?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