the total number of Members of Parliament.
(ii) The other vote is a
nationwide vote, for a political party. Before an election each
party publishes a list of its candidates so that voters can assess
the candidates the various parties are putting forward; on Election
Day voters choose between these lists of candidates. The other half
of the total numbers of Members of Parliament are elected in this
way.
If a
vacancy occurs among List Members by death, resignation or disability
the Commission chooses the next nominee on Party List subject to
verification that such nominee is alive and still a member of party
to which Member who created vacancy belongs.
4.5 See
the Electoral Act 1993 (New Zealand) for Mixed Proportional
Representation (Electoral Districts combined with List System).
4.6 South
Africa in its post-Apartheid Constitution introduced a pure
Proportional Representation System.
5.1 The
Wooding Commission put forward the following arguments for and
against proportional representation:
5.2 Some people believe that
proportional representation is the fairest and best way to hold
elections for the following among other reasons:
(i) The division of a country
into constituencies is seldom ever done in such a way that all
parties accept it as fair. There is often the charge that a
Boundaries Commission has favoured one side. Where there is
proportional representation there is no need for a Boundaries
Commission because there are no constituencies. An issue over which
there is often much bitterness and resentment would therefore
disappear.
(ii) Party leaders and their
supporters would no longer feel frustrated because a fairly
substantial popular vote in favour of their party has produced
relatively few seats in Parliament. Party strength in the House would
be a true reflection of party strength in the Country as a whole.
(iii) Each legislator would be
a representative for the whole Country and not only for a particular
area: hence he would work for all of the people and not merely for a
restricted group.
(iv) Every vote counts. Even if
cast for a candidate who fails to win a constituency seat it will
help boost his party's total number of votes and thus increase the
number of list members it can select. There will be no point in
writing off any constituency because it cannot be won. Similarly in
safe seats a party will have to work towards securing as large a poll
as possible to increase its total share of the vote. This should
promote participation.
5.3 Some of the arguments
against proportional representation may be summarized thus:
(i) Proportional representation
puts the legislator more firmly in the power of the party
organization. Where he has a constituency which he has looked after
well, the party may need him as much as he needs the party. He may be
the only party member who can win that seat, and this gives him
influence enough to question and challenge leadership policies when
this seems necessary. When he is merely one of a list of candidates,
his concern may well be to please the leadership completely so that
his name is placed as near as possible to the top. In
its Report the
Wooding Commission recommended that the names on the List be placed
in alphabetical order.
- The close relationship which can exist between a representative and a voter in his constituency would disappear in such a system. A representative elected by a constituency is much more likely to fight vigorously the case of a voter in his constituency whose vote or whose influence he knows will help directly to decide his success or failure at the next elections. In its 1972 Report, in order to retain the connection between the Member and his Constituents, the Wooding Commission recommended a Mixed Form of Proportional Representation. This would be an area on which the people’s views should once more be sought and in particular whether the need for representation would best be served through the system of Local Government. It has been suggested that the question of representation can be resolved in the pure form of Proportional Representation by the Leader of each of the Political Parties in the House allocating constituencies which members are require to serve and represent.
- Proportional representation tends to emphasise racial and sectarian divisions. Smaller groups, instead of merging into alliances, fight to get a sufficient number of votes to win direct representation in Parliament. In its Report the Wooding Commission conclude that: “It was under the first-past-the-post system that the two main ethnically based parties – PNM and DLP - emerged. The considerations which led to this division will remain unaffected by the introduction of proportional representation. It cannot be argued that the first-past-the- post system makes racial voting ineffective.”…….. “A fair system which favours neither group must certainly be the better course. Furthermore, our projection is that proportional representation may well help reduce racial voting”.
- The effect of a multiplication of parties is often that no single party wins a clear majority. Coalition governments have to be formed in which policies are not clear and decisions are difficult. This tends to hinder development. In its Report the Wooding Commission concludes that: “The first-past-the-post system is no guarantee against coalitions”….. in the Federal Republic of Germany… where a mixed system of proportional representation has been in use for quite a long time, coalition governments have proved to be quite strong so much so that it is today one of the most prosperous countries in Europe”…… “The qualifying conditions that a party should win one constituency seat or obtain 5% of the votes should prevent the mushrooming of mini-parties not representing any recognisable interest”
5.4 In
the final analysis in 1972 the Wooding Commission recommended a Mixed
Form of Proportional Representation as the electoral system which it
considered the fairest system and the one which best suited the
interests of the People of Trinidad and Tobago. The Report concluded
“as a system of
democratic representation that it (the First Past the Post System)
has its most serious faults. As has already been mentioned, where
there are three or more candidates the winner may actually represent
only a minority in the constituency. All the electors who voted
against him could justifiably feel that they were not represented and
that their votes had had no effect whatever on the result of the
election”.
