A most unfortunate document – Part II
Posted by clubsodaandsalt on October 6, 2006
Previously, we discussed the implications of the “Bill of Rights”-like section in the draft constitution. Now, let’s have a look at the workings of the would-be new government.
Before I delve into the text, though, I’d just like to clear something up. I’ve read bits of commentary lamenting the continuing Americanization of Trinidad that this draft represents. I’ll never understand why Trinidadians get upset about adopting some parts of American society – the constitution here is over 200 years old and has stayed largely intact, which strikes me as a good thing. More to the point — this constitution is nothing like the American constitution. As we’ll see later, the key difference is that the American document places a major emphasis on the separation of powers. We can have a debate on the merits of the presidential system vs. the parliamentary system if you’d like, but recognize that that is a separate debate from the one over the draft constitution. In fact, I’m pretty upset because this terrible draft is going to give presidentialism a bad name amongst people who don’t understand what presidentialism really is.
Let’s have a look at the details on the new President. Section 41 reads…
41.(1) There shall be a President of the Republic of Trinidad and Tobago who shall be the Head of State and Commander-in-Chief of the armed forces.
(2) The President shall be elected in accordance with this Chapter.
(3) The executive authority of Trinidad and Tobago shall be vested in the President and, subject to this Constitution, may be exercised by him directly or through officers subordinate to him.
OK, so far, so good. This is much like the American President. But what qualifies someone to be President? Let’s have a look at Section 42:
42.(1) A person is qualified to be nominated for election as President if he has been elected at a general election to serve as a member of the House of Representatives.
Hmm. This is not a good sign. The biggest advantage of the American system is the separation of the legislative and executive branches. This separation allows the Legislature to act as a check on the President and his activities, and while it occasionally breaks down (for example, right now), it generally keeps any one group from having unchecked power. The parliamentary system, on the other hand, grants maximum power to one group. I’d think that the whole point of this exercise was to cut down on that, but given that we’re picking the Executive FROM the Legislature, I’m getting worried. But let’s find out how the President is elected. On to Section 48:
48.(1) When the House of Representatives first meets after any general election and has elected the Speaker of the House and the Deputy Speaker of the House but before it proceeds to the despatch of any other business, it shall elect the President and the Vice-President.
NO! BAD CONSTITUTION! STOP THAT!
And this is where the Everything America Does Is Wrong And Also America Is Scary crowd really needs to cut it out, because the process above bears NO relation to the American system, and, in fact, gets rid of the best thing about presidentialism (as covered above). Having the House (and just the House, not even the Senate) elect the President means that the President will always be from the same party that controls the Legislature. When you combine this with Section 42, it’s clear that the intention is also to have the President come directly out of the House, so you don’t even get the chance of having outsiders like Max Richards or Noor Hassanali being elected. This makes no sense, at least not if you want to fix your parliamentary system. On top of that, this is worse than the status quo. Currently, the President is traditionally an independent figure who splits executive power with the Prime Minister. Under this draft, however, the two roles are combined, further concentrating power. One person will control the military, police, courts, Cabinet and Parliament (and note that the President can dissolve Parliament at will [Section 97]). I fail to see how this is a good thing. Also, check out this nugget from Section 57:
57.(1) The President shall not be answerable to any court for the performance of the functions of his office or for any act done by him in the performance of those functions.
YIKES. If it weren’t already crystal clear that this draft is a shameless power grab by PM Collateral Damage, this seals it for me.
There are things about this draft that are worth keeping. I like the rights and freedoms (though I’d like them without the qualifications mentioned in Part I). I also like the new Senate, which draws members from the local government councils (local government might actually become relevant!) and gets rid of the built-in majority for one party. That’s about it, though. In general, this draft is frightening, but it’s also an embarrassment to Sir Ellis, who seems like a smart guy (the existing constitution, which he also wrote, is pretty bad too, so I guess I shouldn’t be too surprised). It does nothing, NOTHING, to address the defects of the old constitution. It doesn’t decentralize power. It doesn’t even deal with the proximate cause of this whole affair, which was the tied election in 2001. The executive branch is elected by Parliament, so tied Parliament = no Executive.
The good news is that there’s pretty much no chance of the PNM getting the Opposition to vote for this. The bad news is that given the current chaos within the Opposition, there’s a possibility that they won’t need their votes after the next election. That’s why I hope that the media will begin paying more attention to this disaster, and start explaining the consequences of its passage to the public. I encourage people with any influence in Trindad media to start that ball rolling. Also, as I said before, it would be great to start seeing discussion of this online. New constitutions don’t happen every day, people. Let’s not repeat the mistakes of 1976.