?The ex­ist­ing Con­sti­tu­tion of Trinidad and To­ba­go was en­act­ed in 1976. It re­placed the In­de­pen­dence Con­sti­tu­tion of 1962. The con­sti­tu­tion­al frame­work of the 1976 Con­sti­tu­tion was sim­i­lar to the one of 1962. Ma­jor changes were con­se­quen­tial, fol­low­ing the at­tain­ment of re­pub­lic sta­tus from the sta­tus of in­de­pen­dence. The Queen, as head of state with a Gov­er­nor-Gen­er­al, was re­placed by the of­fice of pres­i­dent. The Re­pub­li­can Con­sti­tu­tion did not in­ter­fere with the in­de­pen­dence of the ju­di­cia­ry and the doc­trine of the sep­a­ra­tion of pow­ers, which were ba­sic fea­tures of the In­de­pen­dence Con­sti­tu­tion. All con­sti­tu­tions com­mit­ted to de­mo­c­ra­t­ic prin­ci­ples make the doc­trine of the sep­a­ra­tion of pow­ers and the in­de­pen­dence of the ju­di­cia­ry es­sen­tial.

The con­sti­tu­tion of a coun­try is re­gard­ed as a sacro­sanct doc­u­ment, flex­i­ble and dy­nam­ic, to meet the changes of times through ju­di­cial in­ter­pre­ta­tions and leg­isla­tive amend­ments. The Con­sti­tu­tion of the Unit­ed States of Amer­i­ca, which has been in ef­fect since 1789, has not been re­placed; it has been amend­ed from time to time to meet the changes in so­ci­ety. The same can be said of the In­dia's Con­sti­tu­tion, which it got at in­de­pen­dence. It has not been re­placed, but it has been amend­ed. This is the po­si­tion of most coun­tries which have re­tained a de­mo­c­ra­t­ic form of gov­ern­ment. Coun­tries which change the con­sti­tu­tion­al frame­work of gov­er­nance from a de­mo­c­ra­t­ic mod­el to a one-par­ty state, or in which there is the con­cen­tra­tion and al­lo­ca­tion of state pow­er in an in­di­vid­ual or a group of in­di­vid­u­als, have had to re­place their con­sti­tu­tions.

Both the ex­ist­ing Con­sti­tu­tion and the In­de­pen­dence Con­sti­tu­tion of Trinidad and To­ba­go have con­sti­tu­tion­al frame­works of de­mo­c­ra­t­ic gov­ern­ment, based on the fun­da­men­tal prin­ci­ples of the Magna Car­ta (1215), the Pe­ti­tion of Rights of 1628, the Bill of Rights (1689), the Fed­er­al­ist Pa­pers of the USA, the writ­ings of Dicey, Mon­tesquieu, Madi­son and oth­ers. These ba­sic prin­ci­ples were that gov­ern­men­tal af­fairs must be con­duct­ed in ac­cor­dance with the con­sent of the peo­ple, and there are no le­gal lim­its to the pow­er of the peo­ple. There must be lim­it­ed gov­ern­ment, ie, gov­ern­ment of­fi­cials pos­sess on­ly such pow­ers as have been con­ferred on them by the elec­torate. A fur­ther safe­guard against tyran­ni­cal rule re­quired the con­sti­tu­tion to set up three in­sti­tu­tion­al­ly-dis­tinct, equal or­gans of cen­tral gov­ern­ment, the leg­isla­tive, ex­ec­u­tive and ju­di­cial.

These three or­gans are to be tied to­geth­er in a dy­nam­ic re­la­tion­ship of co-op­er­a­tion by a sys­tem of checks and bal­ances that, in var­i­ous ways, pro­vid­ed for each of the three branch­es of gov­ern­ment to have some check on the oth­er two. Thus, the doc­trine of the sep­a­ra­tion of pow­ers has al­ways been im­por­tant in po­lit­i­cal the­o­ry and evo­lu­tion of con­sti­tu­tion­al­ism in con­sti­tu­tions of coun­tries. In prin­ci­ple, it means that the pow­ers of gov­ern­ment are di­vid­ed among the leg­isla­tive, ex­ec­u­tive and ju­di­cial branch­es, and that the pow­ers of a par­tic­u­lar branch can be ex­er­cised on­ly by an of­fi­cer of that branch. The prin­ci­ple un­der­ly­ing the need for this doc­trine and the need for the checks and bal­ances against abuse of pub­lic pow­er were that po­lit­i­cal ex­pe­ri­ence and knowl­edge re­vealed that the peo­ple could not place un­qual­i­fied trust in gov­ern­ment of­fi­cials. The doc­trine of the sep­a­ra­tion of pow­ers recog­nis­es that there is some over­lap­ping of func­tions among the branch­es of gov­ern­ment, and there­fore an ab­solute sep­a­ra­tion was not pos­si­ble or de­sir­able.