5.5 If
we assume that my recommendations as to how the Executive should be
configured (see Clauses 2.6 to 2.12 ) produces the optimum structure
for performance and development of the Country, the question arises
as to: “How would democracy best be served?”; and “What
electoral arrangements need to be introduced in order to achieve the
desired result?” I believe the governance and electoral
arrangements which I have recommended in Section 1 achieves these
objectives while satisfying the concerns raised by the Wooding
Commission, including that relating to Constituency representation.
5.6 The
underlying principle of democracy is
that decisions that affect the people should largely accord with the
will of the people. One way to improve the prospects of this is for
representatives to be elected.
The basis of representative democracy is that the collective views of
the representatives reflect the collective views of the people.
Proportional Representation (PR) is simply a more precise statement
of this ideal: the proportion of representatives that hold a
particular view should be roughly the same as the proportion of the
people that hold that view. (http://economics.about.com)
5.7 If
proportional representation is adopted it may be considered desirable
that the Prime Minister should be elected not simply by members of a
particular constituency, but by the entire electorate. The
arrangements recommended in Section 1 achieve this goal as the votes
of the entire electorate are aggregated together and the result
produced by this method determines which Political Leader will become
Prime Minister. This approach, albeit in a different context, seems
to me to represent the consensus of sentiments expressed at the
previous public consultations on the Constitution.
5.8
If the Commission decide to introduce a Mixed Form of Proportional
Representation or to retain the First Past the Post Electoral System
then I recommend that the Constituency Seats ought to be determined
on a Preferential Voting (Single Transferable Vote) System as
conducted in Australia. The adoption of the latter system for
Constituency Voting, will ensure a majority candidate, if no single
candidate gains more than 50% of the vote, rather than first past the
post which can result in the winner representing a minority of the
electorate
6.1 The
issue of whether we should have an Executive President has been
explored in the public domain for some time now. On the positive
side, it has been suggested that this would allow for an enhanced
separation of powers between the Executive and the Legislature and
permit Ministers of Government to be drawn from a wider pool of
candidates. On the negative side fears were expressed that this would
permit excessive power to reside in a single individual and there
would not be satisfactory checks and balances in the system, although
potentially it could result in deadlock between the Executive and the
Legislature which appears to have happened in the United States of
America. In either event an overwhelming percentage of the public
appeared to favour that all citizens should have the opportunity to
vote for an Executive President and voting should not be restricted
to persons residing in the constituency of the Presidential
Candidate.
6.2 I
firmly believe that the check and balance which our Republican
Constitution provides in the role of the Office of the President,
with particular reference to the President's appointment of
Independent Senators and other significant Offices, is extremely
important and should be retained if not expanded.
6.3 Even if a system could be
devised which would allow for Independent Senators to be appointed in
the absence of a Non-Executive President I think that the role which
our President can play in a plural Society such as ours is far too
important to be eliminated. A Head of State, in the words of Michael
Harris, should "embody,
represent and speak on behalf of"
the nation, remind us of our "best
and highest ideals",
and "assist in
bringing together" a multi-ethnic society”.
That is a most important role in the context of the problems which we
face as in our plural Society but is not an objective which a
partisan Executive President can achieve.
6.4 And as stated in the
website of the Office of the President of Dominica “The
President must be non-partisan with a special endowment to be
objective in coming to a resolution on any matter. He should be able
to effect consensus between political parties when no one else can.
He is a symbol of national unity.
Where the general public is
concerned, the President has to be a role model a person greatly
esteemed with exceptional moral rectitude and high ethical standards.
He also has to be a person of intellectual capacity who will know
what he does not know and knows where to seek knowledge.
He must not be easily swayed
by public opinion, but has the ability to listen and weigh carefully
what is put before him before he acts. He must not be insensitive to
the causes of the people.
He should have the capacity
to be at ease at all levels of society and at the same time everybody
should feel comfortable with him without violating the dignity of the
office. A President has to be a people person who is sensitive to the
needs and aspirations of the people. He must have the unusual ability
to reprove people when they are wrong, yet understanding that he must
be the person who is merciful.
