RAD­HI­CA DE SIL­VA

Se­nior Mul­ti­me­dia Re­porter

rad­hi­ca.sookraj@guardian.co.tt

Vi­sion­ary and icon­ic leader Bas­deo Pan­day was a strong ad­vo­cate of con­sti­tu­tion­al re­form, call­ing for a sep­a­ra­tion of pow­ers, a uni­cam­er­al Par­lia­men­tary sys­tem, an ex­ec­u­tive pres­i­dent and pow­er shar­ing in gov­er­nance.

Un­for­tu­nate­ly, his dream nev­er ma­te­ri­alised even though he en­joyed a stint as prime min­is­ter of Trinidad and To­ba­go.

His pur­suit of con­sti­tu­tion­al re­form faced nu­mer­ous chal­lenges, rang­ing from so­cial up­ris­ing to po­lit­i­cal op­po­si­tion and con­sti­tu­tion­al com­plex­i­ties. De­spite the set­backs, Pan­day’s vi­sion re­mains rel­e­vant to­day even af­ter his death ear­li­er this month, prompt­ing calls for a re­newed com­mit­ment to con­sti­tu­tion­al re­form.

Prime Min­is­ter Dr Kei­th Row­ley seem­ing­ly ini­ti­at­ed yet an­oth­er at­tempt at the process last week, when he named a com­mit­tee to start talks with the pub­lic on con­sti­tu­tion­al re­form.

Ex­plor­ing Pan­day’s quest for con­sti­tu­tion­al re­form and why it failed, some of Pan­day’s col­leagues, pro­teges and po­lit­i­cal gu­rus, in­clud­ing for­mer at­tor­ney gen­er­al Ramesh Lawrence Ma­haraj SC, at­tor­ney Prakash Ramd­har, Dr Hamid Ghany and Dr Bish­nu Ra­goonath, ex­plained ex­clu­sive­ly to Guardian Me­dia about why it was so dif­fi­cult to over­haul the Con­sti­tu­tion and make the changes that Pan­day en­vi­sioned for T&T.

Con­sti­tu­tion re­form un­der the UNC

Speak­ing from Lon­don, for­mer AG Lawrence Ma­haraj re­vealed that when Pan­day be­came prime min­is­ter in 1995, crime was at an all-time high and rather than fo­cus on chang­ing the Con­sti­tu­tion, the gov­ern­ment de­cid­ed to fight the crim­i­nals.

“At that time, the prob­lems of the se­ri­ous crime sit­u­a­tion had to be dealt with. The law re­form pro­gramme was ur­gent­ly di­rect­ed to put the le­gal in­fra­struc­ture to fight crime. That re­quired putting laws in place to fight the drug trade. That ex­plained the mea­sures put in place such as leg­is­la­tion to deal with dan­ger­ous drugs, mon­ey laun­der­ing and con­fis­ca­tion of prof­its and pro­ceeds of crime,” Ma­haraj re­called.

He said new ex­tra­di­tion treaties and laws were passed.

“The Shiprid­er Agree­ment and a new in­ves­tiga­tive body es­tab­lished the Counter Drug Traf­fick­ing Unit to in­ves­ti­gate and pros­e­cute drug traf­fick­ing and to con­fis­cate the prof­its of crime, which showed suc­cess­ful re­sults. Per­sons were con­vict­ed and the pro­ceeds of crime of con­vict­ed per­sons were con­fis­cat­ed by the state,” Ma­haraj said.

Crime boss Dole Chadee’s es­tate was tak­en by the State and used to house a drug re­ha­bil­i­ta­tion cen­tre.

“The USA At­tor­ney Gen­er­al Janet Reno came to Trinidad to wit­ness that takeover in a cer­e­mo­ny. The USA For­eign Sec­re­tary al­so came to Trinidad for the sign­ing cer­e­mo­ny of the new ex­tra­di­tion treaty with the USA and the Shiprid­er Agree­ment. The new leg­isla­tive mea­sures with the con­se­quent ad­min­is­tra­tive mea­sures and ac­tion re­sult­ed in a dras­tic re­duc­tion of crime, which made the coun­try safe,” Ma­haraj said.

