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CONSTITUTION COMMISSION OF TRINIDAD AND TOBAGO
REPORT
OF THE
CONSTITUTION
COMMISSION
Presented to His Excellency the Governor-General
on
January 22, 1974
Printed by T & P & P Ltd.
CONSTITUTION COMMISSION OF TRINIDAD AND TOBAGO
REPORT
OF THE
CONSTITUTION
COMMISSION
Presented to His Excellency the Governor-General
on January 22, 1974
CONTENTS
Page
LETTER OF TRANSMITTAL .
I INTRODUCTION .4
II THE GENERAL STRUCTURE AND ITS UNDERLYING PRINCIPLES 14
III FUNDAMENTAL RIGHTS AND FREEDOMS 18
IV CITIZENSHIP 28
V TIE HEAD OF STATE .
VI PARLIAMENT .40
VII THE EXECUTIVE 69
VIII LOCAL GOVERNMENT .79
IX THE JUDICIARY 84
X OMBUDSMAN 9
XI SERVICE COMMISSIONS 9
XII FINANCE 100
XIII AMENDING THE CONSTITUTION 107
XIV TRANSITIONAL PROVISIONS 110
XV SUMMARY OF RECOMMENDATIONS 112
XVI ACKNOWLEDGMENTS 15
RESERVATIONS
RESERVATIONS BY REGINALD DUMAS, ESQUIRE 12
RESERVATIONS BY SOLOMON LUTCHMAN, ESQUIRE 143
RESERVATIONS BY J. HAMILTON MAURICE, ESQUIRE 153
RESERVATIONS BY DR. SELWYN RYAN 15
APPENDICES
A. LIST OF GROUPS INVITED TO PRIVATE MEETINGS TO DISCUSS
THE PROCEDURES TO BE ADOPTED BY THE COMMISSION 162
B. DATES AND VENUES OF PUBLIC MEETINGS 163
C. LIST OF INDIVIDUALS AND ORGANIZATIONS FROM WHOM
MEMORANDA WERE RECEIVED 164
D. ORGANIZATIONS AND INDIVIDUALS IN ATTENDANCE AT THE
NATIONAL CONVENTION AT CHAGUARAMAS 167
E. METHOD TO BE USED IN WORKING OUT PROPORTIONALITY OF
LIST SEATS UNDER THE PROPOSED SYSTEM OF PROPORTIONAL
REPRESENTATION 169
His Excellency Sir Ellis Emmanuel Innocent Clarke, T.C., G.C.M.G.,
Governor-General and Commander-in-Chief of Trinidad and Tobago
Sir :
In the Speech from the Throne at the opening on June 18, 1971 of the Third
Parliament since Independence of Trinidad and Tobago, your predecessor in office,
His Excellency Sir Solomon Hochoy, T.C., G.C.M.G., G.C.V.O., O.B.E., stated
that the Government would be concentrating on encouraging and promoting the
maximum participation of the people in the political process. The first priority
would be the Constitution itself. Against this background he announced the
decision to appoint a Commission under section 2 of the Commissions of Enquiry
Ordinance with the following terms of reference, that is to say:
"To consider the Constitution of Trinidad and Tobago and matters related
thereto and to make recommendations for the revision of the said Constitu-
tion and for matters of constitution reform in Trinidad and Tobago".
2. The Commission was further directed to report in writing upon the said
enquiry giving its opinions and recommendations and providing for consideration
a draft Constitution for Trinidad and Tobago based upon such opinions and
recommendations.
3. The composition of the Commission then appointed was as follows:
The Rt. Hon. Sir Hugh Wooding, T.C. (Chairman)
The Hon. Mr. Justice Philip Telford Georges (Deputy Chairman)
Mitra Gokhale Sinanan, Esquire, Q.C.
Michael de la Bastide, Esquire
Gaston Benjamin, Esquire,
Julius Hamilton Maurice, Esquire
Solomon Lutchman, Esquire
Reginald Dumas, Esquire
Dr. Anthony P. Maingot;
and Cecil Haig Dolly, Esquire, a public officer, was appointed to be Secretary
to the Commission.
4. On September 15, 1971 a tenth member was added to the Commission,
namely Dr. Selwyn Ryan. On July 14, 1971 another public officer, Lennox
Wattley, Esquire, was appointed as Assistant Secretary.
5. In the said Speech from the Throne His Excellency further stated that the
Commission would operate in complete independence of the Government and
the Parliament except in so far as funds and staff would be required. The
Commission has so operated.
Procedure
6. Our original decision was to proceed in the conventional manner by
inviting the public to send us memoranda expressing their views on constitutional
reform. But the response led to a radical revision of our method of approach. It
was clear that before expressing their views most people wanted to have precise
information of the terms of the present Constitution and some awareness of
possible alternatives which might be considered. So we decided to ask groups
representing a wide cross-section of community interests to send delegates to
discuss with us the procedures we should adopt in setting about our vitally
important task. Lists of the groups whom we invited and of those who sent
delegates are set out in Appendix A.
7. There was a remarkable unanimity among the groups as to the most
desirable method of approach so that after our several discussions with them it
was easy for us to resolve-
i. to prepare and distribute a booklet setting out the terms of the present
Constitution and suggesting possible changes with some of the argu-
ments for and against each;
ii. to hold meetings throughout Trinidad and Tobago within a reasonable
period after the distribution of the booklet to meet the people, listen
to what they might have to say and discuss with them any difficulties
or problems arising from their reading of the booklet;
iii. to invite the public at that stage to send in their proposals for reform;
iv. to meet thereafter in private session with groups or individuals who
had sent in proposals in cases where we felt that such a meeting would
help in clarifying the proposals; and finally
v. to hold a national convention to which all persons who had sent in
proposals as well as the general public would be invited to debate the
shape which the new Constitution should take.
8. The preparation of the booklet proved a more difficult task than we had
anticipated. The emphasis was on simplicity and readability, yet accuracy and
breadth of coverage could not be sacrificed. It was completed after 29 meetings
in the period August 17 to December 31, 1971 and was launched at a press
conference on January 8, 1972 under the title "Thinking Things Through".
9. The booklet was very widely distributed through local government offices,
post offices, schools, work places and overseas missions. Altogether, the number
of copies distributed was approximately 80,000.
10. Unfortunately, it became impracticable to proceed to the next stage of
holding public meetings, as had been planned, shortly after the distribution of
the booklet. The country was then in a period of public emergency. We therefore
decided that the planned public meetings should not be held at a time when
citizens expressing their views could not feel assured of the full protection of
the fundamental rights and freedoms declared in and by a Constitution which,
at least to some extent, had been virtually suspended. Accordingly, the round of
meetings did not commence until July 5, 1972 after the period of public emergency
had been brought to an end. A list of the dates and venues of these meetings is
given at Appendix B.
11. The Commission divided into two groups to cover the country. Altogether
39 meetings were held at important centres throughout Trinidad and Tobago
during the period July 5 to August 23, 1972. Further in response to invitations
from nationals abroad, some of us travelled to Toronto, Montreal and Ottawa in
Canada, and to New York City in the United States of America to discuss with
the substantial number of our citizens there such issues as they wished to raise.
Also, nationals resident in Washington D.C. approached one of our members,
who was then an officer in our Embassy there, and passed on to us through him
their representations on matters which were of concern to them. Other nationals
too, resident in England, met with another of our members who was on a visit
there and submitted their representations through him to us.
12. We received 100 memoranda-68 from individuals and 32 from organi-
sations and groups. A list of those submitting memoranda is given in Appendix C.
13. In the period from October 1972 to February 1973 we held 24 meetings
to discuss in private session with various groups the contents of their memoranda.
Also, we prepared certain documentation for the National Convention. This
included Working Papers dealing with specific issues, namely fundamental rights
and freedoms, citizenship, the ombudsman, financial accountability and pro-
portional representation, and four model constitutions which attempted to set
out in simple form what appeared to be the more obvious combinations of
institutions that might be discussed.
14. We held a mini-convention in Scarborough, Tobago on March 10 and 11,
1973. Its purpose was to afford the people of Tobago an opportunity to debate
issues of special concern to them. Also, we felt that problems of transport, an
extended absence from Tobago and the cost of housing and subsistence in Trinidad
might make it difficult for any but a very few from Tobago to attend the National
Convention at Chaguaramas.
15. The National Convention was held at the Chaguaramas Convention Centre
between March 30 and May 9, 1973. In sum, there were 22 sessions and taking
part were the representatives of each of 47 organizations and groups as well as
28 individuals. A list of the participants is given in Appendix D.
16. To aid the Commission in its research the Government of India generously
offered that the Chairman should visit that country as its guest. The offer was
gratefully accepted, and two other members joined the Chairman in his researches
there. The Government of India made available every facility that could be
desired and the delegation was greatly assisted by its discussions with parliamen-
tary and elections officials and with the distinguished editor of "India's Consti-
tution In The Making" who was himself a prominent member of the Constituent
Assembly responsible for drafting the Indian Constitution.
17. Those of us who visited Ottawa used the occasion to have discussions
with senior parliamentary officials and academics who have made a study of the
Canadian Senate, all of which we found to be quite helpful.
18. In the main, however, we considered that the area of primary relevance
to our enquiry was and must be Trinidad and Tobago. Our major concern was
and had to be with the composition of its people, its political culture, the problems
arising from its existing constitutional arrangements, its customs and its character.
To these therefore we gave our principal attention.
19. Our Report follows.
I INTRODUCTION
20. As this Report is being written the survival of constitutional, parliamentary
politics is being challenged as never before in Trinidad and Tobago. Many believe
that the institutionalized channels of constitutional politics no longer respond
unless there is some dramatic gesture of confrontation such as a "sick out", a
"go slow", a boycott or a march to Whitehall to see the Prime Minister. Some
groups have even called on citizens to consider withholding the payment of taxes.
Secondary school children have begun to adopt strategies of confrontation and
non-negotiable demands. Others have carried this belief into even more extreme
action by resorting to armed confrontation. The society has painfully to adjust
itself to stories of shoot-outs and killings and wounding, of early morning
searches and of widespread public fear of victimisation by one side or the other.
21. There is danger that we may become insensitized by exposure to the
human tragedy in the situation and accept this state of affairs as part of our
political culture. Violence breeds violence. Violence or the fear of it invariably
tends to make the citizen more receptive to strong police and military procedures.
As the process of conflict escalates, traditional civilian, legal and constitutional
procedures are short-circuited in favour of more "efficient" methods of law and
order. Although all social change involves a measure of conflict, no democracy
can long survive in the midst of unrestrained political violence.
22. One indication that more and more people have become or are becoming
disenchanted with existing political processes is the fact that fewer of those
entitled to vote are registering. For the 1966 general election there were 459,839
registered voters, but for the 1971 general election the number fell to 435,531.
Fewer still have been exercising their franchise in either national or local elections.
But non-participation does not necessarily mean complete disenchantment with
constitutional politics, nor does it indicate endorsement of the revolutionary
approach. It may simply be a reflection of a dissatisfaction with the existing
political establishment, and confusion and uncertainty about what options for
meaningful change are open. We are convinced that a large majority of the people
still believe in the possibility and viability of constitutional politics and that they
would respond positively if new political alternatives became available. The
anxiety with which our report and recommendations have been awaited is perhaps
some evidence that a commitment to conventional politics still exists. It may well
be that the very crisis which the country has gone through in the last three or
four years has helped to create a new consciousness and an intense determination
on the part of many to make constitutional politics a living reality.
23. We are aware however that constitutionalism will not work in Trinidad
and Tobago unless a fundamental reorientation of the economic priorities of the
country is undertaken. Democratic politics will not thrive unless productive jobs
are found for those who are now unemployed and underemployed as well as those
who will be pouring out of our expanded school systems in the near future.
The Present Constitution analysed
24. The Constitution under which Trinidad and Tobago achieved indepen-
dence in 1962 was in all its essentials a written version of the constitutional
arrangements evolved in the United Kingdom over many centuries. There were
no indigenous systems of community government at the central level from which
a national pattern could be developed. The laws which had been imposed were
British; the system of education was British; the process of colonial tutelage
through which we had passed had been aimed at preparing us to manage British
institutions. The ultimate source of authority had been, till then, outside of the
country and the various groups within had perforce to look there for help or
protection if they felt that they were being unfairly treated. To a large extent
these attitudes persisted though the constitutional arrangements changed.
25. Although the present Constitution was discussed at Queen's Hall for
three days, there was never any examination of the basic issue as to whether or
not it was suited to our needs. Some of the delegates did perceive that it could
be operated so as to be quite authoritarian. Their criticisms were brushed aside.
The prevailing attitude was that the representatives elected by the people to
govern must be free to do so. Checks intended to delay the passing of laws dealing
with fundamental constitutional issues were understandable, but restraints on the
power of an elected government would be inherently undemocratic. The only
proper safeguard was the right of the electorate to pass judgment at periodic
elections.
26. The United Kingdom was generally regarded as a country in which the
rights and freedoms of the individual and the democratic way of life as under-
stood in the West were dearly cherished and effectively protected. There was a
tendency to think that this was due solely to their institutions of Government.
This led to the uncritical acceptance of the theory that a constitution which was
good enough for the United Kingdom was good enough for Trinidad and Tobago.
This point of view did not however take into account the differences which exist
between the British political culture and that of Trinidad and Tobago.
27. In reality the Westminster political system has a propensity to become
transformed into dictatorship when transplanted in societies without political
cultures which support its operative conventions. The underlying principle of the
Westminster system is that the party which controls the majority in Parliament
following an election is invited to form the Government. The person who is
leader of the majority party becomes Prime Minister and head of the Cabinet. He
chooses his Cabinet colleagues and junior ministers and he can dismiss them at
will. He also allocates the portfolios for which they are responsible. Once Cabinet
decides on a policy, it can easily be translated into law through the use of the
party's majority in Parliament:
28. In the 18th and 19th centuries, governments were defeated in Parliament.
Nowadays, party discipline rarely breaks down. The last occasion on which this
happened in Britain was in 1956.
29. Under contemporary conditions the Executive in the Westminster model
is so powerful that it has been referred to as a Cabinet dictatorship. Some
observers even claim that it is not really the Cabinet which is dominant but the
Prime Minister himself, assisted by his inner Cabinet, the Cabinet Secretariat and
a few individuals who may not even have any formal responsibility in the system.
The Prime Minister, it is noted, also has wide powers of appointment and dis-
missal. Further, he has the power to dissolve Parliament when he wishes, the
power to appoint and staff Cabinet Committees (here in fact a lot of key decisions
are taken on behalf of the entire Cabinet), the power to determine who chairs the
committee as well as which committee receives what matter for study. He also
determines in large part the agenda for Cabinet meetings and his oral summation
of Cabinet discussions determines to a large extent what policies are actually
adopted on behalf of the Cabinet. As leader of the party in Parliament and in the
country, the Prime Minister has at his disposal a powerful instrument of control
and influence. Those who cross him or fail to support his policies consistently
can hardly expect advancement. They may even be expelled from the party. This
has in fact happened on quite a few occasions in British political history.
30. Looked at from this perspective there is some justification for referring
to the British system as being Prime Ministerial government rather than parlia-
mentary government. Numerous scholarly accounts have been written about the
decline of Parliament in Britain and the corresponding ascendancy of the Prime
Minister. Parliament, it is said, has now become an anachronism which, like the
monarch, plays only a fitful and largely ceremonial role in the British system.
One of its key functions, control of the public purse, is in large measure done
perfunctorily since budgets are now too vast and complicated to be thoroughly
scrutinised. Party discipline, loyalty and an instinct for survival also make it
highly unlikely that a party which has a majority in Parliament will fail to support
its team.
31. Despite the formal correctness of these observations, there are extremely
important constraints which limit the powers of the Prime Minister. A British
Prime Minister always has to be sensitive to the fact that there exist in Britain
a vigorous press, powerful interest groups and an alert public opinion. Freedom
to criticise is an institutionalized part of the political process. There are things
which the Prime Minister knows he cannot get away with, and failure to recognize
these limits has often led to disaster. The British Prime Minister is also continu-
ously influenced by what his Cabinet colleagues think (they usually have some
standing in the party), as well as by the sentiments of back-benchers on his own
team which he is always careful to monitor through party whips. While there
is a great deal of deference to the Prime Minister and to authority in general,
the British public has a high degree of confidence in its capacity to influence
policies and does so continuously either by the actions of individuals or more
often through organised groups. There is also a large and vigorous academic
community with a long tradition of political participation, as contributors to
government policy or as critics of government. This participation is not held
to be inconsistent with their professional status. Their stance is never regarded
as either subservient or subversive.
32. The same cannot be said about Trinidad and Tobago, a society which
has just emerged from the fetters of colonialism. Here democracy is still a very
tender plant needing a great deal of care and nurture. If anything, the political
culture can be characterized as being highly bureaucratic. There is no deeply
entrenched tradition of political commitment and involvement on the part of the
"better off" people in the society. That which existed during the colonial era at
the national and local level has long since disappeared. Few people have bothered
to seek information about or attempt to influence the outcome of public policy in
a systematic and organized way. The public still very largely believe that policy-
making was a matter for "them" (the Government) and not for "us" (the people).
Those who are in a privileged position to know or to gather information and
who themselves possess the ability or can assemble the skills to make pertinent
and reasoned comment in support of or in disagreement with government policies
have for the most part been silent or have preferred to comment or grumble in
private. The few who made efforts to contribute to policy-making often found
that their efforts were not seriously entertained.
33. The reasons for this political passivity are varied. Perhaps the most
significant contributing factor is the tremendous patronage enjoyed by the State.
And the scope is widening. We find that in 1971 the State employed directly
33.5 per cent of the total paid work force so that it is now unquestionably the
largest employer in Trinidad and Tobago. This in effect means that there is
abundant opportunity for political patronage. Further, each year sees some
expansion of government activity-in industrial, commercial and financial areas,
in agri-business, in public utilities, in special works. The chairmen and members
of the public corporations and the government representatives on the boards of
companies in which the State has acquired an interest are all of them directly
appointed by the Prime Minister and his Cabinet. He appoints or nominates for
appointment Ambassadors and High Commissioners, most of the members of the
Senate, all public officers who are required to reside abroad for the proper
discharge of their functions and the holders of such offices in the Ministry of
External Affairs as he may from time to time designate. Further, it is in accord-
ance with his advice or subject to his signifying that he has no objection that
appointments are made to a number of offices. The list is long and impressive.
Governor-General
Chief Justice
Chairmen and Members of the Service Commissions
Auditor-General
Permanent Secretary
Deputy Permanent Secretary
Head of a Department of Government
Deputy Head of any such Department
Chief Professional Adviser to a Ministry
Deputies to such Advisers
Director of Personnel Administration
Solicitor-General
Chief Parliamentary Counsel
Registrar-General
Crown Solicitor
Commissioner of Police
Deputy Commissioners of Police
34. The use of patronage to win over or silence critics is undoubtedly uni-
versal. But in a small society such as ours it can be terribly effective. The
intelligent and ambitious most likely to launch a successful challenge to establish-
ment practices can often be persuaded that co-operation and deference provide
an easier path to follow.
35. Another reason for passivity has been the failure of the mass media to
play a really vigorous role in the development of public opinion. This failure
must of course be viewed in its relation to the intellectual, social and economic
environment in which they have to function and to the kind of reception which
a serious, resourceful and researching commentator may reasonably expect.
Further, restrictive terms in their licences keep political controversy completely
off television and radio, and two of the three daily newspapers are foreign-owned
with all that that implies as regards the freedom and the assurance of freedom
to be critical. Also, all the media are understandably sensitive about anything
which may affect their income, so that they are sometimes hesitant (or, contrari-
wise, brash) in taking stands on issues affecting government, advertisers or
particular group interests.
36. A third reason is the unwillingness of most people to oppose persons in
positions of authority openly or to criticise policies publicly. One cause of this
is the widespread network of friendships and associations among persons occupying
strategic positions in any small society. This generates a reluctance to offend.
There is also a disposition to treat everything with banter or to shrug it off as
of no consequence. In small countries like ours there is no anonymity, so that
it is made to appear difficult to detach the "who" of politics from the "why" and
"how". Hence it is hardly surprising that most "letters to the editor" in the daily
press and many commentaries on issues of the day are written under noms-de-
plume. The tendency is strong to be polite to an opponent rather than to expose
him to the public glare. Such accommodation does have some advantage in that
it helps to create an atmosphere of urbanity in political life, but the image of
civility is false and conceals what is in fact a masquerade. In the result, inefficiency
and incompetence, hypocrisy and corruption, errors and deficiencies of policy
are not rigorously exposed. Authority is merely laughed at, faults are glossed
over, and the matter ends there. These attitudes must be changed if the society
is to become efficient and mature. The constitutional procedures we are recom-
mending are designed hopefully to promote a much-needed change to honesty
and candour.