He must understand the
philosophies of the various societies, organizations and institutions
that do so much to bring relief and show brotherly love. He must be
humanitarian. He must be a public speaker with a public image that is
above reproach”
“The above range of
responsibilities would suggest that the Office of Head of State is a
very important one as these duties are vital to maintaining the
nation’s political unity and guaranteeing the constitutional
powers. But the significance of the Office is far greater than that
and can in no way be combined with the responsibilities of any other
high office or function.”
6.5 In light of the above I am
convinced that we should retain the office of Non-Executive
President. As I have publicly stated on previous occasions, what is
worth modifying is the system by which we elect our President. I do
not believe that it would be practical to have a Non-Executive
President voted for as in a General Election. However the voice of
the People on such an occasion could best be expressed through the
National Civil Society Board.
6.6 One option would be for the
National Civil Society Board to put forward up to five nominees who
in its view satisfy the criteria for President, such as those
outlined above. The Prime Minister would then choose one of the
nominees as the Presidential Candidate for election by the Electoral
College based on a specified majority, say 3/5ths of the members
voting. Alternatively the Prime Minister could put forward up to five
nominees considered to satisfy the above criteria to the National
Civil Society Board which would in turn nominate one individual from
among such nominees as the Presidential Candidate for election by,
say, 3/5ths of the members voting at the Electoral College.
6.7 Another option would be for
the National Civil Society Board to put forward up to five candidates
and the Electoral College would then vote, based on a preferential
system of voting, for the individual to be elected President from
among such candidates, subject to gaining 3/5ths of the votes of
members of the Electoral College.
7.1 At
present the President, in his discretion, appoints nine persons as
Senators “from outstanding persons from economic or social or
community organisations and other major fields of endeavour”.
Although these appointments are entirely within the discretion of the
President one assumes that some prior consultation takes place with
persons whom the President believes may be in a position to make
appropriate recommendations. In this context consideration should be
given to formalizing such consultation by introducing a role for
recommendations to be made through the National Civil Society Board.
7.2 Additionally
the areas of endeavour identified in the Constitution could be
expanded to include other disciplines and different geographies so as
to be more representative of all of Trinidad and Tobago, which no
doubt is already considered an important factor but should be stated
expressly.
8.1 At
present the Constitution of Trinidad and Tobago imposes no limitation
on the period of time for which a person may hold the office of Prime
Minister. Section 76(1) of the Constitution simply confers power on
the President to appoint to that office, the person who the President
determines as best able to command the confidence of a majority of
members of the House of Representatives, thus making it possible for
a person to serve as Prime Minister for extensive periods once the
precondition is satisfied.
8.2 It
is recommended that the Constitution be amended, in order to limit
the period of time for which a person may hold office as Prime
Minister to periods (whether consecutive or not) which when added
together do not exceed nine years, however, an incumbent Prime
Minister shall not be required to vacate his office by reason only of
the fact that after his appointment, he exceeds the nine year limit.
This provision works in tandem with the provision which specifies a
fixed election date.
8.3 This
constitutional limitation is considered desirable in order to
strengthen democracy by encouraging the infusion of new leadership at
the highest level of Government as well as to encourage successorship
within political parties. Similar time limitations have been imposed
in relation to Heads of State or Governments in Commonwealth
countries such as Dominica, Nigeria and South Africa and in other
countries such as the United States of America, Mexico and Chile.
8.4 I
believe we do a great disservice to our Prime Ministers to leave the
option open to an unlimited number of terms as one would have to be
less than human not to succumb to the hubris which surrounds such
longevity in office as Head of Government.
9.1 I
recommend that a Constitutional amendment fixing the election date be
adopted in order to level the playing field between political parties
so that the incumbent Prime Minister does not have an unfair
advantage by being entitled to name the date. The electorate, as well
as the political parties, will know well in advance of the election
date and cannot be taken by surprise, save in circumstances where
there is a no confidence motion.
9.2 It
is said that a Prime Minister can still manipulate the system by
causing a no confidence vote to be initiated. This would be a very
risky move by a Prime Minister and may in fact backfire and therefore
is, in my view, unlikely.
9.3 Our
Republican Constitution permits a Prime Minister to direct that the
President dissolve Parliament at any time. Additionally if a vote of
no confidence in the Prime Minister is passed in the House of
Representatives the President is required to dissolve Parliament. An
election must be called within three months of the dissolution of
Parliament.