How­ev­er, con­sti­tu­tion­al re­form re­mained on Pan­day’s mind and Ma­haraj said a de­ci­sion was tak­en to tack­le this in the UNC’s sec­ond term in of­fice.

“Joint Se­lect Com­mit­tees of Par­lia­ment were giv­en pow­er by new laws to make all gov­ern­ment bod­ies and min­istries ac­count­able to Par­lia­ment and the peo­ple by hav­ing hear­ings, as oc­cur in the USA Con­gress and British Par­lia­ment. These and oth­er mea­sures were put in place in the first term of the UNC gov­ern­ment,” Ma­haraj said.

He added, “The first term of gov­ern­ment al­so had to deal with man­ag­ing the econ­o­my be­cause of the low price of oil. It was hoped in the sec­ond term to deal with con­sti­tu­tion­al re­form.”

How­ev­er, Ma­haraj said the is­sue of the gov­ern­ment’s in­ves­ti­ga­tion of al­leged cor­rup­tion arose and he was sub­se­quent­ly fired by Pan­day.

“The gov­ern­ment dis­solved Par­lia­ment and called elec­tions. There was a tie and Pres­i­dent Arthur NR Robin­son chose a new gov­ern­ment with Patrick Man­ning, Pan­day’s friend and po­lit­i­cal foe, be­com­ing prime min­is­ter.”

Ma­haraj said in the elec­tions of 2010, the Peo­ple’s Part­ner­ship promised con­sti­tu­tion­al re­form, in­clud­ing pro­por­tion­al rep­re­sen­ta­tion.

“This was in its man­i­festo. The Part­ner­ship gov­ern­ment ap­point­ed a com­mit­tee on con­sti­tu­tion­al re­form which rec­om­mend­ed pro­por­tion­al rep­re­sen­ta­tion and promised to en­act laws to im­ple­ment it,” Ma­haraj re­called.

PP didn’t pur­sue full re­form

An ex­pe­ri­enced lawyer and pas­sion­ate ad­vo­cate for jus­tice, for­mer min­is­ter of Le­gal Af­fairs Prakash Ra­mad­har led the Peo­ple’s Part­ner­ship (PP) Task Force for Con­sti­tu­tion­al Re­form.

Speak­ing ex­clu­sive­ly to Guardian Me­dia, Ra­mad­har said as chair­man of the con­sti­tu­tion­al com­mit­tee, he host­ed con­sul­ta­tions through­out the length and breadth of T&T. He al­so in­vit­ed sub­mis­sions for con­sti­tu­tion­al re­form from Pan­day, which was re­ceived in 2013.

“We ob­tained feed­back from the pub­lic. Our view was that we need­ed to bring con­sti­tu­tion­al re­form in pack­ages. We want­ed the coun­try to un­der­stand every as­pect of re­form that we pro­posed,” Ra­mad­har re­vealed.

With the as­sis­tance of his team, Ra­mad­har for­mu­lat­ed a draft leg­is­la­tion and took it to the Par­lia­ment for de­bate to be made law.

“How­ev­er, there were ill-formed peo­ple who did not un­der­stand the is­sue of run-off. What that en­tailed is if in any elec­tion, a can­di­date achieved more than 50 per cent re­quired, there would be a run-off elec­tion so they could ac­com­mo­date small­er par­ties and work to­geth­er. We felt that this would en­hance democ­ra­cy. How­ev­er, oth­ers took the view which up to now I can’t un­der­stand and they op­posed it,” Ra­mad­har said.

He not­ed that then prime min­is­ter Kam­la Per­sad-Bisses­sar in­vit­ed every mem­ber of par­lia­ment on her side to vote ac­cord­ing to their con­science.

“Some vot­ed against the leg­is­la­tion, as a re­sult of which we could not bring con­sti­tu­tion­al re­form,” Ra­mad­har ex­plained.