The Incidence of Race
37. Race is perhaps one of the most significant determinants of political
behaviour in Trinidad and Tobago. In the main, the society comprises two
ethnic groups-those of African and those of Indian descent. Together they make
up 82.95% of the population. Some 14.17% are or think of themselves as
"mixed". The rest, 2.88%, are for the most part of French, Spanish, British,
Portuguese, Chinese, Lebanese and Syrian stock.
38. All the evidence indicates that the pattern of voting tends basically,
though not invariably, to follow the racial, with those of African descent support-
ing the People's National Movement (PNM) and those of Indian descent support-
ing the Democratic Labour Party (DLP). At the 1961 general election the DLP
won ten seats-all in areas where Indians comprised more than 50% of the
population. The PNM won twenty-two in Tobago where the population is
almost exclusively African, ten in constituencies more than 50% African, five
in areas where the African vote was slightly larger than the Indian, and two
in communities where the two groups were numerically almost equal. In one
constituency only, Barataria, the PNM won where Indians were the majority
group, its candidate being an Indian with more than a little influence.
39. The "race" vote however has not been as monolithic as the figures might
suggest. The fact is that, while the major party support has come from the
respective races as shown, religion and class have blurred the lines of party
affiliation somewhat.
40. It should be observed that the ethnic influence in determining political
loyalties is not unique to Trinidad and Tobago. To the contrary, it is a common
feature. For instance, in Belgium, Flemings and Walloons tend to ally themselves
to separate parties; in Canada, the British and French; in Malaysia, the Malays
and Chinese; in South Africa, the Boers and English; and even in Britain there
is a growing phenomenon to be seen in the Celtic vote.
41. Nevertheless, we do not think it impossible to develop a genuine national
consciousness in a multiracial society. To achieve this, it is among other things
imperative that each of the major ethnic groupings should feel confident that
the constitutional and electoral system has not been devised to ensure the political
dominance of the one group or the other. To the extent that any such fears and
suspicions can be allayed, to that extent can genuine cooperation progress in the
urgent tasks of developing a national consciousness and of raising the standard
of living of all the country's citizens through the national and non-discriminatory
use of its human and physical resources.
42. Another manifestation of race is the disillusionment with conventional
politics exhibited by so many of our black youth. This is not confined to Trinidad
and Tobago but is common to many parts of the world. To that extent therefore
it may be regarded as in keeping with a trend. But it is much more than that. As
in many another newly-independent Third World country, the grievance lies in
the complaint that, while Independence has ousted white officialdom and appears
to have brought with it the trappings of black control, economic dominance has
not materially shifted. And the young people cannot wait. They are in a hurry.
Their cry is against the multinational corporations and the role played by metro-
politan business interests, against the emergence of new and mainly non-black
economic groupings, against the unemployment and under-employment of so
many of their brothers and sisters, and against the littleness of the change in the
day-to-day pattern of their ordinary lives. Their demand is for black dignity,
black consciousness and black economic control.
43. Although the statistics show that Trinidad and Tobago has one of the
highest per capital incomes in the Third World and that its distribution is much
more equitable than in most Third World countries, the feeling is widespread that
the gaps between rich and poor are much too wide. In the Manpower Income
Report published by the Central Statistical Office in January 1973 we find that,
while the per capital income for 1970 was TT $1,368.00, the monthly median
income of paid employees was TT $170.50 for men, TT $115.00 for women
generally and TT $85.50 for women outside the government sector. Also, official
figures show 14% of the labour force as being unemployed, in the administrative
and highly-populated area of St. George it is shown as high as 17%, and it is
thought that overall for school-leavers and others in the age group 15 to 25 it is
not less than 40%.
44. The Black Power Movement gained rapid support between February and
April 1970 when thousands marched in Port-of-Spain and other parts of the
country in a show of solidarity. The ban Government imposed by proclaiming
in April that a state of emergency existed was itself threatened by a mutiny in
the Regiment on the very day of the proclamation. The evidence available publicly
did not establish a connection between the dissident officers and the Movement,
but the general impression is that there was.
45. In all the turmoil the police remained loyal to the Government. As the
situation grew more difficult, the methods employed to maintain law and order
understandably became harsher. This in turn bred greater hostility towards
policemen, particularly among the younger and more idealistic elements and the
black and underprivileged poor. In the result, armed policemen have become a
feature of life in Trinidad and Tobago-a disturbing departure from a sound
tradition.
The Decline of Parliament
46. In the years immediately following the formation of a PNM Government
in 1956 Parliament was a vigorous and lively institution. In it were heard many
speeches which were founded on basic principle and which were well researched.
It witnessed also many dramatic confrontations between government representa-
tives and the Opposition. Its public galleries were often full, the press and radio
reported the speeches verbatim and most knew who the members were and
readily recognized them. Perhaps this was because party government involving
a major hand-over of political and administrative control was something new.
Everyone wanted to see how it would work and most people were anxious that
it should. It did. But it did not take long before interest began to wane.
47. Some of the factors contributing to the decline of Parliament are universal
in character, but others were local and specific. The controversy over the intro-
duction of voting machines and the delimitation of constituency boundaries for
the 1961 general elections was and has remained throughout the years very
bitter. It found immediate expression in the refusal of the Opposition to partici-
pate in the proceedings of Parliament, hoping thereby to advertise and win support
for their dissatisfaction with the new electoral procedures and their demand for
electoral reform. Also, their new leader (officially the Leader of the Opposition)
lived in London where he held the post of a lecturer and, with the leave of the
Speaker under the Standing Orders, remained absent and abroad for the whole
of the five-year parliamentary term except for brief intermittent appearances
usually at the time of the budget debate in December or early January. This led
to the first split in the DLP and, later, to disputes and rivalries over its leadership.
From the whole of these circumstances resulted a loss of interest in Parliament
and a disenchantment with its role as an institution of importance to the society.
48. The non-functioning of Parliament in its normally accepted role is evidenced
also by the record of questions asked by the Opposition, entertained by the
Speaker and answered by the Government in the House of Representatives. The
yearly averages for the five-year term 1956/1961 were 54.6 questions asked,
40 entertained and 38.8 answered. The comparative figures for the years follow-
ing, being for each of the years of the 1961/1966 and 1966/1971 terms and
for the year 1972/1973 (there was no parliamentary opposition in the year
1971/1972) are given in Table 1 hereunder:
No. of Questions
asked
5
23
17
Table 1
No. Entertained
by the Speaker
No. Answered
Source: Compiled by Constitution Commission's
of Parliament.
Staff from the records
It will be observed that, even when there was greater activity in questioning
during the 1966/1971 term, the record of questions entertained or answered was
hardly encouraging.
49. Further evidence of the non-functioning of Parliament in its normally
accepted role is to be found in comparing with the total number of Bills introduced
in Parliament the number which were rushed through all three stages on the same
day they came before each House, in most instances with very little previous
notice of the contents of the Bills. We give the record in Table 2 for each of
the years 1967/1972 from information similarly compiled:
Table 2
No. of Bills
(Private Bills
not included)
No. of Bills
rushed through
the House on
the same day
No. of Bills
rushed through
the Senate on
the same day
16
19
10
16
24
50. The failure of the DLP Opposition for the reasons mentioned in para-
graph 47 to perform as effectively as it ought and the non-functioning of Parlia-
ment in its normally accepted role as indicated in paragraphs 48 and 49 handi-
capped (if it did not wholly disable) the public in forming an intelligent judgment
Year
1961-62
1962-63
1963-64
1964-65
1965-66
1966-67
1967-68
1968-69
1969-70
1970-71
1972-73
Year
1967
1968
1969
1970
1971
1972
on the issues of the day and led to a progressive shifting of the active opposition
to areas outside Parliament including the Trade Union Movement, the University,
the left-wing groups, the idealistic or non-conventional youth and the more
radical press. We were therefore not surprised to find an overwhelming weight
of opinion at our meetings, in the memoranda we received and at the National
Convention that the Executive had grown too strong and Parliament too ineffective,
so that a first essential was to find ways and means of redressing the balance.
51. Perhaps we should add here that, although there are peculiar circumstances
making our problem appear to our people more acute, the executive arm of
governments throughout the modern world has taken unto itself more than
customary power at the expense of the legislative. That this is so has been made
plain even in the United States of America where the separation of powers is
constitutionally rigid. There, battle has been joined between the President and
Congress to restore and underline the powers and privileges of Congress and to
safeguard them against encroachment by the President. This illustrates the fact
that no simple solution can be achieved simply by changing forms, but we are
nonetheless convinced that a change of forms can help by providing a more
favourable environment for the development in the society of different political
attitudes. We do not accept the often expressed view that the present Constitution
is quite sound and that the fault lies in our failure to operate it properly. If we
cannot operate it properly, then for us it is not sound. We are of the view that
the Westminster model in its purest form as set out in our present Constitution
is not suitable to the Trinidad and Tobago society.
52. It is in this social, political and economic context that we have set about
our commission, and it is against this background that we recommend a new
Constitution for Trinidad and Tobago.
II THE GENERAL STRUCTURE AND
ITS UNDERLYING PRINCIPLES
53. Before setting out in detail the specific recommendations we have made
and the reasons in support, we shall sketch broadly the constitutional structure
we propose. A grasp of this will make it easier to follow the specific recommenda-
tions in each chapter since each part is so organically related to every other that
reference will sometimes be made in one chapter to institutions and procedures
which will be fully discussed only in a later chapter.
54. In approaching the task of drafting this new Constitution we have at all
times kept firmly in mind the nature of the society in which it was intended to
operate. We have sought to discover the concept which people have of the society
in which they live and their forecast of its probable course of development. This
involved examination of the political and social history of the country and
discussion in depth of recent developments. Chapter I sets out briefly some
conclusions we have arrived at from this historical analysis.
55. In evaluating the complex social, political and economic structure of this
country we consulted the available scholarly works. Among us were scholars who
had been actively engaged in that very task before their appointment as Com-
missioners. We had discussions with representatives of groups over a wide
spectrum of the society and with many individuals as well. We also relied upon
our collective experience each of us having lived and worked in the society in
important areas which brought us in close touch with so many of the problems
which cry so urgently for solution.
56. In assessing what people told us at public and at private meetings and
at the National Convention we operated from the basic premise that in societies
like ours where considerations of class and race often make people suspicious
of each other though superficially cordial, a person may often say what he
conceives he ought to say rather than what he really thinks. In the concrete
suggestions made, in the questions asked and in the arguments advanced in
support of positions we were able to discern the assumptions which the people
made about the society and their concept of its future. These did not differ in
essentials from the perceptions we had formed though inevitably in some areas
we have differed in the choice of methods in achieving an agreed goal.
57. We propose that Trinidad and Tobago shall become a Republic with a
President as Head of State and a Prime Minister as Head of Government. The
role of the President will not be purely ceremonial. Power will be vested in him
to appoint persons to certain offices of a national character. In some instances
he will do so acting in his own discretion after consultation with the Prime
Minister, the Leader of the Opposition and such other persons as he thinks fit.
In others he will nominate a candidate who will be appointed only after approval
by the National Assembly. There will be a Vice-President who will act for the
President when the need arises.
58. We propose that Parliament shall consist of a single Chamber, to be called
the National Assembly, presided over by the Vice-President as Speaker. For the
time being it will consist of 72 members-twice the present number. Half of
these will be elected as at present from the 36 constituencies into which the
country is divided. The other half will be selected from lists put up by political
parties contesting constituencies. This is a mixed system of electoral representation.
59. We propose that an Integrity Commission be set up to which members of
Parliament will declare their assets shortly after taking their oaths of office and
annually thereafter.
60. We propose significant changes in the Boundaries Commission. It will no
longer be a permanent body. It will be appointed to carry out one delimitation
and having done this will go out of office. The Chairman will be a neutral
appointed by the President in his own discretion, but the other members will
represent political interests.
61. It is proposed that the Elections Commission be replaced by an Elections
Commissioner. He will be nominated by the President and appointed if approved
by a three-fifths majority in the National Assembly. The Elections Commissioner
will head a department which will have the same relationship to the general
public service as the Auditor-General's.
62. We have provided for standing Parliamentary Committees to which all
Bills must be referred before being debated in the National Assembly unless that
body itself by a two-thirds majority otherwise directs. The Committees will also
be empowered to initiate inquiries into matters of policy or into the workings of
governmental institutions in the same way as is now done by Commissions of
Inquiry.
63. The Executive remains much as it is at present-a Prime Minister able
to command a majority in the National Assembly presiding over a Cabinet
selected by him and responsible to the Assembly. The office of Attorney-General
will however be differently constituted. He will be a public officer, not a politician.
He will be responsible for criminal prosecutions. He will also advise the President
if called upon. The Auditor-General, the Elections Commissioner, the Chairman
of the Boundaries Commission and the Ombudsman may likewise seek advice from
him as an independent non-political legal expert. Additionally, there will be a
Minister of Legal Affairs who will be a political appointee and member of the
Cabinet with a Chief State Counsel as his principal technical officer. They will
be responsible for the normal day-to-day legal advice which the Government may
require, for the conduct of civil litigation on behalf of the State and for the drafting
of Bills and other parliamentary instruments.
64. Provision has been made for an Ombudsman. He will be nominated by the
President and appointed if approved by a three-fifths majority in the National
Assembly. He will investigate complaints of maladministration in the public
service, in local government and statutory authorities. He will report to the
National Assembly through the Speaker.
65. The Service Commissions will perform substantially the role they now
perform. We have proposed a reorganisation incorporating the Prison Service,
the Fire Service and the Police Service under one Commission to be called the
Protective Services Commission. An Appeal Board has been proposed to deal
with appeals in disciplinary matters from the decisions of any Service Commission.
66. With a view to stricter financial accountability we propose to strengthen
the authority of the Auditor-General by vesting in him control of his own staff
and authorising him expressly in the Constitution to carry out efficiency audits
also. These are carried out concurrently with the expenditure of funds and are
intended to discover waste and inefficiency whereas regularity audits are conducted
after the event.
67. We have recognized the importance of local government by providing for
it in the Constitution itself. We have proposed that the system of voting in local
government elections should be similar to that in general elections with two-thirds
of the councillors being elected by the first-past-the-post system and one-third by
the list system. There will be a Tobago Regional Council similar in form with
the other county councils but with broader powers of advice in the planning
process.
68. We have also been guided by certain principles in arriving at our decisions.
We are satisfied that more effective government is possible only if there is greater
participation by the people in the processes of government. The tendency to think
of the Government as "they" and the people as "we" must be corrected. It is an
inevitable heritage of a period of colonialism when Government was an impo-
sition from abroad which nationally-minded citizens could only wish to remove.
Although this type of thinking has no place in an independent country, the fact
is that since Independence the machinery of government has tended to reinforce
it. The decision-making process has remained as shrouded in secrecy as it was
before. Important decisions are taken on serious issues without the public being
aware that these issues are even being discussed. We think that the processes of
government need to be opened up so that the citizen can be made aware of what
is taking place and that institutions should be set up enabling him to participate
without undue difficulty.
69. We have also sought to stress the idea of national independence. Naturally
enough, regional and international co-operation is necessary since no island can
be a world. But it is important that Trinidad and Tobago should develop a
sense of self-reliance and of self-confidence. While there should be no hesitation
in seeking from all sources any ideas which can be of use in the economic, social
and constitutional development of the country, it must be emphasised that final
decisions must be made here and must be based on local needs. Wherever
practicable, we have tried to have power shared among various institutions rather
than concentrated in one. This follows from the principle of participation already
mentioned. At the same time we have kept in the forefront of our deliberations
the fact that there are practical limits to the diffusion of power. A government
in office must have sufficient constitutional authority to carry out its policies.
70. We have accepted the importance of party politics in the operation of a
democratic society and our proposals have been designed to strengthen the party
system. We have sought to build checks and balances within the democratic
process itself instead of relying on a nominated Senate as in the present Constitu-
tion. We have recognized that there is a certain distrust of the politician as a
person capable of acting in the national interest. But we think that an electoral
system designed to permit representation of all significant political interests will
produce a legislative body the decisions of which should reflect the national
interest. It is our view however that, in a small community such as this, rigid
confrontation by opposing parties on all issues cannot be for the benefit of the
society. Areas of consensus and compromise must be sought and expanded.
Some of the procedures which we have proposed are geared towards this goal-
in particular the new committee system in the National Assembly.
71. We accept that the society is multiracial with two major racial groupings
-those of African descent and those of Indian descent. As we have stated in
the introductory chapter, the pattern has been that each of these groupings has
supported a major political party. We think this is likely to continue in the
foreseeable future. There will be competition as well between members of each
group in all the varied spheres of activity in the community. Our proposals are
aimed at devising a fair system of electoral representation which will leave neither
group with a sense of being at a disadvantage and which should encourage the
growth of political groupings not obviously based on ethnic origin.
72. We have had full and widespread consultation with the people on the
type of constitution they want, but we have not conceived our role as being
merely that of ascertaining the majority view and casting it into proper shape.
We thought we should be guided but not governed by what appeared to be the
consensus of public opinion on any issue. As will be seen in the course of this
Report, we have not hesitated to disagree with a popularly supported view where
an overriding principle appeared to be involved.
II- FUNDAMENTAL RIGHTS AND FREEDOMS
73. This chapter of the present Constitution was a subject of most anxious
concern in the memoranda submitted to us as well as at our meetings throughout
the country and at the National Convention. Two sections especially, namely
sections 3 and 5, provoked the severest criticism.
74. Concern was aroused, particularly since 1970, because of the passing
of laws abridging rights and freedoms which had previously been enjoyed.
Examples of such laws are the Sedition (Amendment) Act, No. 36 of 1971,
the object of which was to update an earlier Sedition Ordinance, and the Summary
Offences (Amendment) Act, No. 1 of 1972, which made police permission a
necessary prerequisite for holding a public meeting. The fear is strong that such
abridgments will continue.
75. The two Acts followed an abortive attempt to introduce a Public Order
Bill in 1970. It was withdrawn after the strongest public opposition to vesting
in the Executive wide-ranging powers to deal with threats to law and order. The
public refused to be persuaded that the severe sanctions proposed by the Bill
would never be used against law-abiding citizens or that its object was to protect
their rights and freedoms. They apprehended that once any such sanctions were
made available there could be no guarantee that they would not be misused.
76. For the passing of the two Acts recourse was had to section 5 of the
Constitution. This section provides that an Act of Parliament may expressly
declare that it shall have effect notwithstanding that it abridges or infringes a
fundamental right or freedom, so recognized and declared by the Constitution,
provided that at the final voting thereon it is supported in each House by the
votes of not less than three-fifths of all its members. The provision has been
strongly criticised since an apparently unqualified right or freedom which is
declared to be fundamental should not normally be capable of any abridgment
or infringement. In that sense, section 4 is exceptional and can be understood. It
provides for the passing during a period of public emergency of Acts which may
abridge or infringe the fundamental rights and freedoms but which are expressly
declared to have effect during that period only. But emergency considerations
do not apply when no state of emergency exists.
77. Yet section 5 has been thought necessary for enacting laws which at first
sight do not appear to affect any fundamental right or freedom. An example of
this is the National Insurance Act, No. 35 of 1971, which provides for the
compulsory deduction of contributions to the National Insurance Fund from the
earnings of employed persons and is really a measure for social insurance. Because
the deduction is compulsory it was thought prudent to pass the law under section
5 lest the point be taken that it infringed the right, expressly recognized and
declared, of all persons to the enjoyment of their property.
The Rationale of the Existing Provisions
78. These problems have arisen because the Bar Association's view prevailed
that the fundamental rights and freedoms should be briefly and simply stated.
Objection was taken to the original draft of the present Constitution which set
them out in much the same way as in the European Convention on Human Rights.
So the Canadian Bill of Rights was adapted without fully appreciating the diffi-
culties inherent in altering what was a general code of rules for interpreting
statutes so as to become a positive affirmation of fundamental rights and
freedoms.