9.4 The
amendment proposed will maintain the right of the President to
dissolve Parliament if a vote of no confidence is passed but fixes
the date when an election is to be held consequent upon the
dissolution of Parliament following a vote of no confidence.
9.5 The
proposed amendment will also in ordinary circumstances specify that
Parliament fix the Election Date as, for instance, the third Monday
in November of the fifth anniversary of the prior election. Such an
amendment would allow for varying the Election Day in certain
circumstances such as a conflict with a religious holiday.
10.1 It
is said that in Trinidad and Tobago we have a winner take all system
of government. As a result we have a situation where post an election
it is nigh impossible to get a critical mass of people supporting the
national agenda for development as espoused by the Government.
10.2 In
this context I believe that there is a need to introduce a National
Economic and Development Council as an independent institution under
our Constitution. The role of this Council would include:
- Recommending allocations of funding to (a) the Central Government and each Ministry, (b) the Tobago House of Assembly, and (c) each Regional Corporation and Municipality;
- Developing policy recommendations for Energy, Education, Security and Crime, Health, National Service and other Portfolios which ought to straddle different administrations. In this way we will retain consistent policy directions in these matters with successive administrations and allow for the hard development decisions to be made away from partisan self-interest.
10.3 The
members of the Council could be appointed by the President based on
nominees recommended by the National Civil Society Board. The Council
would be mandated to consult with the Government, the Opposition,
Independent Senators, the THA, the National Civil Society Board and
other stakeholders.
11.1 I
would recommend that we entrench in our Constitution the requirement
to have legislation which makes arrangements for Local Government,
the extent of the jurisdiction of local government bodies and
provisions for their funding by the Central Government in an
equitable manner (see recommendations on National Economic and
Development Council, Section 10) so that we minimize the winner take
all syndrome which tends to marginalize communities which are not
supportive of the party which forms the Executive in the Central
Government.
11.2 The
local government level is the point at which people’s lives are
impacted most directly and the opportunity to have a real interface
between local government officials and people in the communities in
which they operate and therefore true representative government. If
we get the local government arrangements right then as a consequence
we are likely to have a diminishing of the fractures in our Society.
11.3 It
is worth reviewing the statutory provisions from the South African
Constitution which could be adapted to local circumstances.
12.1 I
am convinced that the time has come for our Constitution to mandate
that legislation be introduced to regulate political parties and
their financing and to introduce a Constitutional Office of Political
Ombudsman. The role of the Political Ombudsman would be to ensure
compliance with such legislation as well as a Code of Political and
Electoral Conduct.
12.2 Indeed
it seems to me that given the importance of political parties in the
democratic process that the State should undertake to make funds
available to political parties who, for instance, can demonstrate
that they have achieved a minimum threshold of support from the
electorate.
12.3 In
this way political parties will become more sophisticated and would
better position themselves to promote developmental ideas for the
improvement of our nation and its people. All of this does not have
to await constitutional change, nevertheless to my mind it is so
fundamental to our development as a Nation that I believe that the
obligation to have such legislation should be entrenched in our
Constitution.
12.4 I
would be happy to supply a model of a Code of Electoral Conduct which
the Political Ombudsman would enforce.
13.1 The
issue of procurement falls in the same category as party financing,
as in my view it is essential to our development as a Nation. Our
Constitution should mandate that procurement legislation, which is
effective and efficient while at the same time allowing for
transparency and accountability, be made part of our laws. (See
provision to that effect on South African Constitution below).
13.2 Similarly
the Procurement Regulator, or whatever term is given to the
individual with responsibility for regulating procurement, should
become a Constitutional Office with the necessary resources and
funding to enable such regulator to properly perform his or her
functions, in much the same way as the Auditor General is required to
be resourced.
13.3 (South
Africa Constitution) Section 217. Procurement.-(1) When an organ of
state in the national, provincial or local sphere of government, or
any other institution identified in national legislation, contracts
for goods or services, it must do so in accordance with a system
which is - : equitable, transparent, competitive and cost-effective.
(3)
National legislation must prescribe a framework within which the
policy referred to in subsection (3) must be implemented.
14.1 On
a fairly regular basis the DPP has lamented that he has no power to
investigate criminal conduct with special reference to white collar
crimes. It seems to me that the Anti-Corruption Investigation Bureau
(ACIB)
which now falls under the auspices of the Office of the Attorney
General would best be placed under the control of the DPP so that he
may direct and control their operations.
15.1 The Constitution at
present only mandates the Auditor General to carry out audits of the
public accounts and requires the State to provide adequate staff.
