At the beginning of August, Trinidad & Tobago’s Prime Minister Keith Rowley, leader of the People’s National Movement (PNM) government, received the report of the National Advisory Committee on Constitutional Reform, and a couple of weeks later the report was released to the public. It was immediately dismissed by Kamla Persad-Bissessar, leader of the opposition United National Congress (UNC), as “a con job to be used as a PNM manifesto for the upcoming general election”, and there are elements of the report that would not find favour even with the prime minister. It would seem, therefore, that the effort to reform Trinidad & Tobago’s 1976 constitution still has a long way to go. Nevertheless, the process to date has thrown some interesting light onto contemporary Trinidad and the challenges it faces.
The National Advisory Committee on Constitutional Reform was appointed by the prime minister in late January 2024 with the aim of producing a Working Document for a Constitution Conference to be convened in June 2024. This proved to be too ambitious a timescale, and an extension was granted.
The background to the committee’s task, as articulated in its report, was “a clear appreciation that the existing 1976 Republican Constitution, now in place for 48 years, remained essentially a colonial construct since the basic structure of the 1962 Independence Constitution was still embedded therein with all its assumptions about people, power, and the exercise of authority”. Also, the report added, the constitution was “lacking the ‘software’ of the unwritten conventions which suffused the British unwritten constitution”.
The report notes that the country’s traditional media, while giving greater voice to ordinary people, does not have an especially strong influence on policy or the conduct of politics while the perception is that the business and political elite are “deferential to political power”. Academic criticism has also weakened, and “even the political and social commentary of the traditional calypso art form has lost much of its sting in recent decades, yielding to soca music and its mainly apolitical lyrics”.
Section II of the report provides an interesting analysis of the social and political developments since 1976 that must inform any constitutional reform. It highlights two standout changes. First, the decline in oil and gas production. The report notes that “oil production is now at the lowest level since before independence in 1962 and production of natural gas is at the lowest level since 2003”. The second major development has been the escalation of crime since independence, particularly since the attempted coup of 1990 since when escalating gang violence and murders have pushed Trinidad “into the top echelons of countries with very high murder rates”.
In the 1976-1980 period, serious crimes averaged 10,600 per year. The rate doubled to 20,415 per year in the 2006-2010 period. The rate did then decline substantially to 12,350 per year in the 2016-2020 period – but, the report says, “the decline may reflect lower levels of reporting since other data appear to conflict with the official police data”. The detection rate for serious crimes is only 33%, meaning that two out of three serious crimes remain unsolved.
The real problem, however, is the murder rate. In the ten years from 1991-2000, there was an average of 110 murders per year. The average from 2001-2010 was 349, with a peak of 547 in 2008. The average for the next decade, 2011-2020, was up again at 437, and the murder rate escalated further still in 2022 and 2023 with more than 600 murders in each of these two years. The report says: “The consensus of expert opinion is that these murders are mostly gang-related, perpetrated by young males mostly of African descent, residing in urban areas and are driven by turf wars fuelled by the drug trade and reprisal killings”.
The report also looks at emerging challenges, including climate change and the testing geopolitical environment with wars in Europe, Asia, Africa, and the Middle East and the threat to “the coherence of the United Nations system”. The Global South, of which Trinidad & Tobago is a part, “is asserting itself in attempting to reform and reshape the international political order and the international financial system established after the Second World War”. Regional challenges include the Venezuela-Guyana dispute and the “intractable violence in Haiti”. The report also says that intra-regional migration “is likely to increase”. With all this challenging governments, the report says “our institutions must be modernised and be made fit for purpose to cope with and overcome these challenges and the economic and social disruption that is likely to result”.
In a searing conclusion, the report warns: “Trinidad & Tobago is a society of profound contradictions. There is a veneer: the appearance of prosperity and even sophistication…Yet we are simultaneously a society marred by violence (domestic and criminal), disrespect, official indifference and inaction, institutional inertia, conflict and litigation, lack of trust, individualism and intolerance.”
Finally, the report says: “Since 1976, the economic and social progress we have managed to achieve has not been sufficient to ameliorate social conditions for the many who have been drawn into a life of crime and criminality and to overcome the deficiencies of colonial institutions we adopted at Independence, which have fettered the appropriate response to these problems. In fact, conflicts between and among holders of high office have compounded the problems and inhibited resolution or reform. This is the context in which we engage in constitutional reform in 2024 in Trinidad & Tobago.”
Section IV of the report provides a detailed analysis of the current constitutional arrangements and how they should be reformed. It starts with the preamble, which currently “is written in the third person, creating the impression that it was given to us instead of being created by us. This reflects the monarchical system in which we were subjects lacking agency and voice.” The new constitution, the report states, should be written in the first person, and “it must also clearly declare our intent and willingness to assume responsibility for ourselves”.
Following the preamble, the new constitution, it is argued, should have five sections dealing with sovereignty, individual rights and freedoms, the separation of powers, democracy, and the rule of law.
The first key recommendation for the sovereignty section is that colonial era laws should no longer be protected under an Existing Law clause. They should be subject to challenge “for infringing fundamental rights and freedoms and declared unconstitutional”.
The second recommendation for the sovereignty section relates to the much-debated right of appeal to the British Privy Council. This, the report quotes a constitutional expert as saying, “constitutes a negation of our sovereignty”. The report agrees, saying it would be “wholly inconsistent with reform to retain the Privy Council as the final court of appeal”. It adds that, with the Caribbean Court of Justice (CCJ), “we now have… a Caribbean court which, with courage and competence and without any hint of political interference, has been adjudicating appeals for the last 19 years from Barbados and Guyana, and more recently from Belize, Dominica, and St Lucia, and in the process, improving access to justice and developing our jurisprudence”.