79. In so doing, the present Constitution adopted an approach which reflects
the thinking in the United Kingdom. There, no written Constitution exists and
all individual rights have their roots in the common law. These rights may be
defined as the area of permissible activity when all the laws restricting the
individual have been taken into account. Thus freedom of thought and expression
has always existed in Trinidad and Tobago. But everyone knew without its being
explicitly stated that this freedom was subject, among other restraints, to the law
of libel and slander, to the Sedition Ordinance of 1920, to the laws against
obscenity and blasphemy, to the prohibition against publishing reports of the
proceedings at preliminary inquiries into indictable offences and to the power
of government to ban the importation of literature which it considered subversive.
80. This result was achieved in our present Constitution by the expedient of
section 3 which in a comprehensive provision made all the declared rights and
freedoms subject to all the laws in force in Trinidad and Tobago at its com-
mencement. Also, because there was from that time onwards to be a written
Constitution guaranteeing those rights and freedoms from abridgment or
infringement, provision had to be made for validating future laws which might
appear in any respect whatever to be in breach of that guarantee. Hence section
5 with its safeguards both of an affirmative vote by a special majority and of
a further condition that any Act passed thereunder might be struck down if
"shown not to be reasonably justifiable in a society that has a proper respect for
the rights and freedoms of the individual". The effect was indeed to produce a
brief and apparently simple statement of rights and freedoms. But the brevity
and apparent simplicity were misleading. Many people were shocked to find out
that rights and freedoms set out in absolute terms were subject to important
limitations the extent of which was nowhere defined. This led some people to
wonder, perhaps cynically, whether there was any meaning to these rights and
freedoms at all.
81. We are convinced that it is wrong to set out rights and freedoms in
absolute terms, defining them as fundamental, and then to provide that Parlia-
ment may pass laws expressly declaring that they shall have effect notwithstanding
those rights and freedoms. The concept may well be seriously questioned if
Parliament finds it necessary or prudent to pass such laws with any frequency.
Indeed, the position in our view is made worse when some of them, far from
being restrictive, are plainly beneficial in that they make available social and
economic advantages never before enjoyed. We think therefore that it is better to
define the rights and freedoms not in absolute but in qualified terms so that every-
one should know and understand that they are limited in scope. At the same time,
the permitted qualifications should not extend beyond what is reasonably justifiable
in a society having a proper respect for the rights and freedoms of the individual
or during a period of emergency beyond what is reasonably justifiable for the
purpose of dealing with the situation existing during that period.
The Content and Scope of the New Provisions
82. Accordingly we recommend that the new Constitution should adopt the
pattern of the European Convention on Human Rights. In so doing, we reverse
the decision taken in 1962 on the recommendation of the Bar Association and
fall in line with all other Commonwealth Caribbean countries having a written
constitution and with many others besides. Special provisions should be included
to have effect during periods of public emergency. We shall refer to those later.
83. As can be seen from the draft of the new Constitution submitted with this
Report, each right is broadly defined and then are set out heads of exceptions
under which laws can be passed which will not be deemed to be an abridgment
of the substantive right.
84. In the case of certain rights the heads of exceptions can be and have
been made quite specific. These are the right to life, the right to personal liberty,
the right to equal protection under the law, the right to protection from inhuman
treatment, the right to protection from slavery and forced labour and the right
to protection from being deprived of one's property. This is because the law in
these areas is highly developed and it is possible with accuracy to define permis-
sible areas of limitation of the general right.
85. In other cases-the right of privacy, the right to freedom of thought and
expression, the right to freedom of conscience and belief, the right to practise
one's profession-defining precise areas of limitation is more difficult because
circumstances are infinite and the law is still in the process of development. So
a broad exception has had to be stated permitting legislation in the interests of
defence, public safety, public order, public morality, public health or for the
purpose of protecting the reputations, rights and freedoms of others. Admittedly
these are vague categories under which serious inroads can be attempted. To
reduce the likelihood of abuse we recommend two checks-
(i) that any law purporting to fit within any of these categories should be
passed by a three-fifths majority;
(ii) that any such law should be valid only if its provisions cannot be shown
not to be reasonably justifiable in a society which has a proper respect
for the rights and freedoms of the individual.
The latter requirement will permit a review by the courts even when the law
has been able to clear the hurdle of the larger parliamentary majority.
86. We have not included in the draft any clause preserving existing legislation.
Where an existing law abridges or infringes a fundamental right, its validity will
depend on its falling within one or other of the permitted exceptions and also
on its satisfying the test of what is reasonably justifiable in a society with a
proper respect for the rights and freedoms of the individual. It will not, if enacted
before Independence, have had to be passed by a three-fifths majority; that
requirement will only apply thereafter.
87. We are satisfied that the specific categories set out will accommodate all
areas of existing desirable legislation. The broad exception of public interest leaves
room for dealing with any unusual situation which may develop. We are confident
that the capacity of any government to act has not been unduly circumscribed.
88. Further, because the formulation we have used has been so widely
adopted, there will be a growing body of decided cases on its interpretation in
various parts of the world which should be of help to our courts when dealing
with their own problems. Cases dealing with the European Convention on Human
Rights will also be useful since there are many points of similarity between the
Convention and the proposed Declaration of Rights-the name we have suggested
for the new chapter in our draft.
89. It will also be possible to challenge existing laws which may be thought
to abridge or infringe the fundamental rights and freedoms as they have now
been defined since there has been no wholesale adoption of the pre-Independence
body of law. It seems only proper that citizens should be able to test such laws
against the standards which the society has elected to adopt.
90. It is our hope that the language is simple enough to be understood by
anyone. Now that exceptions have been set out, the reader will be alerted to
areas where restrictions exist and will not be misled into thinking that the right
is absolute.
The Right to Strike
91. Once the form had been decided upon, the question as to which rights
should be included did not pose serious problems. We were asked to include
the right to strike but have not done so. The Court of Appeal for Trinidad and
Tobago decided that there was no such common law right and this was upheld
by the Privy Council. Its inclusion would therefore have involved the creation of
a new right. We would not have hesitated to do this had we thought it necessary,
but we did not think it was.
92. The emphasis in Trinidad and Tobago today should be on the generation
of new wealth and the restructuring of the society so that the wealth produced
will be more equitably distributed than it is at present. Creating a right to strike
would be emphasising the negative. Necessary as a strike may be at some times,
it produces no wealth and, where an essential service is involved, may expose
the community to grave dangers or hold it up to ransom. We do not in any way
imply that a worker should be totally debarred from striking. This may be the
only method of resolving a dispute when all peaceful means have been exhausted.
The strike should never be illegal so long as our present system of economic
organisation exists, but we see no reason to elevate it to the status of a consti-
tutionally enshrined right-on the same plane as the right to life or to personal
liberty.
93. What we have said about strikes and the "right" to strike applies in the
same way to lock-outs by employers.
Social and Economic Rights
94. Questions also arose as regards social and economic rights-for example,
the right to work, the right to a living wage, the right to social security and the
right to education. These are important matters. The statistics on unemployment
and on the distribution of income set out in the Introduction to this Report prove
beyond doubt that for many of our citizens the enjoyment of political rights may
well be meaningless because of economic privation. We do not think however
that these rights can be stated in a manner which would be enforceable in the
courts. The right to work, for example, must be dependent upon the number of
jobs available. If there are not enough jobs a problem would arise as to who
is to be sued by a person claiming that he had been denied his right to work.
There would seem to be little point in obtaining a declaration that one's rights
had been infringed when there is no way of remedying the infringement.
95. It could also be argued that if there is a right to work there must be a
correlative duty to accept such work as is available. Most people would prefer
to have a choice in this area and would not like to be compelled to take a job
simply because it happens to be available.
96. The rights to social security and education depend on the resources avail-
able for use. And although the right to a living wage could more easily be made
into law, unless the wage is fixed the right would lack meaning. Courts would
not relish having to give decisions on an issue so clearly outside the ambit of the
purely legal. What is needed is a Minimum Wage Law which can be easily
amended specifying a minimum wage or providing a mechanism by which it can
be calculated. Also, a radical change in the economic organisation of the society
may give to all these problems a completely different dimension.
Directive Principles of State Policy
97. For these reasons we have not set out these social and economic rights
as substantive rights which, if so set out, would mean that they are capable of
being enforced in a court of law. We have set them out as Directive Principles
of State Policy. These embody a solemn declaration setting out the goals which
the State aims at achieving by its day-to-day efforts. They provide a standard
by which government activity can be judged.
98. To emphasize that this is by no means a one-sided arrangement we have
included a statement of the obligations which we think the citizen owes to the
community. These also would not be enforceable in any court of law but, together
with the Directive Principles of State Policy, they are designed to lay a proper
foundation of reciprocal rights and obligations on which a just society can be
built.
Freedom of the Press
99. We were urged not to include freedom of the press as a substantive right.
The argument was that it was merely one aspect of freedom of thought and
expression and needed no more protection than was afforded to any other. Setting
it up as a specific right might create the impression that the press and the news
media generally enjoyed a right in the area over and above that enjoyed by
everyone else.
100. In our view, the argument underestimates the emotional and historical
importance of the concept of freedom of the press in the development and
preservation of all the values which go into the framing of a Declaration of
Rights. The deliberate omission of this freedom in the new Constitution might
give the totally wrong impression that we are not particularly concerned that the
press should remain free. However, to make it absolutely clear that the freedom
of the press and other news media is not intended to confer upon them privileges
wider than those conferred on anyone else we have included it as a part of the
article declaring the right to freedom of expression. This, it should be observed,
follows the precedent set in the European Convention on Human Rights. We have
also made the freedom subject to regulation of a kind similar to that set out in
the Newspapers Ordinance, Ch. 30 No. 8, which we consider reasonable.
Radio and Television
101. There were complaints that the Government's control of radio and
television either through licensing arrangements or direct ownership gives it
an effective monopoly over these powerful media of communication. Opposition
parties are not given free time in which to express their views nor are they
allowed to buy time for that purpose.
102. We discussed this matter with senior officials of Radio 610, Trinidad
Broadcasting Company Limited (Radio Trinidad) and Trinidad and Tobago
Television Company Limited. They have no objection in principle to permitting
political broadcasts and agree that regulations can be drawn up which would
ensure fairness. But, in their view, the instruments under which they operate do
not permit them any discretion in the matter.
103. Radio 610 is wholly state-owned and its officials are guided by the
licence granted to its predecessor Radio Guardian, the terms of which are
similar to those in the licence under which Radio Trinidad operates.
Clause 15(1) of this licence reads-
"The Company shall not in its programmes transmit either directly
or indirectly any matter undermining any religious or political con-
viction or ridiculing or criticising any race, colour or creed".
While the intention behind this prohibition may be praiseworthy it is certainly
expressed in language which is far too wide. Any political broadcast would aim
at undermining the political convictions of some group in the country since its
purpose would be to make converts to its cause.
104. Clause 16(1) empowers the Minister-
"in the national interest to introduce preventive supervision of broad-
casting transmissions which shall consist of prior examination of any
programme".
And clause 16(4) empowers him in the national interest to-
"require the company to refrain from transmitting any matter which
in his opinion should not be transmitted".
We are satisfied that these provisions constitute a substantial and unjustified
infringement of the right of freedom of expression in that they unduly restrict the
use of one of the most effective means of receiving and imparting ideas and
information on political matters.
105. The position of the Television Company is no better. Clause 2 of the
Heads of Agreement under which it operates provides as one of its undertakings
that it will-
"preserve due impartiality in respect of matters of political or industrial
controversy or matters relating to current public policy, and ensure
that no matter is included in the programmes or the advertisements that
is designed to serve the interests of any political party, provided that
this shall not prevent the inclusion in the programmes of properly
balanced discussions or debates where the persons taking part express
opinions and put forward arguments of a political character".
Again this prohibits telecasts and advertisements by political parties.
106. The ban of course operates as well against the party which forms the
Government, but the appearance of equality is an illusion. The Government has
free time for its use both on radio and television. Some of this time is inevitably
used to publicise its activities and achievements so that in effect the ban on
political broadcasting does not affect the governing party in quite the same way.
107. We recommend that this ban on political broadcasts, telecasts and
advertising should be removed and that a code should be drawn up to regulate
this use of radio and television. The Jamaica Broadcasting Corporation which has
been set up as an independent public corporation considers that it has an obligation
to further the process of democracy by encouraging the use of radio and television
to acquaint the electorate with the issues of an election campaign. This approach
is absolutely sound and should be adopted as the official policy of any government
if freedom of thought and expression is to be made fully effective. However,
other than declaring the right to freedom of expression including the freedom
of the press, we do not consider it appropriate to make any specific reference to
this matter in the Constitution although we consider it of the utmost importance.
108. The Television Heads of Agreement provided for the formation of a
Television Advisory Council to advise the Government and the Company on all
matters affecting television, but the Council has never been established. However,
the licence to Radio Trinidad provided for the formation of a Broadcasting
Programme Committee to consist of representatives of the Government and
licensed radio broadcasting, wire broadcasting and television services operating
in Trinidad and Tobago. Its powers which are set out in clause 14(3) of the
licence were basically to co-ordinate programming so that normally there would
be a choice of programmes as between one station and another, to encourage
appropriate programmes for Sundays, official holidays and national days, to
promote the cultural level of programmes and to satisfy as much as possible the
desires of any cultural, religious or other recognized body.
109. We recommend that a body similar to the Broadcasting Programme
Committee be set up. It should be composed of seven members, all appointed by
the President in the following manner:
2 acting in his own discretion, one of whom shall be named as Chairman;
1 acting in accordance with the advice of the Prime Minister;
1 acting in accordance with the advice of the Speaker from the parties
in the National Assembly not forming part of the Government; and
3 acting in accordance with the advice (as to one each) of the respective
Boards of Directors of the two radio stations and the Television
Company.
This body would exercise a regulatory function which would include drawing
up guidelines for the media in fulfilling their public responsibility and supervising
the manner in which these guidelines are implemented.
110. Returning to the subject of political broadcasts, we recommend that
parties contesting elections should have free time allotted equally among them
from nomination day to the eve of polling day. The definition of a political party
will not be difficult if the mixed system of elections is adopted. Any party which
has qualified to put up a list would have qualified for free time. Independents could
apply for free time but the granting of it would be in the discretion of the
regulatory body. Paid spot commercials should be permissible from nomination
day also to the eve of polling day. Again, equal time should be available to each
party. Outside of campaign time rules could provide for the setting aside of a
particular period each week which would be available to parties wishing to
purchase time. Regulations could provide for matters concerning the length
of any programme and its content.
111. We would propose also that all political broadcasts should be pre-recorded
so that they would be subject to scrutiny to ensure that-
a) they contain no defamatory matter;
b) the language is not offensive though of course it may be quite forceful;
and
c) they fit within the time prescribed.
These proposals should raise the level of community political awareness and
participation and also ease the bitterness which opposition groups tend to feel
because of being deprived of a hearing.
State of Emergency
112. We have recommended significant changes in the provisions relating to
a public emergency. The role of Parliament in the process has been emphasised.
Under the present Constitution the Governor-General is empowered to declare
by proclamation that a state of emergency exists if he is satisfied that a public
emergency has arisen as a result of the imminence of war or as a result of some
national calamity or
"that action has been taken or is immediately threatened by any person
of such a nature and on so extensive a scale as to be likely to endanger
the public safety or to deprive the community, or any substantial
portion of the community, of supplies or services essential to life".
Any such proclamation that a state of emergency exists, unless previously
revoked, remains in force for 30 days.
113. The practice followed over the course of the last ten years has been
to recite in the proclamation the passage quoted above without in any way
indicating even in general terms the nature of the action taken or threatened, or
whether the action had been already taken or was only immediately threatened,
which led to the declaration that a state of emergency existed. Then the Prime
Minister would usually speak to the nation on television and radio giving reasons
for the action taken. That would be the end of the matter. We think this expla-
nation should be the subject-matter of a debate in the National Assembly. Having
regard to the size of Trinidad and Tobago, we do not envisage any difficulty in
summoning the National Assembly and presenting before it an explanatory
statement for its information.
114. We recommend therefore that within three days of his issuing a procla-
mation declaring that a state of emergency exists the President should submit
to the National Assembly a statement of his reasons for so doing. We recommend
that this proclamation should be effective for 15 days, and not 30 days as at
present, and that the National Assembly be empowered to grant extensions by
a simple majority for periods of up to three months each but not exceeding six
months in all. Extensions beyond that limit would require a three-fifths majority.
It is our view that any Government should within 6/2 months be able to deal
with the circumstances that made it necessary to declare that a state of emergency
existed. If the situation at the end of that period should still be difficult, then it
should be obvious enough for the Government to win the support of other groups
in the National Assembly in the event that it does not control a three-fifths
majority.
115. None of these provisions would of course apply to a period of public
emergency which has come into being because Trinidad and Tobago is engaged
in a war. In such circumstances the period of public emergency would last so
long as the war lasted.
116. The present Constitution also provides for a period of public emergency
to be brought into existence by a resolution passed by a two-thirds majority of
all the members of each House of Parliament declaring that democratic institutions
are threatened by subversion. We see no reason to retain this provision especially
in the light of the parliamentary control which we have prescribed for a period
of public emergency declared by proclamation of the President. Accordingly we
have omitted it completely.
117. We think also that there should be changes in the Review Tribunal.
Under the present Constitution, the Tribunal is empowered only to make recom-
mendations which the Government is free to accept or reject. We recommend that
the Tribunal's recommendations should be accepted as binding since detainees
have been convicted of no offence and their detention should appear to be well-
founded to warrant its continuance. It would appear too that the burden is on
the person detained to satisfy the Tribunal that he ought not to be detained. We
recommend that the burden should be shifted the other way. Unless the Govern-
ment is able to satisfy the Review Tribunal within that time that a person should
be detained, then he should be released after a period of two months. If, of
course, the Tribunal makes a determination in his favour before then, he should
be released forthwith.
118. We recommend further that the President should be required to appoint
the Review Tribunal within 72 hours of the proclamation that a state of emergency
exists. And the Tribunal must review the case of each person detained whether
he applies for a review or not.
119. We recommend also that persons detained during a period of public
emergency ought not to be detained in prisons and ought not to be subject to
the same disciplinary codes as prisoners on remand or after conviction. While
it may be necessary for the stability of the society that they should suffer loss of
liberty without positive proof of guilt, it should always be kept steadily in mind
that they have not in fact been proved guilty of any offence against the criminal
law.
120. In the same spirit we would note that the Executive in the exercise of
the power of search should at all times avoid any further invasion of the rights
of privacy than is reasonably required. A search may be perfectly legal and yet
may be clearly conducted in an oppressive manner. It would not appear possible
to frame the right to search in such a way as to prevent its use as an instrument
of oppression, but the very public interest which makes the right to search
essential also demands that it should not be used oppressively.
121. No matter how perfectly any scheme for the protection of human rights
and fundamental freedoms may be set out, in the final analysis its effectiveness
depends on the strength and integrity of the courts and the willingness of citizens
to challenge there any actions which they may consider to be an abridgment or
infringement of their rights. One restricting factor very obviously is the expense
of litigation. We recommend therefore that the courts should be empowered to
make an order that the State should pay the costs of all parties in any case in
which it is satisfied that an issue of constitutional importance was reasonably
raised for decision.
IV CITIZENSHIP
122. The main issue for decision under this head was whether or not citizens
of Trinidad and Tobago should be permitted at the same time to be citizens of
another country-that is, should there be dual citizenship? The architects of the
present Constitution were firmly opposed to the idea and that was very much
the thinking in the African countries which attained independence about that
time. Any person who became a citizen of Trinidad and Tobago on August 31,
1962 and who could also claim citizenship of another country was therefore
required to renounce that other citizenship by August 31, 1964 or forfeit his
citizenship of Trinidad and Tobago. The terminal date was subsequently extended
to August 31, 1967. Minors were allowed a year after reaching the age of
majority to renounce.
Consequences of Prohibiting Dual Citizenship
123. Many persons were not aware that they held a citizenship other than
that of Trinidad and Tobago. An example will illustrate. A person born in
Trinidad and Tobago of a father born in Grenada would, if born before
Independence be entitled to citizenship of Trinidad and Tobago because he was
born here. He would also be entitled to citizenship of the United Kingdom and
Colonies by descent from his father. The likelihood is that he would be completely
unaware of that fact, yet if he failed to renounce his citizenship of the United
Kingdom and Colonies by August 31, 1967 he would cease to be a citizen of
Trinidad and Tobago after that date. The possibilities are that he might have
no real connection with any country other than Trinidad and Tobago and might
still consider himself a citizen.