15.2 We need to amend the
Constitution to (i) expand the jurisdiction of the Auditor General to
include State Enterprises; (ii) permit the Auditor General to engage
the services of external auditors; and (iii) require the State to
provide appropriate financial resources to the Office of the Auditor
General.
15.3 The Auditor General should
also be empowered to conduct performance and value audits as well as
investigative and forensic audits. Where suspicious circumstances
arise during the course of an audit this would enable the Auditor
General to pursue these more expansive activities. Query whether in
appropriate circumstances the Auditor General should be mandated to
refer such matters to the Director of Public Prosecutions.
15.4 The Auditor General is
required to report to Parliament and this is a key oversight tool to
assist Committees to perform their watchdog role. It is expected that
with the appropriate financial resources and the ability to engage
external auditors Parliament will in future be presented with up to
date financial reports.
16 Service
Commissions
16.1 Whatever
the role intended for the Commissions as constituted under our
Constitution it seems to me in their current mode of operation they
are not the optimum arrangement for achieving the intended
objectives. This is not intended as a criticism of the boards or
staff of any Commission, as to my mind the real problem is that the
Constitution does not have an appropriate structure for the roles of
the Commissions. It has been said that the Commissions were
introduced into our Constitution in order to protect the public
service from politicians.
16.2 In
the case of the Public Service Commission would not this same
objective be achieved by having the role of the PSC being restricted
to (i) the development of guidelines for the operations of
Ministries; (ii) the appointment, supervision and regulation of
Permanent Secretaries and their performance; and (iii) taking into
account any report that a Minister would like to make regarding the
performance of the Permanent Secretary?
16.3 The
Permanent Secretaries would then have to account to the PSC for their
performance and attainment of the objectives of the Ministry to which
they are assigned. In such an arrangement the role of the Permanent
Secretary (the de facto CEO of the Ministry) would include (i)
managing the operations of the Ministry within the guidelines
established by the PSC; (ii) advising on and implementation of plans
to achieve the strategic goals and objectives set by the Minister;
(iii) reporting to the Minister and the PSC; and (iv) ensuring
effective human resource programs are developed and maintained to
support the strategic goals of the Ministry (including recruiting
heads of departments and other staff, performance management,
training, succession planning, employee relations, and disciplinary
action).
16.4 An
appeal by any member of staff in relation to any dispute which
arises, after exhausting all avenues for mediation, should perhaps
best be referred to the Industrial Court, even if a special division
has to be established to deal with claims by public servants. By this
means we would have developed a system in which the Permanent
Secretary has responsibility for matters relating to the staff of a
Ministry, he or she being the person responsible for ensuring the
performance of the Ministry, rather than the over centralised system
involving Commissions in which authority is diffused and as a result
no one has responsibility and no one is accountable.
16.5 Is
Constitutional change required in order to achieve these objectives
and bring the arrangements for the Civil Service and the Teaching
Service in line with modern management practices? Section 127 (1) of
the Constitution provides “A Service Commission may, with the
approval of the Prime Minister and subject to such conditions as it
may think fit, delegate any of its functions other than any power
conferred by Section 129, to any of its members or - …….(b) in
the case of: (i) the Public Service Commission, to any public officer
……; (ii) The Teaching Service Commission, to any public officer”.
16.6 In
the context of the authority to delegate any of its functions by
virtue of Section 127(1) it seems to me that there are no obstacles
which would prevent these Service Commissions from delegating
appropriate authority to public officers, such as Permanent
Secretaries, and so achieve a modern management structure which would
better foster performance and goal and outcomes oriented service.
Moreover by virtue of Section 129(1) the Service Commissions, with
the consent of the Prime Minister, may regulate its procedures and
confer powers and impose duties on any public officer to better
achieve its objectives. If thought advisable, relevant amendments
should be made to the Public Service Commission (Delegation of
Powers) (Amendment) Order, 2006.
16.7 The
Commission may wish to review the South African Constitution relative
to public administration which it may well want to adopt where
relevant.
17.1 What
should we do with the Privy Council? After 50 years of Independence
should we cut the umbilical cord, the last vestige of our legal ties
to the Colonizer? The Privy Council has served us well over the last
50 years and I am certain there are none who will reject such a
statement, in light of the body of jurisprudence developed over the
years in which the Privy Council has served as our final court of
appeal.