He ad­mit­ted, how­ev­er, that the PP nev­er pur­sued Pan­day’s sug­ges­tion to have an ex­ec­u­tive pres­i­dent and a uni­cam­er­al par­lia­men­tary sys­tem.

“That re­quired a com­plete over­haul of the Con­sti­tu­tion. It would have re­quired more than the con­sul­ta­tions we had done,” Ra­mad­har re­vealed.

He said a ref­er­en­dum was al­so re­quired, as such changes would sig­nif­i­cant­ly im­pact the way pow­er was dis­pensed in the coun­try.

“So that was not part of our am­bi­tion then. Notwith­stand­ing all the con­sul­ta­tions we had, this rep­re­sent­ed just a small per­cent­age of the pop­u­la­tion’s views. Mr Pan­day’s sug­ges­tions need­ed a ref­er­en­dum and we did not have that with our con­sul­ta­tions,” Ra­mad­har said.

How­ev­er, he not­ed that the tech­no­log­i­cal ad­vance­ments avail­able now would make a ref­er­en­dum eas­i­er. Ra­mad­har called for a re­vis­i­ta­tion of Pan­day’s sug­ges­tion on con­sti­tu­tion­al re­form, say­ing there was an ur­gent need for in­de­pen­dence and a sep­a­ra­tion of pow­ers as it re­lates to the Ex­ec­u­tive, Leg­is­la­ture and Ju­di­cia­ry.

He said the pop­u­la­tion was not ready then for the sweep­ing changes that Pan­day en­vi­sioned.

How­ev­er, he said in ret­ro­spect, Pan­day’s rec­om­men­da­tions were need­ed.

“More and more we are see­ing the fail­ure of the State in terms of how things are done. When in­sti­tu­tions are seen as par­ti­san and not in­de­pen­dent as they should be, that is a dan­ger­ous thing be­cause there is no trans­paren­cy and ac­count­abil­i­ty,” Ra­mad­har said.

He not­ed: “Mov­ing for­ward, there is a need to en­hance in­sti­tu­tions so they re­main in­de­pen­dent and there is re­spect and trust in the pop­u­la­tion. There is a need for Con­sti­tu­tion­al Re­form.”

He said with 29 seats, the Part­ner­ship did not have the re­quired ma­jor­i­ty to over­haul the Con­sti­tu­tion and pass leg­is­la­tion re­quired. He said the Na­tion­al Al­liance for Re­con­struc­tion (NAR) was the on­ly par­ty which had the re­quired ma­jor­i­ty, but even though Pan­day was part of the NAR coali­tion, un­for­tu­nate­ly, his dreams nev­er ma­te­ri­alised.

1990 coup at­tempt de­railed NAR ef­forts

De­spite hav­ing a clear ma­jor­i­ty to over­haul the Con­sti­tu­tion, the NAR al­so failed to make the changes that Pan­day want­ed.

Po­lit­i­cal an­a­lyst Dr Hamid Ghany said a year af­ter the NAR won the gov­ern­ment, cap­tur­ing 33 seats and leav­ing the Peo­ple’s Na­tion­al Move­ment (PNM) with three seats, the gov­ern­ment led by ANR Robin­son pur­sued con­sti­tu­tion­al re­form.

The Con­sti­tu­tion Com­mis­sion was ap­point­ed in June 1987 to hold an in­quiry in pub­lic, “to con­sid­er the Con­sti­tu­tion of the Re­pub­lic of T&T and to make rec­om­men­da­tions for the re­vi­sion there­of.”

The Com­mis­sion was chaired by Sir Isaac Hy­atali.

Dr Ghany said the Hy­atali Con­sti­tu­tion Com­mis­sion pre­sent­ed its re­port to Pres­i­dent Has­sanali on Ju­ly 1, 1990.

“Twen­ty-six days lat­er, there was an at­tempt­ed coup which de­railed the ef­fort ahead of the 1991 elec­tion year,” Dr Ghany re­called.

He said Pan­day be­came leader of the Op­po­si­tion in Au­gust 1990 and in 1995, the UNC won the elec­tions.

