Trinidad and Tobago
46 Years of Republicanism: Constitution Matters
Perhaps it is fortuitous that the British Monarch passed away in the midst of our "Independence Season" August 31, Independence Day to September 24, Republic Day. Her death has come just as this former colony marks its 46th anniversary as a Republic.
The queen is continually referred to in all of the pageantry of her last rites and the formalization of the new monarch King Charles III as the sovereign. This suggests that the sovereignty of the United Kingdom and each of its realms as well as that of each of the former colonies which maintain the UK monarch as their Head of State also vest their sovereignty in the monarchy of the former imperial power.
The issue of sovereignty is a central issue in constitutional affairs for every country and people and between and among nations.
Our Independence Constitution of 1961 was made as an Order in Council of June 26, 1961 to come into effect "on a day to be appointed by the Governor."
The Governor, by section 1 of the Constitution, was to be "appointed by Her Majesty by Commission under Her Sign Manual and Signet and shall hold office during Her Majesty's pleasure" and "have such powers and duties as are conferred or imposed on him by or under this Constitution or any other law and such other powers as Her Majesty may from time to time be pleased to assign to him....according to such instructions, if any, as Her Majesty may from time to time see fit to give him."
Section 17 of the Order in Council stated, "Her Majesty reserves to Herself power, with the advice of Her Privy Council, to revoke, add to, suspend or amend this Order."
The British Monarch, therefore, remained not just the Head of State of this independent country but reserved the right to "revoke, add to, suspend or amend" the very Order to which its Constitution was an annex.
The sovereignty of Trinidad and Tobago remained vested in the British sovereign, their monarch.
It is no accident that the law to remove this monarch, Act No 4 of 1976, the Republican Constitution was passed in 1976 with a commencement date of August 1, 1976. By this Act, the sovereignty of this country was, we were told, vested in the Parliament on behalf of the people.
This concept was in keeping with the notion espoused by the 19th century English jurist John Austin, who, on investigating who exercises sovereignty in the name of the people or of the state, concluded that sovereignty is vested in a nation's parliament. A parliament, he argued, is a supreme organ that enacts laws binding upon everybody else but that is not itself bound by the laws and could change these laws at will.
Though the Republican Constitution was proclaimed on August 1, Republic Day is celebrated on September 24, the date on which the Parliament under the new Constitution first sat.
Our experience of the last 46 years gives us the opportunity to examine where, in fact, as opposed to British constitutional theory and legal definition, where the sovereignty of our country really lies and where it ought to.
Constitutional Changes Since 1976
Between 1976 and 2007, Parliament has passed 20 Acts amending the Republican Constitution.
These amendments have, in summary, had to do with:
i. Party matters and the Parliament with the introduction of the ‘crossing the floor' provision and the process of By-Elections to fill vacancies in the Lower House, created thereby or otherwise -- Acts 15 and 16 of 1978, and for removal of the Speaker of the House -- Act 17 of 1995.
ii. Amending the jurisdiction and powers of the Public Service Commission -- Act 8 of 1981, 13 of 1982, 177 of 1983, 21 of 1987, 8 of 1988, 10 of 1995, 43 of 2000, 82 of 2000.
iii. Amending the jurisdiction and powers of the Police Service Commission and the appointment of the Police Commissioner and Deputy Police Commissioners by final vote of the Lower House of Parliament -- Act 6 of 2006 and 12 of 2007 and a series of Orders of the President under those provisions since then.
iv. Requiring the Salaries Review Commission's Reports to be laid in Parliament -- Act 16 of 1978.
v. Providing for the filling of vacancies in the Judiciary -- Act 2 of 1988.
vi. Inserting the Tobago House of Assembly as part of the Constitution -- Act 39 of 1996.
vii. Introducing Joint Select Committees of Parliament to inquire into and report on Ministries, Municipal Corporations, Statutory Authorities, State Enterprises and Service Commissions -- Act 29 of 1999.
viii. Including the Tobago House of Assembly, Municipal Corporations, statutory boards and state enterprises and others under the jurisdiction of the Integrity Commission -- Act 81 of 2000.
ix. Including Senators, Judges and Magistrates under the jurisdiction of the Integrity Commission -- Act 89 of 2000.
For a table of constiutional amendments since 1976 click here.
Concentrating Power Rather Than Empowering the People
All the changes to the jurisdiction and powers of the Public Service Commission had to do with confirming the Prime Minister's power to veto senior appointments, extend the disciplinary powers of the Commission over public officers including those in acting positions and make criminal convictions automatic disciplinary breaches, and including employees of the Tobago House of Assembly (THA) and regional health authorities (RHAs, though RHA employees are not public officers).
Apart from the expansion of the jurisdiction of Joint Select Committees to have oversight roles over public bodies and constitutional bodies like Service Commissions, as well as the inclusion of the THA, all these other amendments to the Constitution since 1976 have either been to address party matters -- crossing the floor and allegations against a Speaker who was placed under House Arrest or to facilitate Government policies including privatization (RHAs) or more direct power of appointment of the top officers of the Police Service.
None of these amendments have had to do with improving the accountability of the elected or appointed members of Parliament or Ministers to those who elected them or to the public.
None of these amendments have increased the role of the people in decision-making which affects them or the society.
None of these amendments have resolved what President Richards at the 50th Anniversary of Independence, described as the ‘area of brokenness' in our Constitutional arrangements -- the issue of the relationship between Tobago and Trinidad and the right to self-determination of the people of both Trinidad and Tobago and ends the forced union and establishes a free and equal union between them.
The legislation relative to the work of the Integrity Commission has remained extremely weak in terms of enforcement or in deterring corruption or holding corrupt officeholders to account.
Vesting sovereignty in the Parliament has done little to ensure that the Parliament or Government (the Executive) acts in the interest of the People.
Proposals for further amendments in 2009 sought to further centralise power in the hands of the Head of Government while the Prime Minister continues to exercise even more powers in the absence of those changes.
The only proposal to give the electors some measure of control over the elected by establishing the Right of Recall to enable electors to hold their representatives accountable to them was unfortunately squandered in 2015.
This 46th Anniversary of our Republican Constitution is now perhaps the time for deep consideration to be given to vesting sovereignty truly in the people.
In this regard, and for the future of our nation, the Constitution and what we do with it matter.
Clyde Weatherhead, a citizen fighting for democratic renewal of the political and electoral processes of our governance arrangements.
This article was published in
Volume 52 Number 22 - October 1, 2022
Article Link:
https://cpcml.ca/Tmld2022/Articles/D520225.HTM
Website: www.cpcml.ca Email: editor@cpcml.ca