17.2 To
address that issue we must ask ourselves a number of pertinent
questions as it relates to both the Privy Council and the Caribbean
Court of Justice (which under the Treaty of Chaguaramas was intended
to be its successor). Some of those questions include:
(i) Can the Caribbean produce
or attract eminent judges in whom we can repose confidence as judges
of our final court of appeal?
(ii) What is the calibre of
judges serving in the Privy Council and the Caribbean Court of
Justice?
(iii) How does the
independence of the judges serving in the Privy Council compare with
that of the Caribbean Court of Justice?
(iv) Would litigants repose the
same level of confidence in the Privy Council as in the Caribbean
Court of Justice?
(v) Will the UK continue to
extend the services of the Privy Council as our final appellate
court?
(vi) Would the cause of
Caribbean integration be better served by having an indigenous
institution as our final court of appeal?
(vii) Does the establishment
of a Supreme Court by the UK as its final court of appeal change the
equation?
(viii) Would appeals to the
Caribbean Court of Justice be less burdensome and costly to the
litigant as compared to appeals to the Privy Council?
(ix) Would justice be better
served by having judges who are more familiar with the societies and
culture in which we live in the Caribbean?
17.3 I
am convinced that an inquiry into matters raised by such questions
would conclude that the Caribbean Court of Justice would better serve
us here in Trinidad and Tobago as our final court of appeal. The
problem I suspect is cutting the umbilical cord sounds so final. Some
may ask: is the Privy Council not always right? Well the only reason
that in a sense they are always right is that there is no further
appeal from a Privy Council decision. The core question really is
whether the reasonable man or woman travelling across the Nation in
our maxi taxis reposes confidence in the Caribbean Court of Justice?
And if not, how will we as a Nation ever reach that ultimate decision
which would allow us to commit to that final act of Independence?
17.4 What
that raises in my mind is the issue as to whether we can take the
journey towards cutting the Privy Council umbilical cord in stages.
In that light I would like to propose for consideration that we
appoint the Caribbean Court of Justice as the court of origination
and, better yet, the final appellate court as well, for the hearing
of constitutional matters. Such a move would dramatically reduce the
time taken for matters involving the Constitution, as all such
actions would be initiated in the Caribbean Court of Justice without
the need to go through the process of a hearing in the High Court and
the Court of Appeal. If we wanted to do this in two stages then one
could still have a right of appeal to the Privy Council in such
matters, with a sunset clause of say 1 year after which the Caribbean
Court of Justice would serve as both the court of origination and
final appellate court for constitutional matters.
17.5 Such
an approach would give us an opportunity for trust in the Caribbean
Court of Justice to grow in the estimation of the public. I recognise
that this recommendation does not conform to the Treaty of
Chaguaramas and therefore it would be a matter for the Caribbean
Court of Justice to determine whether it would accept jurisdiction
over Constitutional matters as proposed. The truth is that Trinidad
and Tobago, along with the majority of other CARICOM countries, have
not conformed to the Treaty of Chaguaramas by adopting the Caribbean
Court of Justice as their final appellate court. I would expect
therefore that expanding its jurisdiction in this way should be
welcome. Indeed it may be a measure which the other members of
CARICOM which have not yet adopted the Caribbean Court of Justice,
may elect to follow so that they too expand the jurisdiction of the
CCJ in the stages which I have proposed.
17.6 The
provisions relating to the Caribbean Court of Appeal with respect to
Constitutional Matters can be adapted from the South African
Constitution in which a specialist Constitutional Court is
established.
18.1 In
furtherance of developing a participatory democracy one tool which
would give the people a voice in important matters which impact
directly on them would be to introduce a system in which referendums
are permitted. To this end I would recommend that the Constitution
include a provision that an Act of Parliament must prescribe a
process for the calling of a referendum to ascertain the will of the
electorate in relation to questions of public importance. This still
leaves open the question whether such referendums should be binding
on the Government or only persuasive and the percentage of favourable
votes required to support any proposition.
18.2 It
is
of course very difficult to determine in advance what matters would
fall within the ambit of a question of public importance. It
certainly would be a brave, or foolhardy, government which would
ignore the views of a significant majority of the people as expressed
in a Referendum. In this context it may well be that the preferred
approach would be to have non-binding referendums so as to retain as
much flexibility as possible, yet appreciating that governments are
more than likely to accept the results of a referendum supported by a
significant majority of the electorate.
