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THE CRF PERSPECTIVE ON CONSTITUTION REFORM
Dennis Pantin
All the political parties included a promise of constitutional reform in their manifestos for the last general elections. Recently the People’s National Movement set up a party committee on constitutional reform. The United National Congress also has been linking constitutional reform to its own support for legislative measures. As we also know, there have been at least two or three meetings between the PNM and the UNC on the issue of constitutional reform. So some things are happening. However, these things are marked by a disjuncture between discussions in private by political parties and we, the people of the society.
I therefore want to take you back to the background within which CRF was
formed and what we have been doing. CRF came out of a meeting called in
January 2001 by David Abdullah who invited representatives of trade unions,
NGOs and other interested parties, like myself, to a meeting at the rooftop
of the PSA. Jennifer Baptiste, Errol McCleod and Lyle Townsend were all
there together with a range of other people, The meeting took place in
the context where the general elections of 2000 had been won by the UNC
and then Prime Minister, Mr Panday, had requested then President Robinson
to appoint six of his losing UNC candidates as senators and Mr Robinson
baulked.
The issue became so contentious that the society appeared to be dividing in terms of those who were supporting Mr Robinson and those who were supporting Mr Panday: largely on the basis of race. Some of us felt that the issue was not as simple as that of either Mr Panday or Mr Robinson being in the wrong, but that there was a fundamental, constitutional, root factor, which explained this particular standoff.
So we decided to have a public discussion on the issue at La Joya, on
January 17, 2001 with presentations by Rhoda Reddock and myself. Lyle
Townsend chaired. We originally had identified ourselves as the Constitutional
Reform Committee (CRC) and then some people, Frank Clarke in particular,
felt that the name sounded to much like a proto-party in the making and
that this was not what we were about. I like to tell the story that we
had a meeting and agreed: ‘Well, let’s choose a different
word’. We started to bandy about words and Andy Burkett said ‘What
about ‘Forum’?’ That was the word that everyone agreed
upon: we are a Forum.
We are not a political party. We do not have any positions on which we
agree necessarily. We may agree, we may not agree. We don’t have
to: we are a forum. So we identified our mission serving as a catalyst
for constitutional reform in Trinidad and Tobago. If we get genuine constitutional
reform in Trinidad and Tobago, then we would have succeeded. We have therefore
continued to meet: sometimes inviting the public openly, sometimes simply
touching base with people who have, in a sense, indicated that interest.
And, within that, we have also formalised a working committee which meets
roughly monthly where we sit down and grapple with the issues along the
way.
I therefore want to share my interpretation of where we are in terms of
these deliberations. And I must tell you that my own thinking on constitutional
reform has been tremendously impacted upon by these discussions: sometimes
with four people, sometimes with fourteen, sometimes with forty; occasionally
with eighty or a hundred. In my interpretation, we have been grappling
with two central questions. The first of which, and this is fundamental,
is why do we need constitutional reform? Unless we can justify the question
of why we need constitutional reform, then nothing else matters. If we
have answered that question in the positive, then the second question
is how do we realise constitutional reform?
The Why and How of Constitution Reform
In brief, in terms of the answer to the first question, we think that
we need constitutional reform because our original constitution was crafted
in a highly elitist manner and with a significant overhang from our period
of Crown Colony rule. In the system of Crown Colony, everyone had to appeal
to the Governor to get anything done. Perhaps for understandable historical
reasons we attempted to graft onto that Crown Colony rule a different
system. But it retained many of the same components of the old system
and therefore we moved from Governorship to what I myself call ‘Governor-ment’.
We therefore continue to operate a system run significantly by prime ministerial
‘dictat’, if not dictatorship along the way. And, hence, one
of our slogans is that we need to shift ‘From Maximum Leadership
To Maximum Participation’.
The second reason why we think we need constitutional reform – and
there are many other reasons – is that, in constructing our constitution,
we have not taken account of our reality as a plural society where, undeniably,
people tend to have group affiliations, and these tend to be reflected
in our political choices, and those who take power. As a result of this,
we have a situation in which, at the end of elections, some people feel,
symbolically that they are in power and some people feel, symbolically,
that they are out of power. You combine both of those and in effect what
we have is a winner-take-all form of governance, dominated by a Prime
Minister. So the second slogan, which we have come up with, is ‘From
Winner Take All to All Take Win’. What we are groping for is a constitution
in which all will feel that they have won something at the end of the
day; that, in some way, they are represented in the portals of power..
Interestingly enough, there are people who have come to our forum- like
Chantal Esdelle and Rubadiri Victor and Robert Young - who have been persuaded
of the need for constitutional reform because of the fact that they cannot
get cultural expression. So, from the perspective of culture, they have
said that our system does not cater appropriately for our cultural heritage.