124. In 1965 there was an amendment of the Constitution to alleviate this
hardship. Persons who became citizens of Trinidad and Tobago on August 31,
1962 but retained their citizenship of the United Kingdom and Colonies after
that date and failed to renounce the latter citizenship within the specified time
were absolved from the penalty of forfeiting their Trinidad and Tobago citizen-
ship. They were thus permitted to keep both citizenships. The penalty continued
however to apply to persons who, having become citizens of Trinidad and Tobago,
failed to divest themselves of any second citizenship which they held or acquired
other than citizenship of the United Kingdom and Colonies.
125. Another difficulty arose after Guyana and Barbados became independent
in 1966. Their Constitutions conferred citizenship by descent on persons born
in wedlock of Guyanese or Barbadian fathers and citizenship by birth on persons
born in Guyana or Barbados. This meant that a number of persons who were
citizens of Trinidad and Tobago now became citizens of Guyana or Barbados
as well, for a person might be born in Trinidad and Tobago of a father who was
himself born in Guyana or Barbados or, vice versa, be born in Guyana or
Barbados of a father born here. Such persons stood to lose their Trinidad and
Tobago citizenship unless they renounced their newly acquired citizenship within
the specified time. Again most persons were really unaware of this.
126. Another amendment of the Constitution in 1968 permitted such persons
to retain their citizenship of Trinidad and Tobago as well as their citizenship of
the other Commonwealth Caribbean country. But as enacted, the amendment was
limited so as to apply only to persons who-
(a) had acquired Trinidad and Tobago citizenship on August 31, 1962
and
(b) subsequently acquired citizenship of a Commonwealth Caribbean
country.
Accordingly, it does not apply to persons born after August 31, 1962 or to
persons who, having become citizens of Jamaica on August 6, 1962-the date
of that country's independence, later acquired citizenship of Trinidad and Tobago
on August 31, 1962.
Modification of the Law against Dual Citizenship
127. It is clear that the Constitution as amended recognizes that dual
citizenship should be permitted at least in some cases where serious hardship
could result from insistence on the principle that a citizen of Trinidad and
Tobago should be a citizen of no other country. In our view, the amendments
do not carry the matter far enough and give rise to a number of anomalous and
illogical distinctions. Accordingly we recommend that a citizen of Trinidad and
Tobago who automatically acquires by birth, descent or marriage the citizenship
of another country should not have to renounce that other citizenship in order
to retain his citizenship of Trinidad and Tobago. We recommend also that this
provision should be made retroactive to ensure that citizens of Trinidad and
Tobago who lost their citizenship without voluntary act through the restrictive
provisions of the present Constitution should have it restored.
128. Much more difficult is the problem of persons who voluntarily acquire
the citizenship of some country other than Trinidad and Tobago. This is of
vital interest to our many citizens abroad. Exact figures are not available but
estimates place the number of citizens of Trinidad and Tobago in Canada and
the United States of America as high as 100,000. The number of persons born
in Trinidad and Tobago who are now living in the United Kingdom has been
put at between 42,000 and 45,000. As already mentioned, members of the Com-
mission obtained at first hand the views on citizenship of Trinidad and Tobago
citizens in Toronto, Montreal, Ottawa, New York, Washington and London.
Further, two members of the Trinidad and Tobago Alliance in New York took
the time and trouble to attend the National Convention at Chaguaramas where
they put the case for full dual citizenship.
129. Their case was based on the fact that many of our citizens who go
abroad do so not because they wish to abandon the country of their birth but
because there are greater opportunities for economic and professional advance-
ment in the United States of America, Canada and the United Kingdom. The
Government of Trinidad and Tobago officially favours emigration. It helps to
relieve unemployment and to ease the frustrations which build up when people
realise that their aspirations cannot be achieved in the society as it is. Emigrants
therefore feel that they should not be deprived of their citizenship if it becomes
necessary for them to adopt the citizenship of the country where they live in
order to take full advantage of the opportunities there. Increasingly as unemploy-
ment begins to plague even the developed countries, governments are insisting
on citizenship as a qualification for entry into certain jobs or for promotion to
others. In some cases our citizens have allowed promotion opportunities to pass
by rather than give up their citizenship which carries with it the right to return
and work and to acquire land or make investments here.
130. Indeed throughout our discussions abroad the right to return and the
right to acquire land stood out as vital interests which the emigrant sought to
safeguard. Even though in fact very few of them did return, there was under-
standable hesitation over abandoning the right to return by renouncing their
citizenship of Trinidad and Tobago. The recommendation we have made is aimed
at protecting these rights while not going all the way towards dual citizenship.
We recognize and appreciate that emigrants do help by remitting money home,
by contributing to the welfare of the people of Trinidad and Tobago in many
and various ways and by acquiring skills which may aid the growth of the
economy when occasionally they do return, but we are satisfied that the full
benefits of citizenship should not be retained by those who voluntarily, for what-
ever reason, adopt citizenship abroad.
Resumption of Citizenship
131. We recommend therefore that a citizen of Trinidad and Tobago by
birth or descent who voluntarily acquires the citizenship of another country
(otherwise than by marriage) should still forfeit his citizenship of Trinidad and
Tobago. But if such a citizen should decide at any time to resume his citizenship
of Trinidad and Tobago he should be entitled as of right to do so, provided he
renounces the citizenship of that other country and makes such declaration of his
intentions concerning residence or employment as may be prescribed by law. He
should not have to go through the process of naturalisation to re-acquire his
Trinidad and Tobago citizenship. He should have the right by law to resume
it. This seems to us amply to protect one of the interests which need protection-
the right to return.
132. In any event many countries insist on renunciation of any other citizen-
ship as a condition precedent for naturalisation. And a naturalised citizen of such
a country, exercising a right to which he is entitled by virtue of his first citizen-
ship, would lose the citizenship which he has acquired by naturalisation. Hence,
even if Trinidad and Tobago permitted dual citizenship, it could not in fact be
fully enjoyed. Until fairly recently this was the position in the United States of
America. Now however, as the result of a decision of the Supreme Court of that
country, loss of U.S. citizenship in such circumstances would seem to be no
longer automatic but to depend on proof of an intention to relinquish it. Neverthe-
less the requirement to renounce all other citizenships continues to apply as a
pre-condition to the acquisition of U.S. citizenship by naturalisation. Canada too
insists on renunciation on the acquisition of Canadian citizenship.
Concessions to Former Citizens
133. The other vital interest seeking protection is the right to buy land in
Trinidad and Tobago and to invest in the shares of locally registered companies.
If our recommendation is accepted, citizens of Trinidad and Tobago who volun-
tarily acquire citizenship of another country (other than by marriage) would be
aliens within the meaning of the Aliens Landholding Ordinance as amended by
the Aliens Landholding (Amendment) Act, No. 11 of 1969, so long as they hold
that other citizenship. The present policy is that aliens are not given licences to
acquire freehold land in Trinidad and Tobago. They may be granted a licence
only to acquire a lease, usually for a term not exceeding 30 years. An emigrant
intending to return to settle in Trinidad and Tobago quite probably and reasonably
would wish to provide for this in advance by acquiring a home and perhaps
investments here. We do not think he should be hindered in so doing.
134. Accordingly, we recommend that the Ordinance be further amended to
create a special class of aliens comprising former citizens of Trinidad and Tobago
by birth or descent who have lost their citizenship by voluntarily acquiring
citizenship of another country and to grant them special rights. We propose
that they should have the right, without obtaining a licence and without limit, to
invest in the shares of local companies. They should also have the right to
purchase freehold property up to a certain value. We would suggest $150,000.00
as an appropriate limit at present, but this should be subject to revision from
time to time. If a purchase would take the value of their holdings above that
sum, then they should seek permission like any other alien. These proposals we
are satisfied give ample protection to the other vital interest-the right to purchase
property in Trinidad and Tobago against the possibility of an eventual return.
Aliens and Naturalisation
135. We recommend that an alien should not be granted citizenship of
Trinidad and Tobago unless he renounces the citizenship of any other country
which he may hold. This is consistent with our earlier decision not to permit
our nationals by birth or descent to acquire another citizenship by naturalisation
while still retaining our own.
Discrimination against Women
136. There are two areas in which the women of Trinidad and Tobago have
suffered discrimination. First, in the case of children born in wedlock citizenship
by descent is now transmitted only through the father. We see no good reason
why this should be so and we recommend that the mother should also be capable
of passing her citizenship on to her children. This may result in some children
acquiring dual citizenship but, in practical terms, it would not very much matter
since the predominating factor would ordinarily be where they are reared.
137. Secondly, the Constitution now provides that the wife of a citizen of
Trinidad and Tobago who is not herself a citizen may by right, on application,
be registered as a citizen provided she renounces any other citizenship she may
hold. But the husband of a citizen of Trinidad and Tobago who is not himself
a citizen enjoys no such right. He would have to qualify and apply for naturali-
sation which could be refused. This is discriminatory. It has been argued that
adventurers seeking a swift method of acquiring citizenship of Trinidad and
Tobago and the right which it carries to work and live here might contract a
marriage with a citizen merely to achieve that end. The likelihood of this is
insufficient to justify the discrimination. Accordingly we recommend that the
husband of a citizen of Trinidad and Tobago who is not himself a citizen should
be entitled to be registered as a citizen of this country provided he renounces
his other citizenship.
V-THE HEAD OF STATE
Monarchy or Republic
138. There was almost unanimous agreement among those who spoke and
wrote to us that the Monarchy with the British Sovereign as Head of State should
be replaced by a Republic with an elected President as Head of State. All the
political parties who came before us advocated this change, and so did the
Chambers of Industry and Commerce, the Trade Unions, the Professional Groups
and the Women's Groups. We are ourselves convinced that the time has come
for such a change. It is no more than an expression of the fact that independence
must involve the creation of indigenous symbols of nationhood. Among young
people in particular the British Sovereign has no symbolic meaning. The thrust
since Independence has been towards the discovery of a new identity which
involves leaving behind the colonial heritage of subjection, imitation and external
dependence. The oath which the Governor-General now takes on assuming office
brings the problem sharply into focus. He swears to be faithful and bear true
allegiance to Her Majesty the Queen. To most ears this is anachronistic. His oath
quite obviously should be faithfully to serve the people of Trinidad and Tobago
and to defend and uphold its Constitution. We recommend therefore that Trinidad
and Tobago should cease to be a Monarchy and should become a Republic with
an elected President as Head of State.
139. It was clear from our consultations that the overwhelming majority of
people now understand that a change to a republican system would not involve
any change in the political culture. The old fears that republicanism was synony-
mous with licence without law, arbitrary action by state authorities without
redress and change of government by revolution have largely disappeared. It is
now realized that France, India and the United States of America, to quote but
three examples, are all republics which strive to preserve the values of a multi-
party democracy and the rule of law. Neither the establishment of a republican
system nor the retention of a monarchical form can of itself ensure that Trinidad
and Tobago will preserve and further develop the values of a democratic society.
The change should help to dramatise the fact that the people alone are responsible
for their destiny and that the responsibility for the choices they make cannot
be shifted elsewhere.
140. It must also be borne in mind that the change to the republican system
need not mean the cutting off of all association with the United Kingdom. We
recommend in keeping with the unanimous wish of all who addressed us that
Trinidad and Tobago should remain within the Commonwealth. In this way we
shall retain a symbolic link with the British Sovereign as Head of the Common-
wealth. Commonwealth membership seems useful for a number of reasons. There
are economic benefits from trading arrangements though these may decrease with
the progressive integration of the United Kingdom in the European Economic
Community and the integration of Trinidad and Tobago in the Caribbean Com-
munity. Also, every member of the Commonwealth has had a significant historical
association with the United Kingdom which is reflected in its administrative and
constitutional organisation. Membership thus affords an opportunity for an ex-
change of experience which must be of advantage in charting our own course. As
well, the Commonwealth is a multiracial organisation largely composed of Third
World countries. Membership presents an opportunity for concerted action in
influencing the policies of developed members in a direction more beneficial to
the developing countries. At the same time, there are no burdensome obligations
attaching to membership.
The Office of President
141. Having decided that there should be a President as Head of State, the
issue arose as to whether the President should be both Head of State and Head
of Government as in the United States of America. There are powerful arguments
for uniting the two offices. Most people would agree that a Head of State in
Trinidad and Tobago is never as fully occupied as he might be, so that there
would no doubt be substantial savings if the offices were combined. There are
also advantages in combining the appearance with the reality of power, thus
clearly identifying the seat of responsibility. Almost all the member; of the
Organisation of American States to which we belong have republican systems in
which the President is Head of State and Head of Government. Trinidad and
Tobago itself has had a long tradition of an all-powerful executive-the colonial
Governor. Even today many educated and intelligent persons still think of taking
their complaints to the Governor-General although, quite clearly under the existing
Constitution. he cannot act in any significant area except in accordance with the
advice of the Prime Minister.
142. Very few people however supported that point of view. The over-
whelming majority advocated a largely ceremonial Head of State who would
have some powers in the area of appointment to offices of a national character
and be a symbol of national unity. The desire was to find a person above the
clash of race and class and ideology which makes up politics. If the President
were to be both Head of State and Head of Government he would have to be
elected by all the people. There would have to be a political campaign in the
course of which charges might be made which could cause such bitterness that
the successful candidate, even if he won overwhelmingly, might very well be less
effective as a symbol of national unity. There are also dangers in having a
political personage as a national symbol. The events in the United States of
America centering around the Watergate affair illustrates this clearly. The office
of President there has suffered loss of prestige by reason of the charges levelled
against its holder.
143. We recommend therefore that there should be a President as Head of
State and a separate Head of Government who shall be called the Prime Minister
as he is now. The propo ed arrangement will resemble generally the Governor-
General/Prime Minister relationship with which we moved into independence.
This should make the change easier to implement.
Election of the President
144. Once the two offices are being kept separate, it will not be necessary
to elect the President by direct vote of the people since he will not be exercising
general control of the government. Yet, very clearly, he should be a person
highly regarded in the society and commanding widespread support.
145. One po sible method of appointment was nomination by the Head of
Government after consultation with the leaders of parties in the National Assembly
not forming part of the Government. If consultation was genuine and a consensus
reached, the successful candidate should in the normal course meet the criteria
we have set for the President. But we rejected this method on two grounds. The
experience of the past six years indicates that consultation does not really work.
The concept is impossible to define. Procedures can be prescribed and followed
to the letter while yet the process can be deprived of all meaning. Genuine
consultation requires an attitude of mind which political opponents may find
difficult to cultivate in the absence of a long tradition.
146. Another possibility would be to have the President elected by a simple
majority in the National Assembly. Since the Head of Government would normally
command a majority in that body, this method of election would for all practical
purposes be tantamount to having the Head of State nominated by the Head
of Government. This could very well weaken the President's effectiveness as a
national symbol and lead to doubts as to his impartiality in his role as an
authority appointing persons to offices of a national character.
147. Yet another possibility which seemed most attractive was that of having
the President elected by a two-thirds majority of the National Assembly. We feel
certain that under the electoral system we have proposed it is most unlikely (in
the absence of a boycott or widespread election fraud) that any party would win
two-thirds of all the seats. So a successful candidate would have to win the
support of at least two groups in the Assembly which should be convincing
demonstration both of the regard in which he is held and the breadth of his
support. In effect, the leaders of groups in the Assembly would have to bargain
to reach agreement and this would mean consultation. It would however be a
different sort of consultation from that envisaged in the first suggestion since the
opposition groups could block the process if they thought the majority party
unreasonable. If we could assume overriding goodwill on the part of all the
participants, this method would be most likely to produce the best candidate.
148. However, we could not dismiss the possibility that the government or
the opposition could frustrate the process of election completely by either of
them refusing to give way where it would be reasonable to do so. The dictates
of political strategy may take precedence over the clear demands of national
interest. It is of course possible to make such shortsightedness very expensive by
placing a punitive sanction on failure to compromise. For instance, it could be
provided that in the event of the National Assembly failing to elect a President
by a two-thirds majority it should be dissolved and new elections held. The likeli-
hood that either government or opposition would wish to run such a risk seems
very small, but it cannot be totally dismissed. Should it occur, the period of
political turmoil which inevitably accompanies any election would be unacceptably
prolonged. The people should not be asked to run that risk.
149. The remaining method was election by a college of electors other than
the National Assembly. There is precedent for this in the Constitution of India.
The President is elected by an electoral college composed of the elected members
of the Union Parliament and the Parliaments of the States. A formula has been
devised giving different weights to the votes of the several members so that
in effect the vote cast by each is roughly proportionate to the number of people
he notionally represents. We have no states in Trinidad and Tobago, but there
are municipal and borough councils as well as county councils to which the people
elect their representatives. The analogy cannot be pressed too far, but a meeting
of the elected members of the National Assembly, the City and Borough Councils
and the County Councils does comprise as completely as is possible under our
system the representatives chosen by the people. If the President is elected by
such a body he can then be said to have been elected, even though indirectly, by
the people of Trinidad and Tobago. We have recommended, as will be discussed
later, that elections including local government elections should be conducted
under the mixed system of proportional representation. This would mean that
party strength throughout Trinidad and Tobago should be more accurately re-
flected in this electoral college and that the controlling majority there should not
be as foregone a conclusion as the government majority in the National Assembly.
150. Accordingly we recommend that the President be elected by an electoral
college composed of the members of the National Assembly and the members
of the City, Borough and County Councils sitting all together and voting by
secret ballot.
151. We have considered the question of weighting the votes, as is done in
India, on the basis of the number of electors they notionally represent. It might
be argued that this is necessary because of the wide disparities that exist in some
cases in the size of the electorate as between one ward and another. On the
other hand we are concerned to avoid introducing any complex system of weighting
that cannot be readily understood and applied. In any case, the absence of weight-
ing as between councillors will tend to give an advantage to the local representa-
tives of the less populous rural areas and we do not think this is a bad thing,
having regard to the pre-eminence which urban areas customarily enjoy.
152. It seemed necessary to us however to establish some parity between
the votes of all the members of the National Assembly and the votes of all the
local government representatives. If our recommendations on proportional repre-
sentation at the national and local government levels are implemented, there
will be 72 members of Parliament and some 149 city, municipal and county
councillors. To give each member of both groups the same vote will mean that
the members of the National Assembly as a whole will have too little say in
the choosing not only of the President, but of the Vice-President who after all
is the person who will ordinarily preside as Speaker over their meetings. In
order to maintain a proper balance between the two groups of elected repre-
sentatives, we have devised and propose the following simple formula. Each
member of Parliament will have a number of votes equal to the total number of
city, municipal and county councillors, and each city, municipal and county
councillor will have a number of votes equal to the total number of members of
Parliament. The result will be that the total number of votes available to members
of Parliament will be the same as the total number of votes available to
councillors.
153. In order to encourage some effort at arriving at a consensus which should
help significantly in strengthening the authority of the President, we recommend
that he should be elected by a two-thirds majority of the electoral college. If
no candidate achieves that majority, then eventually a simple majority must
suffice. The procedure we recommend is as follows:
Where more than two candidates are nominated for the office and no
candidate achieves a two-thirds majority on the first ballot the candidate
receiving the least number of votes shall be eliminated and further ballots
held until the number of candidates is reduced to two or one candidate
achieves the two-thirds majority before the list is so reduced. If upon
the list being reduced to two neither candidate achieves a two-thirds
majority on the first two ballots, then the candidate securing a simple
majority on the third ballot will be declared elected as President.
The Office of Vice-President
154. We recommend that there should be a Vice-President. He shall act for
the President when the latter is unable to perform the duties of that office but,
as shall be discussed in the Chapter on Parliament, his principal function will
be to preside over the National Assembly as its Speaker. We recommend that
the Vice-President be elected at the same session of the Electoral College and in
the same manner as the President. The fact that two offices are to be filled at
the same session should increase the likelihood of inter-party bargaining and
consequently of reaching a consensus as to the candidates.
Qualifications for the Offices of
President and Vice-President
155. Both the President and Vice-President should be citizens of Trinidad
and Tobago of the age of 35 years or upwards. Both should have been ordinarily
resident in Trinidad and Tobago for the period of 5 years immediately preceding
their nomination for the office.
Nominations for the Offices of
President and Vice-President
156. Nominations for election to those offices must be filed with the Clerk
of the National Assembly at least 14 days before the date fixed for the election
and each nomination must be signed by at least 12 members of the National
Assembly. As will be discussed in the Chapter on Parliament, we have recom-
mended an Assembly of 72 members so that theoretically there could be six
candidates. In fact we think it unlikely that there would be more than three
as in the normal course of events the Assembly would be composed of two
major groups each of which could nominate a candidate. The number of members
remaining over is not likely in combination to be able to nominate more than
one other candidate.