19.1 Many
of our commentators have made the point that we inherited a
governance system in which the Colonial Governor exercised power
without the people having the right to make any input and that in
Trinidad and Tobago we have perpetuated that system of governance,
where the people feel totally powerless once they have elected a
government. As a result we have created a Society that has become
totally dependent on Government without individuals taking
responsibility for their own welfare. I believe that one starting
point to reverse this cycle of dependency is to introduce into our
Constitution an obligation on the part of citizens to observe and
perform duties and responsibilities commensurate with the fundamental
human rights and freedoms we enjoy.
19.2 By
way of example the duties and responsibilities of citizenship might
include matters relating to:
- Obeying the law
- Being a good parent
- Taking responsibility for oneself and one's family
- Being respectful of the views, culture, religion and customs of others
- Helping others in the community
- Protecting and enjoying our heritage and our environment
- Devoting ourselves to our education and enhancing our skills and potential
- Promoting harmony and the spirit of common brotherhood amongst all the people of Trinidad and Tobago transcending religious, ethnic or sectional diversities
- Valuing and preserving the rich heritage of our composite culture
19.3 In
this connection see Article 51A of the Indian Constitution.
20.1 As
Sunity Maharaj has said in her column in the Trinidad Express of 24th
February 2013 “All
over the Caribbean-and indeed the world - the search is on for a more
functional political system that offers greater representation of
individuals and interests”.
20.2 One
avenue through which the voice of the people can be heard is through
membership by citizens in Civil Society Organisations and I would
urge us to embody within our Constitution mechanisms through which
Civil Society Organisations can participate in making decisions which
affect governance in T&T.
20.3 There
is a growing trend towards members of the public wanting to have a
greater say in the governance of the Country and not simply rely on
their parliamentary representatives to represent their interests.
Indeed we are short changing ourselves by not seeking out the
collective wisdom which resides among our citizens. If we channel the
views of citizens into the decision making process not only will we
have better governance but as a People we will take more
responsibility and be more patriotic in supporting the national
interests and development of Trinidad and Tobago. The question is
how does one achieve such people power which goes beyond electing a
government every five years?
20.4 It would of course be
impossible for any system of government to allow
for the voice of each individual citizen to be heard on every single
decision of government. However there is ample room to do better than
we are doing now. One avenue through which the voice of citizens can
be channelled is through their membership in civil society
organizations, including bodies such as Village Councils, Community
Based Organizations, Business, Professional, Religious, Sports,
Cultural, Youth and Women’s Organizations and Credit and Labour
Unions.
20.5 A
system could then be devised, in the Constitution or through separate
legislation, for these civil society organizations to form an
umbrella body to be known as the National Civil Society Board.
20.6 The
National Civil Society Board would perform functions with respect to
the Central Government in specified areas of national life and in
addition consideration could be given to assigning it responsibility
for carrying out important constitutional roles such as, nominating
candidates for Head of State and participating as members of
Parliamentary Committees.
20.7 The
mechanics for the formation of a National Civil Society Board can be
worked out with Civil Society Organisations. The role proposed for
the National Civil Society Board is further found in Clauses 1.4 (vi)
(a), 2.10 (iii), 3.7, 6.5 - 6.7, 7.1 and 10.3.
PART
2 - PRINCIPLES
- Fostering a participatory democracy
21.1
Our founding fathers underscored the well-known principle that our
people are our most precious resource when they stated in the
preamble to our Constitution that the People of Trinidad and Tobago:
" have
asserted their belief in a democratic society in which all persons
may, to the extent of their capacity, play some part in the
institutions of the national life and thus develop and maintain due
respect for lawfully constituted authority".
21.2 I
believe that in order to foster a better participatory democracy in
keeping with the philosophical underpinnings of our Constitution, we
must find ways to allow citizens to participate in the institutional
life of our Country which will in turn engender a sense of belonging
and patriotism and so promote nation building.
21.3 In
the words of Anders B. Johnsonn, Secretary General of the
Inter-Parliamentary Union, “There
can be no democracy if we do not include all voices in
decision-making”
and further “The
principle and practice of solving differences through dialogue is
what sets democracy apart. Our ability to listen and understand is
therefore, as important if not more so than our ability to express
our opinion”.