I personally come to CR as an economist in terms of the fact that our
economy is dominated by hydrocarbons, and the decision-making on these
hydrocarbons is taken outside of any kind of system of representation.
So Prime Minister has announced that we are going to have an aluminium
smelter. Now this means another allocation of the use of our natural gas.
At yesterday’s meeting, one of our participants was saying that
he is extremely concerned about the proposal for a pipeline to North America
because this will deplete our natural gas in a relatively short time period.
Now the question is, in relation to all of these things, how do we find
a way of getting the society to participate in the decision making on
the common heritage or the patrimony which belongs to all of us.
So we can go on in terms of why we need constitutional reform. The related
question is how do we get constitutional reform? Well, we need to make
a bridge between our diagnosis of why we need constitutional reform and
how we realize constitutional reform. In so far as we are arguing that
a major reason why we need constitutional reform is that our original
efforts at constitutional reform were not participatory and did not provide
opportunities for the people to actually be centrally involved, then our
most important conclusion is that the process by which we realise constitutional
reform is the central issue and that the process we need has to be participatory
in nature.
Secretariat, Yes, Commission, No
Our proposal, therefore, is that rather than set up a constitutional reform
commission made up, as we’ve done in the past, of ‘wise’
men and women who will listen to the great unwashed and make sense of
their mutterings, we think that all of us are wise and that, therefore,
the entire society should form the constitutional reform commission. That,
however, poses a particular problem because we know that of course, in
one sense, this is tending towards anarchy. So we have to find some way
of bridging the spirit of a participatory process with the need for some
kind of organising system.
So what we have proposed is a Secretariat, which will facilitate a national
debate on constitutional reform. The Secretariat would facilitate the
debate, providing adequate opportunities for the ventilation on what are
the key issues, what are the alternative proposals in terms of addressing
these key issues and, finally, for the people voting via referendum or
referenda. We are not really decided on that – that is one of the
issues that we want to throw out for discussion. We can have one referendum
or several referenda on different issues along the way.
In terms of our own discussions I would suggest that we have had three
equally weighted perspectives in terms of constitutional reform. One suggestion
is that we don’t need constitutional reform: that the problem is
that we haven’t implemented the constitution; that we don’t
in fact follow it. And that’s a view; we respect it and we say,
okay, what follows from that? There is another view, which is the diametrical
opposite which argues that the entire constitution should be simply torn
up root and branch, and that we need to start over from scratch and create
a new constitution. Absolutely just throw this way. And there’s
a third position, as usual somewhere between the two, which says the existing
constitution is inadequate and therefore we need to have reform.
These are three perspectives and we are saying that each of these perspectives
deserves to be ventilated and shared with the entire population. So the
population can then decide. Those who are saying that we need to take
it out root and branch need to have the opportunity to persuade the population
to that view. Those who are saying the problem is not the constitution,
but our implementation, need to have adequate opportunities as well as
those who are proposing reform. Now, to do that requires resources which
the CRF appreciates, having been operating on a wing and a prayer! Therefore,
we are proposing that the government, as well as civil society, put their
money where their mouths are and fund and finance the Secretariat which
will, over a period of some eighteen to twenty-four months, facilitate
a national debate and a national dialogue on what, in fact, are the options
for constitutional reform, beginning with these very fundamental questions
on the existing constitution – is it adequate? Throw it away? Some
mixture of both?
The Process
In addition to which, of course, the CRF also has been grappling with
what should be the nature of the new constitution? We have attempted to
take a ‘random walk’ through the constitution and identify
what we think are about three or four key steps which, in effect, determine
what happens at the end of the day. Let’s take a concrete example.
Mr Manning announces that we’re going to get an aluminium smelter.
That’s a decision of the executive branch of the government, which
implements. Ideally, theoretically, that decision should be informed by
the Parliament, which is the representative arm and which should be making
policy before that.
But there’s a step before that which is, how do you elect people
to Parliament in the first place? And then there is a step before that
which is how the people who contend for political power find the resources
to actually reach the people. If you wish, a contestation for political
power is no different from that of businesses attempting to get market
share for toothpaste. So there are people who are trying to sell you toothpaste
and one tells you this brand is better than that brand and so on. The
person who maybe does not have the best product, but who has the most
resources in order to reach you on television, on radio, on the street,
in your communities, is probably likely to get advantage over the person
selling toothpaste that might be the best toothpaste but who simply does
not have the resources, as it were.