An ex­am­ple of this is the gov­ern­ment un­der our sys­tem con­trols the ma­jor­i­ty of seats in the House of Rep­re­sen­ta­tives. It, there­fore, has the ma­jor­i­ty in the leg­isla­tive arm for it to en­act laws it re­quires as part of its pol­i­cy. The im­por­tance of this prin­ci­ple of the sep­a­ra­tion of pow­ers to have a free con­sti­tu­tion is apt­ly de­scribed by James Madi­son, in the Fed­er­al­ist No 47 quot­ing Mon­tesquieu: "There can be no lib­er­ty where the leg­isla­tive and ex­ec­u­tive pow­ers are unit­ed in the same per­son, or body of mag­is­trates, or if pow­er of judg­ing be not sep­a­rat­ed from the leg­isla­tive and ex­ec­u­tive pow­ers... "His (Mon­tesquieu's) mean­ing, as his own words im­port, and still more con­clu­sive­ly as il­lus­trat­ed by the ex­am­ple in his eye, can amount to no more than this, that where the whole pow­er of one de­part­ment is ex­er­cised by the same hand which pos­sess­es the whole pow­er of an­oth­er de­part­ment, the fun­da­men­tal prin­ci­ples of a free con­sti­tu­tion are sub­vert­ed."

The ques­tions which those who pro­pose to re­peal the ex­ist­ing con­sti­tu­tion and re­place it with a new one must an­swer are:

1. Why do we need to re­peal the en­tire 1976 con­sti­tu­tion to re­place it with a new one?

2. Why do we need, in the pro­posed new con­sti­tu­tion, to al­lo­cate full state pow­er to the ex­ec­u­tive pres­i­dent?

3. Why do we need to change the con­sti­tu­tion­al frame­work of the ex­ist­ing con­sti­tu­tion for the gov­ern­ment to con­trol the ad­min­is­tra­tive func­tions of the ju­di­cia­ry, there­by vi­o­lat­ing the doc­trine of the sep­a­ra­tion of pow­ers?

4. Why do we need to give to the ex­ec­u­tive pres­i­dent con­trol of the Po­lice Ser­vice, Pub­lic Ser­vice, Teach­ing Ser­vice, the Elec­tions and Bound­aries Com­mis­sion, the In­tegri­ty Com­mis­sion and all oth­er in­de­pen­dent com­mis­sions?

5. Why do we need to give to the ex­ec­u­tive pres­i­dent in­di­rect con­trol of the Of­fice of Di­rec­tor of Pub­lic Pros­e­cu­tions?

6. Why is the pro­posed new con­sti­tu­tion de­vot­ed en­tire­ly to giv­ing more pow­er to the gov­ern­ment and to the prime min­is­ter as ex­ec­u­tive pres­i­dent; and why does it not con­tain a sin­gle clause which gives any ad­di­tion­al pow­er or right to the peo­ple?

James Madi­son and Mon­tesquieu, these great con­sti­tu­tion­al thinkers and writ­ers, were cor­rect. If the pow­er of all de­part­ments of gov­ern­ment (ju­di­cia­ry, leg­isla­tive and ex­ec­u­tive) are ex­er­cised by the same hands, a free con­sti­tu­tion would be sub­vert­ed. The draft con­sti­tu­tion places un­qual­i­fied po­lit­i­cal trust in the of­fice of ex­ec­u­tive pres­i­dent. This, ac­cord­ing to con­sti­tu­tion­al ex­perts, must not be giv­en, as his­to­ry shows when such un­qual­i­fied po­lit­i­cal trust is giv­en it is abused. The fa­mous Judge said: "Pow­er cor­rupts and ab­solute pow­er cor­rupts ab­solute­ly."

Ramesh Lawrence Ma­haraj, SC

At­tor­ney-at-Law

Pres­i­dent of the Trinidad and To­ba­go Civ­il Rights As­so­ci­a­tion

e-mail: tnt­civil­rights@gmail.com