Term of Office of the President
and the Vice-President
157. We recommend that the President should hold office for five years and
while in office should hold no other office of emolument either in the public
sector or elsewhere. We considered whether or not he should be eligible for
re-election. There is an advantage in providing compulsorily for the rotation of
prestigious posts. It brings fresh minds to bear on old problems, permits useful
changes of style in the performance of functions and helps to spread more equitably
the considerable privileges of high office. But since it is our hope that the
President will be usually chosen by agreement among all major groups, we feel
that a candidate who has carried out his duties with such distinction that the
parties are again prepared to vote for him should not be prevented from continuing
in office. There may be real difficulty in agreeing upon a successor. The duties
are largely ceremonial and there is no need to fear a growing authoritarianism
resulting from prolonged stay in office.
158. The Vicc-Prcsident also should hold no olfice of emolument (other than
that of Speaker of the National Assembly) in the public sector or elsewhere.
Like the President, he should hold office for five years and be eligible for
re-election. The same arguments which make it reasonable to allow this in the
case of the President are applicable in the case of the Vice-President. He must
not be a member of the National Assembly. If he is a member at the date of
his election he must immediately resign.
Functions of the President
159. All executive authority shall be vested in the President to be exercised
by him directly or through persons subordinate to him in accordance with the
Constitution. The Supreme Command of the Defence Forces shall also be vested
in him. The power to pardon and grant clemency which will be discussed in
detail later will be exercised in his name. All bills passed by the National
Assembly will require his assent before they become law. In this regard we
recommend that his assent to Bills should not be completely automatic. We
propose that he should have the right to refer a bill back once to the National
Assembly for recon ideration stating his reasons for so doing. Should the National
Assembly pass the measure after reconsideration, then the President will be
bound to give his assent. We do not contemplate that this is a power which will
be used at all frequently. The informal contacts between President and Prime
Minister should be such as to ensure that the President's views are taken into
account in arriving at all major decisions. Where, however, there is a disagreement
on a matter about which the President feels deeply enough, it is our view that
he should have this power of referral to alert the nation to the dangers of the
proposed legislation as he sees it.
160. We recommend that the President should play his principal role in the
appointment of persons to important offices of State. Acting in his own discretion
after consultation with the Prime Minister, the Leader of the Opposition and
such other persons and organizations as he thinks fit he will appoint-
(i) the Chief Justice
(ii) the Chairman and members of the Service Commissions
(iii) the Attorney-General
(iv) the Chairman of the Boundaries Commission
(v) the Chairman and one member of the Committee exercising a
regulatory function in regard to Radio and Television.
It is hoped that this method of appointment will as far as is practicable
remove these offices from the area of direct political patronage.
161. In the case of the Auditor-General, the Elections Commissioner and the
Ombudsman, we recommend that the President acting again in his own discretion
after consulting such persons as he thinks fit should nominate a candidate for
the office and that the candidate should be appointed if approved by a three-fifths
majority of all the members of the National Assembly after scrutiny by the
appropriate Parliamentary Committee. These three officials can all be described
as essentially parliamentary officials, so the National Assembly should have a
significant voice in their appointment. There is the possibility of course that there
may be deadlock over an appointment. The consequences of such a deadlock
would not be as serious as that over the election of a President and Vice-President.
The experience and qualifications which will obviously be needed for these
posts must so reduce the number of possible appointees that agreement should
be comparatively simple.
Removal from the Office of President
162. We thought it necessary to make provision for removing the President
from office although it is expected that this eventuality will never arise. We
recommend that he be removed if-
(i) he wilfully violates any provision of the Constitution, or
(ii) he behaves in such a way as to bring the office into contempt or
ridicule, or
(iii) he is unable by reason of physical or mental infirmity to perform
the functions of his office.
163. The recommended procedure for his removal as set out in the attached
draft Constitution is designed basically to make it unlikely that the procedure
will be set in motion unless there is near certainty of the likelihood of its
succeeding.
Resignation from the Office of President
164. The President may resign by letter addressed to the National Assembly
and delivered to the Clerk of the National Assembly. On his removal, resignation
or death while in office, the Vice-President shall act as President until a new
President is elected which should be within three months of the removal,
resignation or death of the outgoing President. A person so elected shall hold
office for the unexpired portion of the term only, subject of course to re-election.
Removal or Resignation from the
Office of Vice-President
165. The same provisions should apply in relation to the removal or resigna-
tion of the Vice-President as in the case of the President. On his removal,
resignation or death while in office, the Deputy Speaker shall act as Speaker until
a new Vice-President is elected which should be within three months of the
removal, re ignation or death of the outgoing Vice-President. A person so
elected shall hold office for the unexpired portion of the term only, subject of
course to re-election.
Immunity of the President
166. The President should not be answerable to any court for the manner
in which he exercises any of his powers or performs any of his duties as
President. Except with the prior consent of the Attorney-General, no criminal
proceedings whatsoever may be brought or continued against him in any court
while he holds office nor should any process for his arrest or imprisonment be
issued from any court during that period. He may however be sued in civil
proceedings after proper notice has been served upon him setting out the nature
of the claim and asking for its settlement. While we agree that the President
should be to some degree protected from court process we do not think that he
should be placed above the law as far as his actions out of office are concerned.
The Vice-President shall enjoy similar immunity while he acts as President.
VI PARLIAMENT
167. From our consultation with the people throughout the country it was
clear that they are dissatisfied wih the way that Parliament has worked since
Independence. Their expectation that it would act as a check on the Executive
has been disappointed. In a sense this expectation was misguided. As has already
been shown in the Introduction, the Executive almost always controls Parliament
in any system of government based on the Westminster model with first-past-the-
post elections. It does so through the party majority and the tightness of party
discipline.
168. This does not mean that Parliament must necessarily be ineffective. It
still remains the place where all important issues of policy are intended to be
discussed. Bills are expected to be debated there before becoming law. The
resulting publicity can inform and arouse public opinion and supply the material
on which to base a judgment as to the quality of the government. But the tendency
has been to discourage discussion of serious matters of policy. Members have
complained with justification that they have often received copies of bills so
late that they could hardly be expected to make considered contributions to the
debate. The tables set out in the Introduction established how frequently Bills
have been rushed through all their stages at a single sitting. All of this creates
the impression that the whole procedure is regarded as no more than an
inconvenient ritual.
169. The institution has also had an unhappy history. Trinidad and Tobago
entered Independence with a Leader of the Opposition who spent most of his
time in England on his teaching duties and little" in Trinidad on his parliamentary
responsibilities. But for the generosity of the Speaker in granting leave he
would have forfeited his seat for non-attendance at meetings. This could not but
contribute to a loss of prestige by the Parliament. His absences led to a
fragmentation of the Opposition which further reduced its effectiveness. From
the opening session of the Parliament elected in 1966 until mid-1968 the
Opposition remained silent although attending meetings with just sufficient
frequency to avoid disqualification. This was their form of protest against the
use of voting machines introduced for the general election in 1966. Correlatively,
the Prime Minister's attendances during the period 1966-71 became less frequent.
In a sense it could be said that nothing of importance was ever expected to
happen which would make his presence vital. Members submitted 133 questions
for answer during that period. Only 39 of these were entertained by the Speaker
of which 35 were answered.
170. The boycott of the general election in 1971 which led to the PNM
winning every seat seemed to be the final blow. But there was more to come.
In June 1972 an Opposition appeared in the form of two PNM members who
had ceased to belong to the party. One of them hastily formed a new political
party, the United Progressive Party (UPP), thus qualifying for appointment as
Leader of the Opposition with all the powers belonging to the office including
that of appointing four persons to the Senate and removing any or all of them
at will. The Leader of the Opposition now sits in the House of Representatives
leading himself as the only member of his party in the House, the other ex-PNM
member having announced that he was sitting as an independent. If the intention
had been deliberately to parody the British institution we had set out to copy,
the result could hardly have been more successful.
171. We agree with the widespread demand that Parliament should be given
a central role in the management of the affairs of Trinidad and Tobago. This is
the basic principle which has guided our recommendations. We accept the princi-
ple that the Government of the day must have the necessary majority in
Parliament to implement its programme. But this is by no means inconsistent
with devising procedures to ensure that back benchers and opposition members
have an opportunity publicly to play a greater role in the shaping of policy.
172. In dealing with the subject of Parliament we shall do so under the
following heads-
(1) Form and Composition
(2) System of election
(3) Method of voting
(4) Qualifications for voting and for being elected
(5) Integrity in public office
(6) Resignation and expulsion from party membership
(7) Conduct of Elections
(8) Conduct of business
(9) Prorogation and Dissolution
Form and Composition
173. The present Constitution provides for a Parliament of two Houses a
wholly elected House of Representatives and a Senate of 24 members all appointed
by the Governor-General as follows -
13 in accordance with the advice of the Prime Minister;
4 in accordance with the advice of the Leader of the Opposition; and
7 in accordance with the advice of the Prime Minister after the Prime
Minister has consulted those religious, economic or social bodies or
associations from which the Prime Minister considers that such Senators
should be appointed.
174. As regards these seven Senators, the practice has been that the Prime
Minister asks each of such groups as he thinks proper to submit to him two
names from which he selects the persons whom he advises the Governor-General
to appoint. These seven Senators are usually referred to as "independent" since
they are not bound by party loyalties and are free on all issues to exercise an
independent judgment. Once all the government Senators are present and vote as
the party expects, the Government is always assured of the simple majority in the
Senate needed to pass ordinary legislation. But certain measures require a special
majority in the Senate before they can be passed into law.
175. A bill which infringes the human rights and fundamental freedoms set
out in section 1 of the Constitution must have the votes of three-fifths of all the
members of the Senate to pass it into law. A bill amending an entrenched clause
of the Constitution must have the votes of two-thirds of all the members of the
Senate. Even if a government does control the prescribed majority in the House
of Representatives to pass any such bill into law it can be blocked in the Senate
unless in addition to all the government Senators at least two other Senators vote
for it in the case of a bill infringing human rights and fundamental freedoms, or
three in the case of a bill amending an entrenched clause of the Constitution.
Assuming therefore that the opposition Senators were resisting any such measure,
the votes of less than half of the independent Senators would be decisive on
whether or not the measure would pass. The expectation no doubt was that, as
citizens of wisdom and experience taking the broad viewpoint of national interest
rather than the narrow approach of partisan politics, they could be considered
proper judges as to whether a significant change in a constitutional matter was
desirable or not.
176. Throughout the history of the Senate there has been one occasion only-
and that was while this report was being drafted-when the Senate failed to pass
with little if any change all government measures laid before it. On that occasion
four government Senators were absent so that the Government was in a minority.
It may well be that in voting as they generally did the Senators were in fact
exercising their independent judgment. But the prevailing view is that the Senate
is a rubber stamp which has served no useful purpose whatever. Despite this,
there was a feeling, equally widespread, that a differently constituted Senate might
be effective. More people and groups favoured its retention in some altered form
rather than its total abolition.
177. Trinidad and Tobago has had throughout most of its history a nominated
system of government. Prior to 1925 no elected person sat in the Legislative
Council. In that year seven elected members joined the Council, but they were a
minority among the twelve senior officials and the six unofficial nominated by
the Governor. The Governor was himself President of the Council with an original
as well as a casting vote. By 1946 the elected members were equal to the nom-
inated members nine of each, with three of the nominated members being
officials and six unofficial the Governor retaining his casting vote. Elected
members achieved a majority in the Legislative Council only in 1950. There is
therefore a strong tradition of government by nomination, a fear that the elected
person will not be as educated or as intelligent as the nominated member and
consequently will not be as capable of making decisions for the country.
178. When constitution reform was being considered in 1945-1946, Dr.
Patrick Solomon put the case for a single Chamber fully elected on the basis of
adult suffrage. His view was that the nominated system could not be justified on
any ground whatever, but he was a minority of one. It is of significance however
that neither the majority report nor the other minority report recommended the
creation of a senate. The nominated members were simply to be a minority in a
single Chamber. Whereas the tradition of the nominated member is deeply rooted,
the idea that they should be transferred to a senate was not vigorously advocated
by any important political figure until Dr. Eric Williams did so in 1955. Until
then, radical thinking had worked towards the elimination of the nominated ele-
ment from the single Chamber and towards its development into a fully elected
body.
179. In his book on "The Unreformed Senate of Canada" Professor Mackay
quotes a prominent English historian as saying that the bicameral system "owes
its existence in different places to widely differing causes... the bicameral
systems of the world have, in fact, little in common except the number two."
Second Chambers can however perform necessary functions in certain systems of
government. In federal states a second Chamber is perhaps the only institution in
which the states forming the federation can have their interests represented as
distinct from the interests of the people across the country which are represented
in the other Chamber. This is the position for example in the United States of
America where the equality of all the states is reflected in the fact that they each
elect two senators to the Senate. In India and in the German Federal Republic
the Senate is composed of members elected by the Legislatures of the states
which form the Union. In countries like France and Italy where the form of
Government is not federal, there are nonetheless marked regional identities and
loyalties and the second Chamber is structured to represent these interests. It
has never been suggested that there is need for the performance of any such
function in Trinidad and Tobago and we are satisfied that a senate is not needed
for any such purpose.
180. In 1955 Dr. Williams urged the creation of a second Chamber on three
grounds which we shall now examine.
(1) The nominated element would be removed from the elected Cham-
ber while at the same time the interests which they represented
would be assured of participation in the legislative process.
The situation today is very different from what it was in 1955. It may have
been useful then to allay the fears of these interests, but times have moved on.
The multinational corporations which control such of our resources as we do
not, require no representatives in a senate to make their viewpoints understood
in the corridors of power. To have them may well be an embarrassment. The in-
terests themselves have changed. Government now has a majority holding in
sugar. Its investment in commerce and industry is expanding and it has a signifi-
cant stake in the oil industry. The type of representation envisaged in 1955 is
now no longer relevant.
(2) The nominated elements had made a useful contribution in the single
Chamber and Trinidad and Tobago could continue to benefit from
them, but this could best be done if they were placed in a second
Chamber where they would be in a position to warn and comfort
but not command.
While we do not deny the talent and ability of the type of person who is usually
nominated, we are convinced that the electoral process has thrown up persons of
no less talent and ability. As education spreads and the electorate becomes more
sophisticated, voters realise that intelligence and training are needed to cope with
the complicated problems which constantly arise. In the electoral system we have
recommended, parties will put up lists from which they will be able to select mem-
bers to sit in the National Assembly in proportion to the number of votes cast for
their candidates throughout the country. In this way persons can be elected
to Parliament without having to go through a constituency battle. Capable people
who do not care for the rough and tumble of a general election can still make their
talents available in this way. While they will be subject to party discipline, they
will be no worse off than Senators today whose appointments can be revoked for
no cause stated.
(3) The Senate could be given delaying powers which would be a
necessary check and balance if, as was always possible, one party
should sweep the polls and find itself without effective opposition in
the elected House.
In fact the Senate devised in 1961 shortly before Independence and its modifica-
tion in the present Constitution were so structured that, barring the absence of
government Senators or a revolt among them, the Government would always have
a majority where ordinary legislation was concerned. A check was only possible
on basic constitutional issues and on issues concerning human rights and funda-
mental freedoms.
181. We see no justification for the creation of a nominated second Chamber
as a check on a Chamber of elected representatives. The electoral system should be
such that no party should be able to secure such an overwhelming majority in the
elected Chamber that it can amend entrenched provisions unless it has won an
equally overwhelming majority of the votes cast at the elections. This aspect of
the matter will be discussed in more detail under the heading System of Election.
With the present first-past-the-post system it is possible for a party to win all the
seats in an elected chamber by winning by a bare majority in each constituency.
This might be less than 50% of the votes cast if there were more than two candi-
dates in each constituency. In these circumstances it would seem iniquitous that
such a party should be free to pass whatever laws it wished completely without
check when in fact it did not represent 50% of the people. But the answer does
not lie in providing a nominated second chamber as a check. It lies rather in re-
forming the electoral system to make it more truly representational and in building
within the system adequate checks against the possibility of overwhelming power
in the legislature which is not based on overwhelming support by the electorate as
a whole. This is the basic argument of principle that we advance against a number
of suggestions for a nominated senate with varying proportions of government
senators, independent senators and opposition senators.
182. To meet the argument that the present Senate was a rubber stamp the
more usual reconstruction envisaged a senate in which the government senators
would be equal in number to the opposition senators and the independent senators.
To ensure that the Government had no patent opportunity to influence the choice
of independent senators by their groups and organizations these bodies would be
allowed to advise the President directly as to who should be nominated. Under
such an arrangement the Government would always need the vote of at least one
independent senator to get any measure through the Parliament. This seems to us
to be placing far too much power in the hands of persons who have received no
mandate from the electorate and are unlikely to have ever put out a political mani-
festo. None of them would be accountable to any one group save the group which
appointed him. Even so, the stance any of them adopts on any particular issue
would not necessarily reflect the views of the group he has been selected to
represent.
183. Some of the variants gave the government representatives one-third of the
seats in the Senate and the opposition and independent senators combined two-
thirds. Such a distribution would only aggravate a situation which we consider
intolerable in principle. A nominated element should not be allowed to thwart the
will of the elected representatives of the people. There will be need at all times
for the people to look closely at what their representatives propose to do. As will
be seen later, we provide for such an opportunity by recommending that all bills
should be examined by a parliamentary committee before they are debated. The
public will have the right to be heard in the course of that examination before
the measure is actually passed. There are other objections also, based on practical
considerations, which we shall discuss when analysing another proposal for a
different form of senate.
184. To legitimise the role of the Senate as a check on the elected Chamber
two groups suggested that its members should be elected. One suggestion was that
senators should be elected on a county basis and that the candidates offering
themselves for election should be members of no political party. The expectation
no doubt is that a body will be created free of political partisanship and yet
supported by popular mandate to pass judgment upon the measures of the other
Chamber. The idea has the merit of novelty, but we are satisfied it is undesirable
and unworkable. It is undesirable because party politics are essential for the
efficient working of the type of democracy we propose and parties should not be
kept out of any contest in which candidates are elected to serve in institutions per-
forming purely political functions. It would be unworkable because whether or not
candidates are members of political parties, once there is an election the parties
would inevitably support one candidate or the other. In the final analysis, such
covert political assistance would be more dangerous than open partisanship.
185. The other proposal was for constituting a large senate consisting of
perhaps 250-500 persons, all selected by groups and organizations and responsible
to them. The groups and organizations would pay their senators and recall them
if they considered that the senators did not adequately or faithfully represent their
interests. This body would serve as the conscience of the nation. All bills would be
debated for the first time, on the issue of the principles underlying them, at a joint
session of the popularly elected Chamber and the Senate. If the Senate voted
against the bill the Government could still press on and pass it into law if it
wished, but it would have been alerted that it might be doing so against the
weight of public opinion. The Senate would institutionalize the participation of
groups in politics outside the normal channels of party activity. It would provide
parliamentary cover for criticisms which otherwise might not be voiced for fear of
victimization or of a possible action for defamation. This body would also be
vested with certain powers unconnected with its role in the legislative process.
These would include the making of appointments to certain offices and the
regulation of the media.
186. Such a senate would not offend the basic principle we have propounded
that persons not elected by the people should not have the power to block
measures proposed by elected representatives. It would have no power to block.
It could merely warn.
187. In practical terms, however, it would be a cumbersome body difficult to
set up and difficult to manage when set up. We were not given details as to how
the groups which would have the right to elect representatives would be selected.
Presumably this task would have to be the subject of a special study by some
authority which would prescribe guidelines and name the "founder members" so
to speak. Thereafter the senate could perhaps regulate its membership in confor-
mity with the guidelines so prescribed.
188. The proponents of the proposal conceded that if all the members of their
senate attended regularly it would be a difficult body in which to conduct business.
They expected that members would attend only when some measure particularly
touching their own group interest was being discussed. If this were so, then the
value of the institution as a guide to public opinion would be considerably reduced.
It might voice nothing more than a narrow sectarian view geared to self-interest.
189. We were also very doubtful whether any representative of an organisation
could speak for the organisation on issues outside of its special interest. Sports-
men, for example, may have a common view on the importance of providing
money to help send representative teams abroad. They are likely however to have
no view at all or be hopelessly split on the desirability of nationalizing banks in
Trinidad and Tobago, if such a measure was proposed. Their spokesman could
hardly be expected to put forward the sporting view on this issue.
190. The pattern in most organizations is that a few hardworking and interested
persons keep on being elected from year to year by the very small proportion of
persons who turn up at general meetings. Even hotly contested elections in trade
unions hardly attract a 25% poll. To say that a representative of such a group so
selected speaks for the group in any matter debated in a legislative assembly is
not to face the reality of the society in which we live.