22 What
are the Objectives of a Constitution? (Adapted
from Article by
Dr. Anil Kumar Mohapatra)
22.1 Pandit
Nehru’s statement on the Indian Constitution during debate in the
Constituent Assembly (CA) on 8 November 1948 sounds very appropriate
to be quoted here. Nehru said, "The
Constitution is after all some kind of legal body given to the ways
of Government and the life of the people. A Constitution, if it is
out of touch with the peoples life, aims and aspirations, becomes
rather empty: if it falls behind those aims, it drags the people
down. It should be something ahead to keep people’s eyes and minds
made up to a certain high mark. Remember this, that while we
want this Constitution to be as solid and as permanent a structure as
we can make it there should be a certain flexibility. If you
make anything rigid and permanent, you stop a nation’s growth, the
growth of a living, vital, organic people. Accordingly,
our Constitution was drafted keeping in mind the expectations of the
freedom loving Indians of that time leaving enough scope for its
dynamism to cater to the needs of future generations as well."
22.2 Through
our T&T Constitution we have sought to develop a democratic
political culture. Democracy is an important objective which
contributes to stability in the society and it secures the peaceful
change of rulers. It allows dissent and encourages tolerance. It
rules by persuasion, not by coercion. It stands for a constitutional
government, the rule of law, inalienable rights of citizens,
independence of the judiciary, free and fair elections, freedom of
press and all the other fundamental human rights which we enjoy.
22.3 But
a Constitution is really a lifeless instrument. As Granville Austin
has very appropriately said, “Constitutions
do not work, they are inert, dependent upon being worked by
citizens and elected and appointed leaders”.
What
we need to develop is the right type of political culture for
sustaining the Constitution.
23 Democracy
23.1 So what are the values
exemplified by a democratic system of government? The following
signposts or principles of democracy are advocated as being essential
elements of democracy: Citizen Participation, Equality, Political
Tolerance, Accountability, Transparency, Regular Free & Fair
Elections, Economic Freedom, Control of the Abuse of Power, Accepting
the Results of Elections, Human Rights, Multi-Party Systems, The Rule
of Law, Bill of Rights (see
http://www.lawanddemocracy.org/pdffiles/signposts.dem.pdf).
23.2 We
should therefore measure any system of governance we seek to
implement in our Constitution to the extent that they support such
democratic principles.
24 Voting
and Electoral Systems
24.1 One
of the crucial decisions that will have to be made in any new
Constitution is to determine what type of electoral and voting
systems would best underpin our democracy. In making this
determination I strongly recommend that we consider the following
criteria (substituting Tobago for Maori Representation) for judging
voting systems, which were identified by a 1992 Independent Panel in
New Zealand when it embarked on a process to determine if New Zealand
should change or retain its first past the post voting system:
(i)
Legitimacy
Do people on the losing side
accept the results? Does the community as a whole accept the
voting system as the best possible basis for running the country?
(ii)
Political integration
Does a voting system unite a
country or divide it? Does it promote respect for different
points of view?
(iii) Effective government
Can a government elected under
a particular voting system achieve what it sets out to do? Will
the government last, or will it fall because it does not have a
majority in Parliament?
(iv)
Effectiveness of Parliament
Will Cabinet dominate
Parliament under a particular voting system? Does the voting
system mean that Parliament can challenge and debate government
policies in the way it is meant to?
(v)
Fairness
Do political parties win a
share of the seats that is similar to their share of the votes? Is
there a marked difference between the number of seats some parties
get and the votes they win?
- Representation of minorities and special groups
How well are the interests of
ethnic minorities
and other groups such as business
people, workers and women
represented in Parliament under various voting systems? How well
are such groups themselves represented?
(vii)
Tobago representation
Will a particular voting system
help or hinder representation of people of Tobago? Are
Tobagonians fairly represented in Parliament? How will different
voting systems affect this? How will different systems affect
the existing separate representation of Tobagonians?
(viii)
Representation of constituents
Does a voting system encourage
close links between people and their Members of Parliament?
How easy will it be for
constituents to get their ideas across to their Members of Parliament
under a particular voting system?
(ix)
Voter participation
Do voters understand how the
system works? Is the method of electing Members of
Parliament straightforward or is it difficult to follow?
(x)
Effective political parties
Will a voting system give us
political parties that are too strong or too weak? Will a
particular voting system help parties listen to and act on voters’
views and concerns?
24.2 I
anticipate that in its consideration of these criteria the
Constitution Commissioners will compare several different Electoral
Systems in order to determine what would be most suitable and best
achieve the type of participatory democracy which will be
in tune with the lives, aims and aspirations of the people of
Trinidad and Tobago.
Respectfully
_____________________________
Timothy
Hamel-Smith
Eleven
Albion
Corner
Albion & Dere Streets
Port
of Spain
Mobile
680-5884
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