Pan­day had hoped to have some re­form by con­tin­u­ing to lob­by for con­sti­tu­tion­al re­form long af­ter he left gov­ern­ment.

Ghany said un­der the Peo­ple’s Part­ner­ship, the Con­sti­tu­tion Re­form Bill, which in­clud­ed term lim­its for the prime min­is­ter, the right to re­call MPs, and the in­tro­duc­tion of a runoff sys­tem for par­lia­men­tary elec­tions, was tak­en to Par­lia­ment.

“That bill was passed in the House of Rep­re­sen­ta­tives in Au­gust 2014, was amend­ed in the Sen­ate and passed in Sep­tem­ber 2014 but the Sen­ate amend­ments were nev­er put for­ward for rat­i­fi­ca­tion in the HOR be­tween Sep­tem­ber 2014 and the time that Par­lia­ment was dis­solved in June 2015,” Dr Ghany said.

He not­ed that in 2013, the PP gov­ern­ment in­tro­duced pro­por­tion­al rep­re­sen­ta­tion in lo­cal gov­ern­ment for the elec­tion of al­der­men by abol­ish­ing the process of nom­i­nat­ing al­der­men that ex­ist­ed be­fore 2013.

No par­ty wants to risk de­feat

Po­lit­i­cal an­a­lyst Dr Bish­nu Ra­goonath said Con­sti­tu­tion re­form has been elu­sive be­cause “no par­ty wants to risk de­feat.”

“The prob­lem you have is that our Con­sti­tu­tion dic­tat­ed that while you can change some as­pects with a three fifths ma­jor­i­ty, in oth­er things you need a three fourths ma­jor­i­ty,” Dr Ra­goonath said.

He not­ed: “On­ly twice did a gov­ern­ment in this coun­try win with more than a three fourths ma­jor­i­ty and that was in 1971, af­ter which we had the Re­pub­li­can Con­sti­tu­tion and in 1986 when the NAR won 33 out of 36 seats.”

Ra­goonath said with their ma­jor­i­ty, the NAR set off to bring about con­sti­tu­tion­al re­form.

“All of that went to ze­ro, notwith­stand­ing rec­om­men­da­tions from the Hy­atali Com­mis­sion,” Dr Ra­goonath said.

He not­ed that in 1987, the NAR broke up and al­though the par­ty re­mained in gov­ern­ment, they no longer con­trolled the three fourths ma­jor­i­ty.

“No gov­ern­ment will take a re­form bill to Par­lia­ment where they can­not guar­an­tee the Op­po­si­tion sup­port. Be re­mind­ed that the Peo­ple’s Part­ner­ship did some amend­ments, where they could with a three fifth ma­jor­i­ty, but kept away from is­sues that need­ed a three fourth ma­jor­i­ty,” Dr Ra­goonath said.

Pan­day’s dream for con­sti­tu­tion­al re­form

* Uni­cam­er­al Par­lia­ment - Mem­bers would be elect­ed by the process of pro­por­tion­al rep­re­sen­ta­tion.

* An Ex­ec­u­tive Pres­i­dent - Elec­tions for an Ex­ec­u­tive Pres­i­dent will choose not on­ly the Ex­ec­u­tive Pres­i­dent but al­so the Prime Min­is­ter.

* Pow­er Shar­ing - The Pres­i­dent will come from the par­ty that wins and the par­ty that fin­ish­es sec­ond (the oth­er par­ty) will choose the Prime Min­is­ter.

* In­clu­sion of mi­nor­i­ty groups in gov­ern­ment - The par­lia­men­tary struc­ture will have to change, in that the Pres­i­dent, with him/her be­ing an Ex­ec­u­tive Pres­i­dent, will have to put for­ward their pro­gramme be­fore a Par­lia­ment, which is presided over by some­body from the oth­er par­ty.

* Sep­a­ra­tion of Pow­ers - In­sti­tu­tions of the State must act as bul­warks for the free­dom and rights of every­one and each arm of the Gov­ern­ment (Ex­ec­u­tive, Leg­isla­tive, Ju­di­cial) must have sep­a­rate pow­ers.