191. Later in this Chapter under the heading "Conduct of Business" we shall
be discussing in detail the committee system which we recommend for the
National Assembly. Where legislation is proposed affecting any particular group,
it would be competent for that group to appear and testify before the appropriate
Committee of the National Assembly charged with examining the measure. Recent
history has shown that where people are sufficiently aroused they have been able
to stop a proposed measure even before it reaches Parliament. This was the case
with the Public Order Bill. Where an institution like the parliamentary Committee
is set up to receive and publicise and consider objections to measures it should be
much simpler for groups to participate actively in the legislative process.
192. The proposed macro-Senate is novel but impractical. Its philosophical
attraction lies in the concept of increased participation. We are satisfied that this
desirable aim is more likely to be achieved by the practical methods we have
proposed. Radical groups such as NJAC and URO can hardly be expected to look
upon a seat in the Senate as a proper platform for their views. We would be sur-
prised if the concept of a second Chamber not popularly elected fitted into their
ideology. On the other hand a system of elections which gave a genuine chance to
such groups to win a seat in an elected assembly should be an incentive to parti-
cipate. We shall mention this again in dealing with the system of elections we
propose. In the same manner the public examination of bills by committees will
provide an opportunity for pressure groups to make their impact felt on the
legislative process in as direct a manner as the macro-Senate could.
193. Three other functions usually ascribed to second Chambers need to be
considered.
(1) They can play a useful role in the examination and revision of bills
brought from the other Chamber.
The Senate here does to some extent perform this function. This was so
particularly during the period when the Attorney-General sat in the Senate. But
in our view this type of work can be done much better in committee before the
bill is debated. Points of difficulty can be raised with the parliamentary draftsman
and independent legal opinion may be sought, if needed.
(2) They can be used to initiate measures of a comparatively non-contro-
versial character which may pass the elected chamber more speedily
if put in proper shape before reaching there.
The Senate here is often used as the place to initiate bills for incorporating
various associations of a religious and charitable nature. When the Attorney-
General sat in the Senate, bills which dealt largely with law reform were introduced
there. Again, where the Minister charged with a particular subject sits in the
Senate, bills on that subject have been introduced there. The fact is that our
elected Chamber has not been overburdened with work and it matters little where
a bill originates. In any event, if Committees are set up to deal with specific areas
of legislation, it is expected that bills should be put in proper shape before they
come up for debate in the National Assembly.
(3) They provide a forum for full and frank discussion of large and
important questions.
The fact is that the Senate has not been such a forum. With a properly functioning
committee system it should be possible for committees to undertake in-depth
consideration of matters of national interest to provide the basis for policy-making.
This type of exercise should be far more useful to the society than a broad debate
in an assembly with little power.
194. It seems to us that there are no considerations of democratic principle, of
convenience or of tradition to justify the existence of a Senate, nominated or
elected. The history of the Senate over the past twelve years has not been
particularly distinguished. A few of the independent senators have made useful
contributions but there is little doubt that these contributions would have been
more effective had they been made in the House of Representatives.
195. Accordingly we recommend that the Senate should be abolished and that
the legislature should consist of a single Chamber called the National Assembly.
As all bills passed by the National Assembly will have to receive the President's
assent, Parliament would consist of the President and the National Assembly.
System of Election
196. At the very centre of recent political agitation has been the demand for
electoral reform. Among the political groups in opposition there was complete
unanimity in the call for replacement of voting machines by ballot boxes, reduction
of the voting age to 18 and proper delimitation of constituencies. There was also
widespread support for replacing the present system of first-past-the-post elections
with some form of proportional representation.
197. Under the present system the country is divided into constituencies each
of which elects a member to represent it. Any number of candidates may be nomi-
nated to contest each constituency. The candidate securing the highest number of
votes is declared the winner although where there are more than two candidates
the successful candidate may, and indeed often does, poll fewer votes than the
other candidates combined. This is the system to which we refer as first-past-the-
post. It is the system used in Great Britain and where Professor W.J.M. Mackenzie
has said of it that it is justified by "history rather than logic". The same can
accurately be said of it in Trinidad and Tobago since undoubtedly it is one of the
inheritances of our colonial past.
198. Because it has always been part of the British political system there has
not, until recently, been any serious consideration of its suitability for our condi-
tions. At the outset it should be mentioned that most countries with constitutions
working on the principle of a multiparty democracy do not use this system. The
minority who use it consists of the United Kingdom and most of its former colonies
and the United States of America.
199. The advantages of the first-past-the-post system are that voting and
counting are simple. It improves the chances of a one-party parliamentary majority
and favours a two-party system though it does not guarantee it. In Canada, for
example, there are four major parties-the Conservatives, the Liberals, the New
Democratic Party and the Social Credit Party. In Australia there are three the
Liberals, the Labour Party and the Country Party. The system certainly does not
prevent the formation of a multiplicity of parties as the experience of Trinidad
and Tobago amply illustrates.
200. It is as a system of democratic representation that it has its most serious
faults. As has already been mentioned, where there are three or more candidates
the winner may actually represent only a minority in the constituency. All the
electors who voted against him could justifiably feel that they were not represented
and that their votes had had no effect whatever on the result of the election. It is
possible for a party to win all the seats in Parliament by winning a bare majority
in each constituency and where more than two parties contest all constituencies
this result is possible even without an overall majority of the votes cast. Such ex-
treme cases it is true seldom happen, but that is a matter of chance-a factor
which should not be so vital in a matter as important as proper representation in a
democracy. Even though the extreme cases do not often occur, there is a general
tendency for the system to give the party winning the larger percentage of votes an
even larger percentage of seats.
201. Table 3 sets out figures for general elections in Trinidad and Tobago and
in Grenada.
Table 3
Votes
Votes % Votes Seats % Seats per
Seat
Trinidad
1956 PNM 105,153 39 13 54.2 8,089
PDP 55,148 20 5 20.8 11,030
Butler 31,071 11 2 8.3 15,535
TLP.NDP 13,692 5 2 8.3 6,846
POPPG 14,019 5 0 0.0 -
+ Independents 40,523 15 2 8.3
1961 PNM 190,003 57 20 66.7 9,500
DLP 138,910 41.7 10 33.3 13,891
SSpoilt ballots accounted for 2.5% of the votes cast and the remaining 2.5% were
divided among the Caribbean National Labour Party, the West Indian Independence
Party and the Caribbean People's Democratic Party, which won no seats.
SThe remaining 1.3% of the votes were cast for the African National Congress, the
Butler Party and three Independents.
Votes
Votes % Votes Seats % Seats per
Seat
1966 PNM 158,573 52.4 24 66.7 6,608
DLP 102.792 34.0 12 33.3 8,566
Liberals 26,870 8.9 0 0.0 -
Workers and
Farmers 10,484 3.46 0 0.0
GRENADA
1971
Grenada United
Labour Party 20,005 58.56 13 86.67 1,539
Grenada National
Party 14,155 41.44 2 13.33 7,077
202. The figures illustrate the trend mentioned above of giving the winning
party an advantage in terms of seats in the Parliament compared with votes at the
polls. Except for one instance in 1956, the winning party needed fewer votes per
seat won than any other party. In three instances-the POPPG in 1956, and the
Liberals and the Workers and Farmers in 1966-a substantial number of votes
failed to elect any candidate. The element of chance is shown further by comparing
the results of the POPPG and the TLP-NDP in 1956. The POPPG polled more
votes but won no seats whereas the TLP-NDP won two seats. A party which
concentrated support in one or two areas does better than a party with stronger
overall support but more widely dispersed.
203. But the first-past-the-post system can also result in a party which has
won the majority of the votes finding itself in the role of opposition rather than of
government. An example of this was the last St. Vincent general election where
the figures were as follows -
Table 4
Votes
Votes % Votes Seats % Seats per
Seat
St. Vincent
Labour Party 16.108 50,43 6 46.15 2,685
People's
Political Party 14,507 45.41 6 46.15 2,418
Independent 1,330 4.16 1 7.7 1,330
In that case the concentration of support for the independent in one seat secured
it for him with about half the votes which earned a seat for the other parties. The
independent later joined in a coalition with the People's Political Party and the
result was that that coalition which together had won 15,837 votes and of which
he became the political head was able to form the Government although the votes
it received were fewer than the 16,108 votes cast for the St. Vincent Labour Party.
204. The experience of first-past-the-post in Britain is much the same. The
table quoted below of election results from 1955 to 1970 is taken from Whittaker's
Almanac and the Official Handbook of Britain.
Table 5
ril 1
our Liberal
Seats Votes Seats
% % %
43.9 2.7 0.9
40.9 5.9 0.9
50.3 i 11.2 1.4
57.6 8.6 1.9
45.6 7.4 0.9
Others
Votes Seats
% %
1.3 0.6
1.0 0.3
1.4 0.2
1.6 i 0.4
Conservative
Yeai of
Election
1955
1959
1964
1966
1970
Votes
%
49.7
49.4
43.3
41.9
46.4
Lab
Votes
%
46.3
43.7
44.1
47.9
43.2
Seats
%
54.6
57.9
48.1
40.1
52.4
--
- ---5--
Efforts at reforming the system in England have failed largely because it suits
the strongest parties. But the resurgence of the Liberal Party, association with
the European Community many of whose members use some form of proportional
system and the fact that the British Government itself prescribed proportional
representation for Northern Ireland have all made this type of electoral reform
topical in Britain today.
205. We do not dispute that it is not enough to establish in the abstract that
the disadvantages of the first-past-the-post system outweigh its advantages. The
issue must be judged in the circumstances which exist in Trinidad and Tobago. The
distortion in favour of the majority illustrated in Table 3 above is of particular
significance here because, as has been mentioned, the society is multiracial and
the two major political parties have their mass base in the two major ethnic groups.
Smaller parties which do not have this appeal find survival difficult since their
support is usually widely scattered rather than concentrated in pockets. The result
is that the system tends to harden the pattern of racial voting.
206. We have so far emphasised the desirability of devising an electoral
system which will reflect the political divisions more accurately than does the
present system. However this is not the only purpose of an election. The represen-
tative body must be able to produce and sustain a government able to govern the
country. A frequent criticism of proportional representation is that it tends to pro-
duce coalitions which are inevitably weak and fail to give the positive leadership
which governments should give, particularly in underdeveloped countries. But, in
our view and in the experience of many, coalitions are not inevitably weak. They
are often the answer in moments of crisis when national survival requires national
solidarity. Further, the fact that a Government has an overwhelming majority in
Parliament does not ensure that it will provide strong government. If it does not
in fact enjoy the support of a substantial majority of the people it may well create
crisis conditions if it uses its parliamentary majority to push through policies not
basically agreeable to them. Government and people can thus become alienated
and the people may as a result resort to extra-constitutional methods of protest.
207. Having regard to our concern to find a system which would meet the twin
needs of representation and efficiency, we recommend an electoral system in which
the principles of proportional representation and the first-past-the-post system are
mixed. It is similar in part to that now used in the Federal Republic of Germany
and will work as follows-
a) The National Assembly will consist of 72 members twice the
present number.
b) Half of these will be elected as at present (with one significant
difference mentioned in (c) below), Trinidad and Tobago being
divided into 36 constituencies each electing a single member. This
member is referred to in our draft Constitution as the "constituency
member".
c) Where only one candidate is properly nominated for a constituency
he will not as at present be returned unopposed. A poll will still be
held so that voters will have an opportunity by voting for him to
vote for the party to which he belongs.
d) The remaining 36 members will be elected by a list system of pro-
portional representation and are referred to as "list members".
The method of their election will be as follows -
i) Each party which has nominated candidates for election in
one-third of the constituencies will be entitled to put up a
list of candidates from which list members will be chosen.
ii) Candidates contesting constituencies will not be eligible to
be included in a list.
iii) Candidates will be placed in alphabetical order to make it
clear that the order in which they may be selected by their
party bears no relation to the order in which they appear in
the list.
iv) At the end of the poll for constituency candidates the thirty-
six 'list' seats will be allotted to the parties on the basis, as
near as possible, of the proportion which each party has got
of the total number of votes cast for party candidates in all
the constituencies.
v) A party which fails to win one constituency seat or does not
receive 5% of the votes cast in the election will not be en-
titled to an allocation of seats from the list and the votes
cast in its favour will not be taken into account for any
purpose.
208. Table 6 sets out what the distribution of seats would have been in Parlia-
ment in 1956, 1961 and 1966 had the system recommended above been in use.
The detailed method of working out the proportionality of votes to seats from
the lists is set out in Appendix E. No computers are needed as the calculation is
a relatively simple one. Also set out in that Appendix are detailed workings of
what the results in 1961 and 1966 would have been on the system we have re-
commended.
Table 6
Constituency List Total
Votes
Seats Seats Seats
1956 PNM 105,153 13 12 25
PDP 55,148 5 6 11
Butler 31,071 2 3 5
TLP-NDP 13,692 2 1 3
POPPG 14,019 2 2
Independents 40,523 2 0 2
1961 PNM 190,003 20 17 37
DLP 138,910 10 13 23
1966 PNM 158,573 24 20 44
DLP 102,792 12 13 25
Liberals 26,870 3 3
Workers & Farmers
Party 10,484 -
209. The proposed system has a number of advantages -
a) Through the constituency member it preserves a close link between
the constituency and its representative.
b) The qualifying conditions that a party should win one constituency
seat or obtain 5% of the votes should prevent the mushrooming of
mini-parties not representing any recognisable interest. Such parties
may be formed but it is unlikely that they will win seats or survive
for very long.
c) Every vote counts. Even if cast for a candidate who fails to win a
constituency seat it will help boost his party's total number of votes
and thus increase the number of list members it can select. There will
be no point in writing off any constituency because it cannot be won.
Similarly in safe seats a party will have to work towards securing
as large a poll as possible to increase its total share of the vote. This
should promote participation.
d) As will be seen from Table 6 the under-representation of the smaller
parties is partly corrected and, although the over-representation of the
major party is not entirely cancelled out, it is reduced. The POPPG
would have secured representation in 1956 and the Liberals in 1966.
The Workers and Farmers Party would have failed to qualify not
having won a seat and not having obtained 5% of the votes cast.
c) Because over-representation is not completely corrected, a party
which wins an absolute majority of the votes cast will normally be
assured of a working majority in the National Assembly.
Thus in 1966 PNM with 52.4% of the votes cast would have secured 61.1% of
the seats in the National Assembly. Government without coalition would thus be
possible but with a strengthened opposition.
210. It may of course be argued that introduction of the new system of voting
will alter the pattern of voting so that elections of the past will offer no sure guide
as to what elections of the future may be. The fact is however that other countries
have changed over to varying systems of proportional representation while main-
taining effective government and, as in the case of Northern Ireland, the system
has been adopted as a means of reconciliation. In Lakeman and Lambert "Voting
In Democracies"-2nd edition (1959) pp. 157-199 the experience of a number
of countries is reviewed. Even where the number of parties has increased after the
introduction of proportional representation parliamentary representation has been
shared among the major parties. There is no reason for thinking that the experience
here will be otherwise. The change of the system can only marginally affect the
considerations which the voter weighs in his mind before casting his vote. What it
does affect is the outcome of his choice as manifested in the results of the election.
211. It has been argued that the system of proportional representation will
tend to reinforce patterns of racial voting. No reasons have been advanced why
this should be so. It was under the first-past-the-post system that the two main
ethnically based parties PNM and DLP emerged. The considerations which
led to this division will remain unaffected by the introduction of proportional
representation. It cannot be argued that the first-past-the-post system makes racial
voting ineffective. The results of the 1958 Federal Elections and the 1961 and
1966 general elections would disprove this. It may well be that the DLP are
convinced that the present system is geared to make racial voting effective for
the PNM rather than for them. If proportional representation leads to removal
of that fear, then the society would certainly be the better for it. In any event
the demographic picture will certainly change in time. A system which favours
one group today may work against it in the near future. A fair system which
favours neither group must certainly be the better course. Further, our projection
is that proportional representation may well help reduce racial voting. Electors
who wish to cast their votes for smaller parties making their appeal on the basis
of ideology alone may not be quite as bothered by the nagging feeling that they
may be wasting their votes. Such parties would stand a much better chance of
securing representation in the legislature by obtaining 5% of the votes cast.
212. There is also a fear that proportional representation will lead to weak
coalition governments. The first-past-the-post system is no guarantee against
coalitions. There is a government in office now in Canada elected under a first-
past-the-post system which does not have a clear majority in Parliament and has
to depend on the vote of another party to have its measures passed.
213. In his book "Democracy or Anarchy" (1941) F.A. Hermens argues that
the rise of fascism in Italy and Germany between the two world wars was the
result of proportional representation systems which led to weak coalition govern-
ments. The argument is simplistic. Many factors contributed, most important of all
the economic dislocation resulting from the depression in the thirties. The import-
ance of this economic factor has become more obvious since World War II and is
illustrated by events in the Federal Republic of Germany. There, where a mixed
system of proportional representation has been in use for quite a long time,
coalition governments have proved to be quite strong, so much so that it is today
one of the most prosperous countries in Europe.
214. Criticisms have been levelled against proportional representation as
having been the cause of problems in Cyprus and Northern Ireland. In Cyprus
there is communal voting, not proportional representation. Each community,
Greek and Cypriot, votes for its own representatives. No one suggests this for
this country. Northern Ireland has just had proportional representation introduced.
The British who sponsored its introduction did so in the expectation that a fairer
system of representation would help ease the bitter tensions which have so long
existed between the Catholics and Protestants there. The signs are hopeful. A
coalition government has been formed which allows a mainly Catholic party a
share in the running of that country. No such bitter tensions exist between our
major local groupings and the likelihood is that none will develop. A fairer system
of representation should help to ensure that none will.
215. It is our view that expanding the National Assembly is essential if its
vigour is to be increased. The domination of the elected chamber by the sheer
weight of government members in it should be somewhat eased. The list members
who are not burdened with the responsibility of looking after a constituency will
be more readily available for other parliamentary duties. Political parties can use
the list to elect to the National Assembly persons who can render good service
but are hesitant to face the vicissitudes of a constituency election-the very type
of person who, it is thought, would under the present system be nominated for a
seat in the Senate. They will be more useful as members of the National Assembly
where power really lies.
216. It is true that the mixed system does not completely eliminate the ad-
vantages to be gained by gerrymandering as does the pure list system. But the
advantage of maintaining the link between elector and constituency member is
vital enough to compensate for this lack. It was clear during our meetings with
the people that there was a real need for closer communication between the
member and the people whom he was elected to represent.
Method of Voting
217. One of the most controversial issues when this Constitution Commission
was first appointed was whether the voting should be by ballot box or voting
machines. Ballot boxes had been in use up to 1960 but in mid-1961 the Repre-
sentation of the People Ordinance was passed to introduce the system of perma-
nent personal registration and voting by machines. Both these innovations were
strenuously opposed by the DLP which was then the principal party in
opposition.
218. We have no doubt that the system of permanent personal registration
is considerably in advance of anything which had existed before. If the system
is operated correctly the voter can be readily identified by his registration card
which carries his picture, thus making more difficult the impersonation which
had been rife in previous elections. The staining of the voter's thumb has also
helped in that regard. We recommend that both these procedures be retained.
219. Voting by machines is certainly more controversial. In 1961, the num-
ber of voters did not exceed 400,000, so it could not be argued that machines
were needed to speed up the process because of the size of the electorate. The
cost was high and the machines would not ordinarily be used more than twice
in every five-year period, that is to say, for one general and one local govern-
ment election.
220. The DLP argued that the machines had been introduced because they
could be rigged without any serious risk of detection and because they placed its
supporters at a disadvantage since they were largely rural persons for whom the
machines would be difficult to understand and handle.
221. The introduction of these expensive machines followed PNM defeats in
the Federal Election and the local government election in 1959. The suspicion
arose that if DLP could not be beaten at the polls, they had to be beaten by
riggable machines. The result of the 1961 elections (PNM 20 DLP 10)
strengthened that suspicion. But it should be noted that as early as August 1956
PNM had advocated the use of voting machines and permanent personal regis-
tration. The question was the timing.
222. At the first election held with machines, election petitions were pre-
sented by unsuccessful DLP candidates claiming that the results should be de-
clared void because of failure of the machines. The evidence established that
some machines had not operated as they should have done. In some cases, the
total number of votes shown on the counter as having been cast by all the voters
did not correspond with the total of the votes cast for each of the several
candidates.