There are no surprising or overly controversial recommendations in the section on individual rights and freedom. However, the report does recommend that the constitution should emphasise that with rights come duties, including defending the state, contributing “in proportion to each person’s needs” to the revenues required for providing public services, to respect the rights and freedoms of others, and for parents “to undertake their obligation of care, maintenance and upbringing of their children in a safe and wholesome environment”. It also lists as a fundamental duty the need for each person “to work according to their capacity in useful employment, creating for himself/herself opportunities for such labour where none may seem immediately available”.
The two most interesting sections are to do with the separation of powers and democracy. At the heart of the separation of powers section is the observation that parliament is not doing its job properly. The report notes that there is “a near universal complaint that members of the House of Representatives do not serve their constituents very well, nor are parliamentary committees effective in their oversight of the Executive and the independent institutions”.
On parliament, the report notes in particular that when members of parliament (MPs) become ministers, it is their parliamentary duties that suffer. For this reason, it says, the view that MPs should not serve as ministers “has considerable merit”. It adds: “There would seem to be a very good reason for effecting greater separation between the Executive and the Legislature.” However, the report does not favour adopting the US system, saying that this “would actually result in an even greater concentration of power, which is clearly not what the public wants”.
The proposed solution is to expand parliament, limit the number of government ministers who may be drawn from parliament, and to limit the number of ministries. The report suggests a limit of 18 ministries and limiting the number of ministers who can be drawn from parliament to eight, inclusive of the prime minister. This way “there will be a sufficiently large backbench for attending to parliamentary matters as well as scrutiny of the Executive, the Judiciary, and the ‘fourth branch’ independent institutions”.
The independent or ‘fourth branch’ offices over which the president would continue to have the power of appointment are the auditor general; ombudsman; the chairperson and members of the Legal Services Commission, Public Service Commission, Teaching Service Commission, Integrity Commission, Salary Review Commission, Public Service Appeal Board, Advisory Committee on the Power of Pardon, and Election and Boundaries Commission; and the chairperson and deputy chairperson of the Tax Appeal Board. To this list, the report recommends adding the Equal Opportunity Commission and the Procurement Regulator.
With regard to presidential powers, it is noted that these are not just ceremonial and include powers of appointment over independent offices “which are essential for checking the power of the Executive”. With this in mind, the report suggests a method short of direct election that ensures the president is not just a governing party cipher. It recommends that candidates for the presidency should be nominated by the public, vetted by the President Election Committee, and elected by an expanded electoral college comprising all elected members of the house of representatives, the senate, and the Tobago house of assembly as well as local government municipalities and regional corporations.
Moving on from the separation of powers to the core issues of democracy, the report begins with the premise that “a representative, responsive and responsible Parliament is the beating heart of a democratic society”. But it then goes on to list the shortcomings of the present first-past-the-post (FPTP) electoral system. Its main attraction is the direct linking of members to constituencies, yet, the report notes, “the perennial complaint is that once elected, representatives are rarely seen in their constituencies and do not take back to their constituents the legislation that is before Parliament for debate and direction”.
Furthermore, the reality is that the electorate doesn’t vote for a constituency representative but for a party and its leader. Also, the FPTP system can produce governments that do not have majority support at the national level. “In effect”, the report says, “the FPTP system in Trinidad & Tobago does not pass the test of effective representation of constituents and may produce minority governments, wasted votes, and hence the perception and reality of disenfranchisement and inequity”. On the other hand, the report admits, FPTP does on the whole produce stable governments, with no lengthy negotiations between parties for the formation of a government after a general election.
Having looked at all the pros and cons, the report says that “the Committee is persuaded that in response to the robust concerns expressed by most of the public, the time is opportune to consider the shift to a form of proportional representation”. It lists the “multiple benefits” of such a shift as including a reduction in the number of “wasted votes”, thereby encouraging voter turnout; less feeling of alienation by sections of the population when their party is not in power; and the inclusion of a broader spectrum of ideas in the formulation of policy.
However, despite making such a strong case against FPTP, the report ends up by recommending only a partial change to the current system. “To maintain and indeed strengthen constituency representation and citizen participation” the Committee recommends retaining FPTP for elections to the house of representatives. However, when voting for a constituency member in a general election, the voter will also be asked to vote for a political party and the result of this latter vote will determine the composition of the senate, meaning that smaller parties that are unlikely to win a seat in the house of representatives could still gain seats in the senate. The senate “would remain a deliberative body that scrutinises legislation and gives voice to interests other than local or constituency interests”.
The report suggests increasing the number of senate seats to 55, with the president appointing 10 independent senators and five Tobago senators. The remaining 40 seats would be allocated proportionately on the basis of the list votes in the general election.
One other major change recommended in the report is to fix the date of elections, thus taking away the prime minister’s discretion to call elections early. The report calls this “an arbitrary power which can be abused” and it says that a fixed date for elections would be “consistent with fairness, allowing all political parties, as well as the private sector, to plan their affairs knowing precisely when an election is due”.
Additionally, the report recommends that a prime minister should be limited to two consecutive terms with a gap of at least five years before a former prime minister could again be considered for the post. During the term of a parliament, a vote of no confidence in the prime minister would lead to the president appointing a new prime minister or dissolving parliament.
The next stage in the reform process is due to be the calling of a National Constitutional Conference made up of delegates from political parties and the general public. Perhaps optimistically, the report concludes with the words: “The Committee anticipates that the primary outcome of the Conference will be consensus on the legislative proposals for comprehensive constitutional reform. The People’s wishes are expected to be carefully considered and respected.”