Party Financing
So where do you get resources from? You get resources in terms of somebody
who provides you with the money to run your political party in between
elections, but particularly in terms of election campaigns. My memory
of the last election campaign is that it cost about 100 million TT dollars,
I think. I remember hearing that figure. I’m not too sure how accurate
it is. But let’s presume it’s correct for the moment. A hundred
million is a lot of money. So our view is that your decision on an aluminium
smelter, or your decision to invest in proper health care for those who
suffer from cancer, or not to invest in it, starts with the funding of
political parties. And, therefore, our view is the funding of political
parties now needs to be made transparent. And therefore our first step,
and the step on which we think you need constitutional reform, is in terms
of party finance regulations. Parties need to publicly indicate where
they get money from. Some of us go even further and say that there should
be limits in terms of the amount of money you can get from private investors
or that, if you get a lot of money from a private investor, that private
investor should be disallowed from being able to participate in government
contracts, or get any kind of government appointment which would facilitate
the award of contracts.
We have permutations and combinations inside of there and we need a debate
in the society, to bring this to the society’s attention, and reach
those who are saying ‘No! We don’t need party finance regulations.
We should continue with the existing system where parties are funded secretly’.
They will come and articulate that to the public. And others who are proposing
the need for party finance regulations would then come to the public,
and then – not the wise people on a Commission – but the public
would then vote in a referendum and say ‘We support those who say
keep the existing system or we support those who propose party finance
regulations.
Electoral Reform
The second stage is when you go to vote – the election day procedures.
We have seen that in Trinidad over the last two or three elections, there
have been question marks raised over the independence of the Elections
and Boundaries Commission. I’m not saying that these questions are
correct; I’m not casting any aspersions on the Elections and Boundaries
Commissioners, but we know, in reality, if there is a particular perception,
it can raise doubts about the validity of the system. So our proposal
is that we need to reform the Elections and Boundaries Commission with
two proposals being advanced. One, to follow the Jamaican example and
have the political parties represented in the EBC and I’d like to
use the analogy – only as analogy, don’t take it literally
– that the root of that system is you put a thief to watch a thief.
So that, if we are both on the Commission, it is not in my interest to
allow you to manipulate the election day procedure so that you could,
in effect, fraudulently win. And, of course, it is not in your interest
to allow me to do that. The other alternative, which we have proposed,
is a civil society oversight committee. You continue to have the Commission
as is but you have a civil society oversight committee, which tries to
serve as kind of independent watchdog.
First Past the Post or PR?
The third component once you have dealt with your party finance and with
your EBC reform is the electoral system. Should we vote for a constituency
representative or for a share of the votes cast in terms of a proportional
representation system or, for a mixed system, which combines both? Every
time we have come to that issue, it has become extremely heated because
it’s so fundamental. We have no consensus on that issue, but the
society needs to sit down where those who are saying we need to keep the
first-past-the-post system must engage with those who are saying that
we need to go to proportional representation since we are a plural society,
and with those who say we want the mixed system. And then the society
votes. But it can’t be in a heated argument, a set of people in
Woodford Square with a demagogue articulating his issues. People must
have opportunities for repartee, for discussions, debate. You must use
the television, the radio, the newspaper, smaller meetings, etc. So people
have the time to collect their ideas, ruminate and be sure in their minds,
before they cast their votes.
Macco Senate
Relatedly, should representation at the national level necessarily be
only on a political party basis? We do not think so. And these are the
CRF proposals - not merely CRF, but the CRF borrowing on some earlier
proposals of Lloyd Best and TAPIA. We say that we need a macco-senate
of civil society representatives; that is a senate made up of representatives
of civil society who share a long-term interest in the survival of the
society and who are not informed by the five-year electoral cycle. For
example, their remit is education and they are concerned about the education
of children in the society in fifty years’ time, or fifteen years’
time, or ten years’ time. They are not concerned with how many votes
you can get to win the election now.
In my view that maco-senate should perhaps initially have only limited
powers since I have some sympathy for the point that those who contest
directly for power ought to have primacy in decision-making. But you can
still have Senate with simply the power to monitor and to call in people.
Call in Mr Manning and indicate “You say that you’re going
to have an aluminium smelter, you say you want to have a gas pipeline.
Tell me, what is the economic analysis of these two projects in terms
of your alternative uses for this natural gas? When this natural gas is
finished in how many years, how is society going to provide itself with
energy? What are you going to do with the money that you get in this period
of time? Answer all these questions for me. You, the Prime Minister, can
still make your decisions, but you need to answer to someone.”
Relatedly, should you elect a prime minister directly or should you have
the person come from Parliament? Local government is another form of representation
where we have proposed that local government elections be conducted on
a non-party basis. So we have some very specific proposals but we don’t
think that these specific proposals are the most important issue and the
society could come to a different understanding if it wishes. But the
point we want to make is that the process is the most significant thing
and, therefore, the proposal for the Secretariat is what we are advancing.