223. In the course of the hearing of the petitions, the petitioners applied for
an order to have the machines thoroughly inspected. This would have involved
opening them up so that their mechanism would be laid bare and the causes of
the errors identified accurately. This the court refused to allow. At the final
hearing the court held by a majority that the errors proved were insufficient to
justify declaring the results void. The dissenting judgment maintained the view
that inspection of the machines should have been allowed to pinpoint the causes
of error and that in the absence of such inspection the election could not be
held to have been properly conducted. This division of the court undoubtedly
helped to sustain the doubts which opponents of voting machines entertained as
to their accuracy, their reliability and the possibility of their being rigged.
224. Instances were cited to us as we toured the country which sought to
establish that the voting machines must in fact have been rigged. The evidence
was unsatisfactory. The feeling of dissatisfaction may well have been eased had
complaints been treated with sufficient seriousness.
225. We do not consider that the critical question is whether the voting
machines were rigged or were riggable. As we have said, the evidence does not
satisfy that they were rigged. But even if they were in fact a sound means of
voting, the widespread genuine lack of faith in their reliability appears to us to be
reason enough for a change.
226. Further, if our recommendation is accepted that the vote be given to
the 18-year olds, many more machines will have to be purchased for use in the
additional polling stations which must be set up to handle the larger electorate.
This expense would not be justified when it is so much simpler and cheaper to
revert to a method of voting still widely used in almost all the western demo-
cracies and found to be effective there. Venezuela which had decided to switch
to voting machines has recently changed its mind and decided to keep the ballot
box. While it is true that the reason behind this change is not correctly linked to
questions of efficiency or reliability, it is clear that the advantages of the machines
are not so compelling as to outweigh all other considerations.
227. We recommend therefore that voting under the new Constitution
should be by ballot box. The box should be strong, durable and light. Provision
should be made for a seal and the box should be so constructed that-
a) when locked and sealed before voting, nothing can be inserted into
it except through the aperture intended to receive the voter's
ballot; and
b) after voting, that aperture also can be effectively sealed.
In the course of their visit to India the Chairman and other members of the
Commission were shown the ballot box used there and they were given a sample
which they brought back with them. It seems to us to meet satisfactorily the speci-
fications prescribed, but other types of boxes may serve equally well.
228. Questions arose as to whether or not the method of voting should be
prescribed in the Constitution. One view was that it was not a matter of im-
portance and that an amendment of the Representation of the People Ordinance
was all that was needed. We think however that over the years this issue has
acquired so emotional a significance as to justify its being recognized in the Con-
stitution. We therefore recommend that the provision should be placed there.
229. Frauds are possible with ballot boxes but they should be easier to detect
and prevent. No false votes can be put into the box during the period of polling
since the voter places his ballot in the box in the full view of all persons in the
polling station. The possibility that ballot boxes may be hijacked while being
transported to the central electoral office also exists. To prevent the possible
frustration of an election by this method we recommend that the practice be con-
tinued of taking and recording at each polling station a preliminary count of the
votes immediately after the close of the poll. It should be conducted by the super-
visor in charge of the polling station in the presence of the agents of the political
parties and of the policeman detailed to provide security. If needed, limited
though not selected members of the public could be invited also as witnesses to
the count. The box should then be transported to the central office to be re-
checked before the official results are announced. Since there would have been
a preliminary count by then, provision could be made to treat this as official if
the ballot box was stolen while in transit.
230. Voting by ballot it is argued suffers from the disadvantage that many
voters spoil their ballots by failing to make a proper mark. In the election held
in 1956, over 6,000 votes amounting to 2.1% of all votes cast were rejected as
spoilt. This is a significant number. In the course of their visit to India, members
of the Commission were shown a rubber stamp which is used in that country for
marking the ballot. The stamp bears an emblem resembling a swastika with an
arrow at the end of each arm pointing in an anti-clockwise direction. If the
stamp is used when there is too much ink on it so that a reverse image appears
on another part of the ballot paper, it is always easy to know positively where
the original impression was made.
231. We recommend the use of a stamp with some appropriate device for
marking ballot papers as a satisfactory method of reducing the likelihood of
ballot papers being spoilt by unacceptable markings.
Qualifications for voting and for being elected.
232. We recommend that the voting age be reduced to 18. This is the legal
age of majority fixed by the Age of Majority Act, No. 28 of 1973.
233. Since the introduction of adult suffrage the tradition here has been that
a person becomes entitled both to vote and to be elected to Parliament upon
reaching his majority. We see no reason to depart from this. Accordingly we
recommend that the qualifying age for nomination as a member of the National
Assembly be reduced to 18 years. Even independently of the passing of the 1973
Act we would have recommended this reduction which was favoured by the
great majority of persons who expressed their views to us.
234. We do not recommend any change in the qualifications as to residence
but rather we recommend that there should be a clause in the Constitution pro-
hibiting the passing of any law which would remove residential qualifications.
We are particularly opposed to citizens resident overseas voting in elections here.
At our meeting in New York nationals were solidly of the view that there
should be no overseas voting. We are of the same view.
Integrity in Public Office
235. One of the root causes of the growing lack of faith in the conventional
political process is the widespread belief that corruption is rife among those who
hold high political office. No proof has been forthcoming of any acts of corrup-
tion, but we agree that suspicions have been not unreasonably aroused. Such
suspicions should as far as possible be removed if public service is to be pre-
served as an honourable career for talented citizens.
236. The Jamaican Government has recently tackled this problem and we
have found their law, the Parliament (Integrity of Members) Act 1973, very
helpful in considering our own situation.
237. Our recommendations are as follows-
(1) A Commission shall be established which shall be called the Par-
liamentary Integrity Commission.
(2) It shall consist of a Chairman and three other members all appointed
by the President after consultation with the Prime Minister, the
Leader of the Opposition and such other persons as he may wish to
consult. Members should be persons of recognized ability and ex-
perience in financial or legal affairs.
(3) Each member of the National Assembly shall within three months
of taking his oath of office furnish to the Commission a statutory
declaration of his assets, his liabilities and his income. Thereafter
he shall file a similar declaration on December 31 in each year
during any part of which he remains a member and at the end of
twelve months from the date on which he ceases to be a member.
(4) The declaration shall include the assets, liabilities and income of
his wife and children under the age of 18 living with him as part
of his household.
(5) The Commission shall examine these declarations and may request
from any member such further information as it may require. The
Commission may also if it thinks fit make independent enquiries. It
shall have power to summon witnesses and require the production
of documents.
(6) The Commission may also summon the member to produce further
documents or to attend for the purpose of its enquiry. A member
so required to attend shall have the right to be accompanied by a
lawyer and an accountant.
(7) Where the Commission is not satisfied with any aspect of a decla-
ration the Commission shall report the matter to the Prime Minister,
the Leader of the Opposition and the leaders of any other party
represented in the National Assembly.
(8) The leaders to whom such report is made may take such action as
they think fit, including publication of the report. They may also
authorise the furnishing of information to the Attorney-General.
(9) Provision should be made to ensure the confidentiality of informa-
tion supplied to the Commission and for the protection of persons
publishing authorized reports of the Commission.
(10) A member who without reasonable cause fails to furnish a decla-
ration or to give information requested by the Commission or to
attend an enquiry before the Commission or who knowingly makes
a false statement in the declaration or gives false information on
an enquiry shall be guilty of an offence and in addition to any
punishment prescribed by law shall be disqualified from being a
member of the National Assembly for at least ten years.
Where the offence involves non-disclosure of the member's pro-
perty, the court may in addition to any other punishment forfeit
the property if it is situated in Trinidad and Tobago or if it is
situated abroad order that an amount equal to the value of the
property as assessed by the court be paid by the member to the
Treasury.
238. It may be argued that these provisions could easily be evaded by having
property put in the names of relatives other than spouses or infant children. If
the existence of the law drives politicians to these subterfuges, they run the risk
not only of being discovered but also of losing their property if those whom they
trusted prove to be as corrupt as they.
239. There is also the possibility that the law may prevent honest men who
jealousy guard the privacy of their financial affairs from going into politics.
Indeed, when a similar law was introduced in Jamaica, one Senator preferred to
resign rather than to comply. Despite this possibility we are convinced that the
overriding interest is the maintenance of complete frankness regarding the finan-
cial affairs of those who hold political office.
240. There is no doubt that the temptations which beset politicians today
all over the world are powerful especially in developing countries. There is
no need to plunder the Treasury. Persons seeking concessions and favours are
often ready to pay for them. The recommendations we have made should assist
in promoting confidence in the integrity of public life in Trinidad and Tobago.
Resignation or Expulsion from Party Membership
241. We also considered whether a member of the National Assembly should
retain his seat if he resigns or is expelled from the political party which spon-
sored his election. The debate on this issue stretches back to the beginnings of
parliamentary democracy in Britain as we know it today. On the one hand it is
contended that a member of Parliament is a representative chosen by his con-
stituents to exercise his independent judgment on deciding issues as they arise.
On the other hand it is contended that he is a delegate bound by instructions he
has received and ought not to continue to hold office if he feels unable in
conscience to carry out his instructions.
242. In the context of modem politics the odds are very heavy indeed against
the party member who challenges his party on any issue which he considers
vital and seeks the support of the electorate for his stand. The pressures are all
in the direction of conforming to party discipline which, while essential, can
become so rigid as to have a completely deadening effect on the movement for
change within a party. A compromise must be found between the needs of party
discipline and the dangers of party persecution.
243. We decided that there was no need to make any distinction between
the list member and the constituency member. In both cases we are convinced
his success at the election is almost totally the result of party support. There is
strong evidence in favour of that view -
In 1961 the member for Princes Town standing as a candidate for the
DLP polled 7,986 votes or 65.7% of the votes cast. In 1966 the same
member standing as a candidate for the Workers and Farmers Party
polled 530 votes or 5.56% of the votes cast.
In 1961 the member for Caroni East standing as a candidate for the
DLP polled 6,765 votes or 59.36% of the votes cast. In 1966 the same
member standing for the Liberal Party polled 217 votes or a mere
2.52% of the votes cast.
However justifiable in terms of political principle the change of allegiance
may have appeared to these two members they were quite unable to carry their
constituents with them. Having changed their allegiance they had ceased to re-
present their constituents.
244. We therefore recommend that a list or constituency member who resigns
from the party which sponsored his election should lose his seat immediately
upon his resignation.
245. There may be cases in which a member may have a difference with his
party which he may feel does not require his resignation. The party may however
wish to expel him or force him to resign. In such circumstances it is our view
that the country as a whole has an interest in ensuring that fair play is done
between the member and the party since the member occupies an office of im-
portance in the machinery of government. We recommend therefore that the
Constitutional and Legal Affairs Committee should as soon as possible after it
has been constituted draw up rules defining what misconduct on the part of a
member in relation to matters of party discipline would be good ground for
holding that he had ceased to behave as a member of his party. A party which
felt that a member was in breach of these rules and was nonetheless refusing to
resign could apply to a judge for an order that the member was in breach and
should lose his seat. The issue would be determined by a bench of three High
Court judges from whose judgment there would be no appeal.
246. It is our view that this procedure would protect a member from capri-
cious expulsion from Parliament while at the same time enabling a party to deal
with a member who has obviously ceased to support them though refusing to
give up party membership.
247. Where a list member loses his seat as a result of these recommendations
his party will name a successor from the list put up at election time. Where a
constituency member loses his seat in this manner there will be a by-election
within 90 days. The member will, of course, be entitled to contest the by-election
if he so wishes.
CONDUCT OF ELECTIONS
The Boundaries Commission
248. At the pre-Independence Conference in London in 1962 the issue of a
proper elimination of constituencies was already a matter of controversy. Hence
the Conference Report makes specific reference to the chairmanship of the Elec-
tions and Boundaries Commissions Paragraph 59 reads:
"After hearing an important statement by the Premier of Trinidad and
Tobago the Conference agreed that it was a matter of great importance
to honour the convention whereby the Prime Minister consults the
Leader of the Opposition on all appropriate occasions, in particular on
all matters of national concern, including appointments to suitable
offices of a national character- for example the chairmanship of the
Elections and Boundaries Commissions"
249. The Chairman and members of the Boundaries Commission appointed
immediately after independence were an agreed choice of the Government and
the Opposition. Subsequently the Opposition wished to effect a change. But
when their term of office expired they were re-appointed without consultation
and despite expressed dissent. We were told that the Government took the stand
that, while consultation was necessary on a first appointment, it was not required
for the re-appointment of an incumbent. In the result, confidence in the work of
the Boundaries Commission has steadily diminished.
250. We believe that most people are not sufficiently aware of the difficulties
of the task of delimiting constituencies the result of which must almost inevi-
tably displease one party or the other. It is essentially a political exercise in which
various political parties, well aware of their own interests, bargain to gain the
best they can for themselves. In the end they usually produce a compromise
which each finds perhaps only barely acceptable.
251. In Barbados, in Jamaica and in the United Kingdom, the task is done
by an ad hoc committee of the legislature presided over by the Speaker, his role
being largely to promote attitudes which would lead to a reasonable solution. We
are of the view that a modification of this method would be best suited to Trini-
dad and Tobago. We agree there is no need to have a permanent Boundaries
Commission. Delimitation is an exercise which should be conducted once in an
agreed period and when it is completed the body charged with doing it should
go out of office; but while we recognize the need for a neutral chairman to smooth
the process of arriving at a compromise we think that he should not be directly
connected with political activity.
252. Accordingly, we recommend that there should be a Boundaries Com-
mission of five persons-two appointed by the President after consultation with
the Prime Minister; two appointed by the President after consulting with the
Leader of the Opposition and any other opposition groups in the National As-
sembly, and one independent person appointed by the President who shall be
the Chairman. The President will act in his own discretion in the appointment
of the Chairman, but after consultation with the Prime Minister and the Leader
of the Opposition.
253. This Commission would be appointed at the first sitting of each new
Parliament and should be required to present its report within 18 months of its
appointment. The report would be presented to the Speaker and would be subject
to debate in the National Assembly. When approved with or without modifica-
tion, it would be made effective by an order signed by the President and would
come into force at the general election next ensuing. By-elections would be con-
ducted on existing boundaries. The Commission would be empowered to call on
technical officials in the Public Service, in for example the Department of Lands
and Surveys, the Department of Statistics and such other Departments as it may
wish, and on field officers of the District Councils for any assistance which it
may need in the performance of its duties.
254. The instructions on the principles to be followed in delimiting bound-
aries set out in the Second Schedule to the present Constitution seem to us to be
reasonable, so we recommend no change.
The Elections Commissioner
255. In the present Constitution the responsibility for elections rests with
the Elections Commission which comprises a Chairman, and not less than two
nor more than four other members, all of whom are appointed by the Governor-
General acting in accordance with the advice of the Prime Minister. The same
persons have been appointed to both the Boundaries and the Elections Com-
missions, the claim being that while doing the work of delimitation they would
have in mind the administrative arrangements needed for the actual conduct of
the elections. Whatever the advantages may be, the result of the identity of mem-
bership has been that the Elections Commission has suffered from the same loss
of confidence in the quality of its work as the Boundaries Commission.
256. Complaints centre mainly in the area of registration. A spokesman for
the DLP stated that registration officers visiting areas would either by negligence
or design omit to register houses where supporters of the party live. Of course,
provisional lists are published and it is open to each party to study them and
take appropriate steps to correct any omissions. It is however so important to
maintain the integrity of the process of conducting elections that we recommend
that an agent of each party which has a national following should be entitled as
of right to accompany the registration officers sent out by the department. These
party agents should be paid by the State. The question whether a party qualifies
for this facility should be one for decision by the authority charged with respon-
sibility for the conduct of elections (at present the Elections Commission). In
making its decisions the authority should have regard to, but should not be
bound exclusively by, the results of previous elections. It should also take into
account current party strength as evidenced by records of membership.
257. We recommend that the responsibility for the conduct of elections be
placed in the hands of a full-time Elections Commissioner rather than an Elec-
tions Commission. The President should nominate a candidate for the post who
would be appointed if approved by a three-fifths majority in the National As-
sembly. Parliamentary approval by a special majority designed to ensure some
support by opposition elements seems to us important because the work of this
official is so vital if confidence in the integrity of parliamentary elections is to
be restored and strengthened. The Commissioner would hold office during good
behaviour as do judges and the Auditor-General and the method of his removal
would be similar to that applicable to the Auditor-General. To assist him in his
duties we recommend that there should be two Deputy Commissioners appointed
by the President after consultation with the Elections Commissioner; also, the
Public Service Commission should consult with him before making appointments
to or transfers from his staff.
258. It is our view that there are advantages in this system over that of part-
time commissioners appointed for a period of five years, subject to renewal. The
work of supervising the permanent registration of citizens and conducting
elections is work of an administrative nature requiring constant attention and a
department created for this purpose having the status and authority of the Auditor-
General's department would be better fitted to carry it out.
CONDUCT OF BUSINESS
Presiding in the National Assembly
259. We have recommended that the National Assembly should be presided
over by the Vice-President as Speaker. The method of his election and his
qualifications for office have already been considered in Chapter IV. In so far as
possible, the office should be shielded from political partisanship. He should
have neither an original nor a casting vote because it would be most embarrass-
ing for him and might well destroy his image of impartiality if he were called
upon to decide a bitterly contested issue. In the event of a tie in voting in the
Assembly while the Vice-President/Speaker is presiding the motion will be
deemed to have been rejected. His term of office like that of the President should
be five years so that they both go out of office together.
260. We recommend that there should be a Deputy Speaker elected by a
simple majority from among members of the National Assembly. His election
should take place at the first session of each Parliament and he will hold office
for the life of that Parliament. He will preside during the temporary absence of
the Speaker. While presiding he will have only a casting vote.
Parliamentary Committees
261. The purposes which Parliament serves appear to be fourfold--
(1) to debate bills placed before it and either pass them into law with
or without amendments or reject them;
(2) to examine government policies and to seek to influence them;
(3) to keep a watchful eye on the implementation of policy and the
expenditure of public funds; and
(4) to inform the public of government's policies and of the criticisms
levelled at them.
The first three of these four functions can be more effectively carried out if
the initial stages of investigation and collation of information are done by a
committee of Parliament rather than by the entire body.
262. In March 1973 Malcolm Shaw (University of Exeter) and John Lees
(University of Keele) presented a paper setting out conclusions drawn from a
research project into the functioning of the committees of the Legislatures of
nine countries. They ranked these countries in the order of the importance of
the role played by the committees in influencing the outcome of matters in the
legislature or its output. Canada, Britain and India ranked in that order in front
only of Japan and behind the United States of America, Italy, Chile, West Ger-
many and the Phillipines. The results seemed to support the view that in a
Westminster-type system committees do not on the whole become powerful aids
to parliamentary efficiency particularly where there is a dominant party in the
Parliament which enforces tight party discipline. Recent Canadian experience
shows however that where the committee system is properly structured the im-
portance of its role can be increased in spite of these adverse factors. Thus the
authors point out that Canada would have been ranked below Britain had the
study been done before the Canadian reform which came into effect in 1968.
263. Committees already exist in the present Parliament. The best known
Standing Committee is the Public Accounts Committee which under Opposition
chairmanship examines the public accounts on the basis of the Auditor-General's
report. Occasionally ad hoc Committees are appointed to study particular mat-
ters of policy-for example the Committee on reducing the age of majority. Com-
mittees investigate bills submitted for the incorporation of religious and chari-
table organizations before they come up for debate. The permanent Committees
like the Public Accounts Committee are concerned more with matters of ad-
ministration than of policy, while the Committees which look into matters of
policy are set up for a particular purpose and are dissolved thereafter.
264. As regards legislation, bills are usually referred to a Committee of the
whole House after the debate on the policy of the measure has been concluded
at the second reading. There is no attempt at specialisation and there is little
likelihood of inducing the Government to make any significant concession after
the public debate. All of this places an emphasis on the confrontation aspect of
parliamentary politics-Government and Opposition adopting combative stands
in a mock battle the result of which is a foregone conclusion. Admittedly, this
can play a part in attracting public interest in the processes of government but,
particularly in a small country like this, our view is that solid progress is much
more likely to be made by emphasising efficiency as a result of specialisation
and finding areas of consensus in the search for national development. The com-
mittee system seems to offer a useful road to the attainment of these ends.
265. Accordingly we recommend that the importance of the committee
system should be emphasised by enshrining it in the Constitution itself. The
following Committees to deal with specific areas of policy and legislation should
be mentioned -
(1) Finance and Estimates
(2) Public Accounts Committee (Ministries and Departments)
(3) Public Accounts Committee (Statutory Authorities and Nationally
Controlled Companies)
(4) External and Caribbean Affairs
(5) Labour, Industry and Commerce
(6) Agriculture
(7) Constitutional and Legal Affairs
(8) Education and Social Services
The National Assembly would also be empowered to set up any other
Committee it may wish.
266. The Constitution should also prescribe that the membership of each
committee should be no less than five and that members should be nominated
by the Speaker after consultation with the leaders of all parties represented in
the National Assembly. Membership should as far as possible reflect the
strength of the political parties in the National Assembly. The Speaker will name
a convenor for each Committee but once the Committee has been convened it
will elect its own chairman. The Chairmen of the Public Accounts Committees
must not be members of any party associated with the Government. Members
should be named for the entire legislative term, the intention being that they
should develop expertise in their particular fields but, where circumstances make
it necessary, the leaders of political parties should have the right to change their
representatives. Ministers should not be members of Committees lest the Com-
mittees be subjected to the immediate dominance of a.powerful government
figure, but Parliamentary Secretaries will be eligible for membership. The
Speaker will also be responsible for allocating such staff to Committees as seems
to him necessary.
267. All bills after being laid on the table of the National Assembly should
be immediately referred by the Speaker to the appropriate Committee for in-
vestigation and report. He will decide in each case which is the appropriate
Committee. The Committee would be entitled to call for public comments on
the bill and to summon organizations and individuals capable in its opinion of
giving pertinent evidence on any aspect of the bill. It would also have power to
summon a Minister or public officer to give evidence on any issue on which their
knowledge would be of assistance. Our expectation is that in the atmosphere of
the Committee a spirit of co-operation would develop on the basis of interest
and growing competence in a specialised field. Policy suggestions should stand
a better chance of being calmly considered and accepted when the Government
has not yet adopted a public stance as it must do on the second reading.
268. In the case of important bills involving a significant change of policy the
Government should prepare and issue a White Paper for public comment and
submit it for consideration by the appropriate Committee before publication of
the bill. Such a document would assist the Committee by making clear the
Government's objectives and the reasons for pursuing them.
269. Where the appointee to an office has to be approved by Parliament the
name of the candidate should be submitted to the appropriate Parliamentary
Committee for approval before a vote is taken in the National Assembly. In the
case of persons nominated by the President the matter should be dealt with by
the Constitutional and Legal Affairs Committee. But in the case of Chairmen of
Statutory Authorities and nationally controlled companies, whose appointments
we also recommend should be subject to parliamentary approval but by a simple
majority, the matter should be referred to the Committee on Labour, Industry
and Commerce.
270. In each case Committees will decide whether hearings will be in public
or private. We expect that when bills are being considered the committee stage
will offer scope for full participation by all or any interested persons. Under the
present arrangement when a bill is published for public comment, memoranda
submitted by the public go to the Cabinet. The persons who have submitted them
have no idea whether their comments have been duly considered. But if hearings
take place before a Committee it would be possible for such persons to appear
and support their point of view in person before the Committee which always
gives greater satisfaction and encourages greater participation. It should also
serve to open up the processes of government and thus help build confidence in
public institutions.
271. With regard to technical legal matters a Committee would be em-
powered to seek help from the parliamentary draftsman or retain independent
counsel to advise where it thought fit. The likelihood of a measure slipping
through in such a form as not to express accurately the intention desired should
therefore be reduced. Our view is that a specialist committee should be able to
discharge that function more competently than a second Chamber.
272. In the U.S.A. situations arise in which bills are often killed in committee
so that they never go forward for debate in Congress. We would not wish this
to happen here. Accordingly we recommend that Committees should report with-
in thirty days on all legislation or other matters referred to them. If a further
period is needed for proper consideration, then the Committee must ask for an
extension of time from the National Assembly. If this is refused, the matter must
be reported upon on the expiration of the thirty days. If not, the National As-
sembly may proceed to debate the bill without waiting further.
273. Committees would also be empowered to initiate investigations into
areas of national concern where facts must be gathered and public opinion
sounded to supply the bases for a proper formulation of policy. We envisage that
matters now investigated by Commissions of Enquiry or made the subject of
consultations could very well be investigated by appropriate Committees and
reports prepared. Our legislators are not unduly burdened with work. There are
not usually more than 48 sittings of the House of Representatives in a year and
some of them are very brief. Time can be found to devote to parliamentary
business of a nature which should increase the influence and importance of the
National Assembly. Membership of the National Assembly should be regarded
by parliamentarians as their principal occupation to which other vocations must
be secondary.
274. In cases of urgency we recommend that Parliament should have power
to debate a bill directly without having it referred to the appropriate committee.
This is not the sort of decision which Government should be able to make with
the help only of its supporters. As we have said, one of the key factors in re-
ducing respect for Parliament is the frequent rushing through of measures in a
matter of hours with members receiving their papers only shortly before. On
occasion it has happened that the Senate has had to play its part as soon as
the House of Representatives has duly passed the measure. Table 1 in the In-
production provides figures to support this criticism. We recommend that a two-
thirds majority of all the members of the National Assembly be required to dis-
pense with the reference of any bill to the appropriate Committee.
A New Parliament Building
275. Obviously adequate research and secretarial facilities must be provided
for the Committees. They must have their own library and staff under the con-
trol of the Speaker to help them in the performance of their duties if these are
to be properly performed. We think this will require the provision of a proper
building for the National Assembly in part of which the National Archives could
appropriately be lodged. The makeshift quarters Parliament now occupies do
not do justice to its central role as the supreme legislative body. A proper build-
ing among other things will help in the slow process of restoring Parliament to
its proper place.
Dissolution and Prorogation
276. Under the present Constitution, the Prime Minister may advise the
Governor-General to dissolve Parliament and the Governor-General is obliged
to act on his advice. We recommend that there should be a change in this
respect. It is possible that on occasion there will be coalition governments. In
such a government one partner may disengage itself because of differences over
some particular point of policy and may be willing to join with another party to
form the administration. A Prime Minister who has lost majority support in this
way should not necessarily have the power to demand an election.
277. Accordingly we recommend that the President should dissolve Parlia-
ment on the advice of the Prime Minister only if this advice is supported by a
resolution of Parliament to that effect. If the Prime Minister desires a dissolution
but cannot take the National Assembly along with him, then he would be free
to resign. The President could then take steps to ascertain whether any other mem-
ber of the National Assembly is likely to command the support of a majority
and is willing to form the Government. In that event he would appoint him as
Prime Minister. But if he is unable within a reasonable time to find any such
person, then acting in his own discretion he would dissolve Parliament.
278. If the National Assembly passes a vote of no confidence in the Prime
Minister, he must resign within seven days. The President would then seek
another Prime Minister in the National Assembly if one can be found and, if
none can be found, the President w,%uld tl.zn dissolve the House and set a date
for fresh elections.
279. We do not recommend any change in the present provisions for sum-
moning or proroguing Parliament. This would be done by the President acting
in accordance with the advice of the Prime Minister.
280. The normal life of Parliament should continue to be five years and
there should be power to extend its life when the country is at war for not more
than a year at a time, the total extended period not to exceed five years.
Conclusion
281. The changes we have recommended under this head are the most radi-
cal in terms of the present Constitution. Our aim has been to make the Parlia-
ment much more representative of the people and to create procedures which
will cause it to be more responsive to the will of the people through its Com-
mittees. By altering the procedure for enacting legislation it is expected that the
role of Parliament in this field will not be purely mechanical as it tends to be at
present. Each part of the plan is dependent on every other part and together it
constitutes an organically different approach to the functions of Parliament in our
society.
VII- THE EXECUTIVE
282. We recommend the retention of an executive body named the Cabinet
the members of which are chosen from and are responsible to Parliament. We
recommend also that the Prime Minister should be chosen by the President.
He should choose the member of the National Assembly who is the leader
of the party having a majority in the Assembly, or where there is no undisputed
leader in the Assembly of that party or no party with a clear majority, the
person who in his judgment is most likely to be able to command the support
of the majority of the members of the Assembly.
283. The Prime Minister, as now, will be empowered to choose his Ministers
and to decide what departments they should administer. The. Prime Minister
will also be empowered to recommend to the President that any Minister
be relieved of his office or be assigned to a different Ministry.
284. We considered and rejected the suggestion that a limit should be
placed on the number of terms which any person may serve as Prime Minister.
Essentially at any general election voters choose the party which they wish
to form the government. It seems to us unthinkable to impose any restrictions
on the number of successive terms which any party could win. Once that is
conceded, it would seem to be wrong in principle to place a restriction on the
party's choice of leadership. This could have a significant effect on their chances
of winning the elections. Compelling them to change their leader may, in effect,
reduce their chances of success. We do not think that any useful purpose can
be served from a study of the experience of the United States of America and
some Latin American countries where the choice of the President is essentially
the choice of a person, not of a governing party. In these systems the office
of President stands by itself separate and apart from Congress, which may
be controlled by a party other than that to which the President belongs.
285. We also considered and rejected the idea of allowing the Prime Minister
to choose Ministers or Parliamentary Secretaries from outside Parliament, as
in Guyana. The argument in favour of this is that it permits to be brought
into the system technocrats whose expertise can be put to great advantage in
the essentially technical problems of administration. With the proposed Parlia-
ment of 72 members however, sufficient talent should be available to form a
strong administration. Political parties must understand that they should put
up for election persona capable of running a government should they win.
The lists can be used to secure the election to the Assembly of persons of
known administrative or technical ability, who may not have the qualities
which would prove attractive at the polls the very sort of persons who are
generally thought fit for appointment as senators.
286. We recommend that the office of Parliamentary Secretary be retained.
With the increased emphasis placed on committee work in the Assembly Parlia-
mentary Secretaries should be of considerable assistance in presenting the.
administration's view in the absence of the Minister.
Appointment to offices of a National Character and other offices
287. We propose a substantial reduction of the area of patronage at the dis-
posal of the Prime Minister. The Chief Justice, the other members of the
Judicial and Legal Service Commission, the Chairman and other members of
the other Service Commissions, and the Chairman of the Boundaries Commis-
sion should all be appointed by the President after consultation with the Prime
Minister and the Leader of the Opposition instead of being appointed, as now.
in accordance with the advice of the Prime Minister. The Prime Minister will
quite properly have influence but he will not have the final say. This modifi-
cation of the powers of the Prime Minister is in line with the overwhelming
majority of views expressed to us. The diffusion of power seems to us desirable
as a matter of principle. We recommend accordingly.
288. We recommend that the Prime Miinister should retain his right of veto
in respect of appointments to the offices of Permanent Secretary, Deputy
Permanent Secretary, Chief Technical Officer, Deputy Chief Technical Officer,
Chief Parliamentary Counsel, Director of Personnel Administration, Solicitor-
General, Commissioner of Police and the Deputy Commissioners of Police.
These officials are so directly concerned with the formulation of policy and the
supervision of its implementation that they must be acceptable to the political
chiefs with whom they must have a close working relationship. This does permit
some measure of political influence in purely public service appointments but
is necessary on purely practical grounds. We would mention that this recom-
mendation of ours is in keeping with the views of the Public Service Associa-
tion as expressed to us. However, in the cases of the Registrar-General and the
Crown Solicitor we see no justification for the retention of the Prime Minister's
veto. They are purely technical officers operating in a professional field where
policy considerations are negligible. We recommend that appointment to these
offices should cease to be subject to Prime Ministerial veto.
289. We are of course aware that when there is a change of government the
incoming administration will have to work with officials who, to put the matter
at its lowest, were considered acceptable to their predecessors. If the practical
considerations which justify the veto were carried to their logical conclusion
the new administration should have the right to reject the incumbent and have a
new appointment made. However, we do not so recommend. We think that in
the majority of cases these senior public officers should prove capable of work-
ing with their new Ministers. Where there are serious difficulties administrative
transfers can be arranged to solve them.
290. We recommend that the Prime Minister retain control over the appoint-
ment of the Government's principal representatives abroad. They should be
appointed by the President acting in accordance with the advice of the Prime
Minister. It was argued that these persons represented not only the Govern-
ment but the country, so there should be consultation with the Leader of the
Opposition before advice is tendered. We do not agree. Ambassadors, High
Commissioners and other principal representatives abroad hold office for the
purpose of advising the Government generally on matters of foreign policy and
implementing policies which have been decided upon. They must be persons in
whom the Government has ample confidence and this can best be ensured by
placing the power of appointment in the hands of the Prime Minister. The
corollary of this is that such persons should, when a new Prime Minister takes
office, tender their resignations to him so that he may have a free hand either
to re-appoint or to make new appointments.
Leader of the Opposition
291. Provision should be made for the office of Leader of the Opposition. It
is our view that the electoral system recommended is so eminently just that
once it is fairly operated citizens will want to cast their votes to secure repre-
sentation in the National Assembly of the party of their choice. We do not
contemplate therefore that the situation will ever arise where the Assembly will
be made up entirely of members of the governing party. Nevertheless, it seems
safer to provide expressly in the Constitution that a vacancy in the office of,
Leader of the Opposition will not result in Parliament being improperly consti-
tuted. We so recommend.
Administration of the Law
292. Section 62(1) of the Constitution gives the Attorney-General the power-
"in any case in which he considers it desirable so to do-
(a) to institute and undertake criminal proceedings against any person
before any court in respect of any offence against the law of Trinidad
and Tobago;
(b) to take over and continue any such criminal proceedings that may
have been instituted by any other person or authority; and
(c) to discontinue, at any stage before judgment is delivered, any such
criminal proceedings instituted or undertaken by himself or any other
person or authority."
Section 62(3) provides that the powers conferred in (b) and (c) above shall
be vested in him to the exclusion of any other person or authority.
Section 62(4) states -
"In the exercise of powers conferred upon him by this section the Attorney-
General shall not be subject to the direction or control of any other
person or authority."
293. However, the Attorney-General is a member of the Cabinet, collectively
responsible with them for all government actions and subject like any other
Minister to being relieved of his portfolio by the Prime Minister. Instituting
and discontinuing criminal proceedings may have serious political consequences,
but the Attorney-General would be expected to have due regard to maintain-
ing the integrity of the law by ensuring that its processes are set in train with
conspicuous impartiality. This may put an intolerable strain on the Attorney-
General and tends in any event to leave his impartiality always open to
question.
294. The Attorney-General is also the principal legal adviser to the Govern-
ment. The relationship of client and lawyer is one which demands complete
confidence. While the lawyer must necessarily maintain a certain objectivity
if his advice is to be sound, he can and often does become involved in his client's
cause. He seeks to find a way out of difficulty rather than hold an even balance.
This may create problems when there is a duty also not to take advantage of
the citizen who has laid his claim against the State. But in the final analysis,
it is the courts that are the final arbiter of the citizen's rights and we consider
therefore that the Government's claim to have a legal adviser of its choice
in whom it can place implicit trust is valid.
295. We considered setting up the office of Director of Public Prosecutions
and vesting in the holder of that office the power now vested in the Attorney-
General by section 62. However it seemed that the area in which independent
non-political advice was necessary went far beyond that of criminal prosecution.
In the performance of his functions the President may well need legal advice,
so may the Chairmen of the Service Commissions and the Boundaries Commis-
sion, the Elections Commissioner, the Ombudsman and the Auditor-General.
There appeared to be the need for an office with functions more extensive than
those of a Director of Public Prosecutions.
Minister of Legal Affairs
296. We recommend that there should be a Minister of Legal Affairs who
will be a political appointee and member of Cabinet. He will be responsible for
the normal day-to-day legal advice which the Government may require, for
the conduct of civil litigation on behalf of the State and for the drafting of Bills
and parliamentary instruments. The Crown Proceedings Act will have to be
amended so that the official to be sued in order to establish governmental liabi-
lity will be the Minister of Legal Affairs instead of the Attorney-General as at
present.
Solicitor-General
297. At the moment there is a Solicitor-General who is in fact the Chief
Technical Officer in the Attorney-General's Department. We recommend that
he should be renamed Chief State Counsel and that he should be attached
to the Ministry of Legal Affairs. The change of names takes into account the
likelihood of fusion of the professions of solicitor and barrister in the near future
when both terms will fall out of use.
Attorney-General
298. We recommend that there should be an Attorney-General to whom will
be entrusted the duties and functions set out in section 62 of the present
Constitution. He should also be the legal adviser to the President, the Vice-
President, Service Commissions, the Boundaries Commission, the Elections
Commissioner, the Ombudsman, the Auditor-General and such other officials
or departments as Parliament may prescribe. He will be a public officer. To
protect his independence we recommend that his emoluments and conditions
of service including tenure should be the same as those of a judge of the Court
of Appeal. He will control a staff of lawyers for assisting in the work of advis-
ing as to whether or not criminal proceedings should be instituted or discon-
tinued, in drafting indictments and conducting prosecutions as well as in giving
such other advice as he may be called upon to give.
299. It is our view that this division of offices should strengthen public
confidence in the impartiality of the administration of the law in its executive
aspects.
The Executive Power of Mercy
300. As has already been mentioned in the Chapter on the Head of State
we recommend that the power of mercy should be exercised by the President.
He will act in accordance with the advice of a Minister designated by the
Prime Minister. We propose two significant changes from the position as it
now exists -
(1) Where it is proposed to exercise the power in cases other than capital
cases the Minister should not tender his advice before having obtained
through the Chief Justice a report from the judicial official who presided
over the court which imposed the sentence. Such a report has always been
required in capital cases and there seems to be no good reason why it
should not be required in all cases. The freedom of the Executive to act is
in no way restricted but there is the assurance that the views of the court
have been considered.
(2) The Advisory Committee has been restructured to include
persons appointed by the President acting in his own discretion. Since the
power has to be exercised in his name it seems reasonable to permit him
to name on the Committee persons in whom he has confidence.
The Advisory Committee should now consist of
(a) the Minister designated by the Prime Minister to advise the Presi-
dent. This Minister would be the Chairman
(b) the Minister of Legal Affairs
(c) the Attorney-General
(d) two other members appointed by the President acting in his own
discretion.
The Minister advising the President will as now retain the right not to accept
the recommendation of the Advisory Committee.
VIII- LOCAL GOVERNMENT
301. In our consultation with the people at public and private meetings and
from the memoranda received there was almost unanimous agreement on the
need for greater decentralisation of government and for giving more power to
local government authorities. Opinions were divided however as to whether
or not these powers should be included in the Constitution. It is to be noted
that the present Constitution makes no reference to local government.
302. It was our hope that, particularly at public meetings throughout the
country and in private sessions, we would have had facts and arguments put
to us by local government representatives and other persons reflecting directly
or indirectly upon the power, authority and work of the local authorities, the
aims and aspirations of individual authorities and the constitutional and admini-
strative provisions necessary for properly carrying out local government func-
tions. This was not to be. Members of municipal corporations and county councils
and their officers did not accept our invitation to meet with us in private
session to discuss necessary or desirable changes. And at public meetings, only
one member of a county council spoke--and then only to reply briefly to a
point raised at a meeting by an ex-county councillor on an alleged discrepancy
in the figures of the voting machines used at the election which he contested
and won.
803. At public meetings and in private sessions we were able to discuss with
persons who had previously served on municipal and county councils for a
number of years, some of whom had been defeated at the last elections held
in 1970. Unfortunately, the majority of the comments were directed at failures
in the conduct of the day-to-day administration of the several councils and their
inability adequately to satisfy the demands of the people in areas such as
environmental sanitation, maintenance of roads, recreation grounds, markets
and the supply of truck-borne water. We have perused the report of the "Com-
mittee appointed by Cabinet for the purpose of reappraising the present system
of local government in Trinidad and Tobago in the context of Independence"
(the Sinanan Report 1966) and note that suggestions were made therein for
improvement of these areas of administration. Very few of the recommendations
of that report have been implemented.
Brief History of Local Government
304. The earliest form of local government was the Cabildo, an institution
established by the Spanish Government, for an area now included in the City
of Port-of-Spain. It was a corporate body presided over by the Governor and it
functioned as an ecclesiastical council, a parish vestry and a municipal corpora-
tion. It levied duties and taxes in Port of Spain, including the harbour, super-
vised the repair and scavenging of streets and markets, and was responsible
for the police, prisons, health, sanitation and the registration and admission of
medical doctors to practise their profession. This council, later to be known as
the Port of Spain Town Council and finally as the Port of Spain City Council,
had a chequered history. It was for many years a vibrant body, jealous of its
authority and resisting any interference from the central government. The
Corporation was a rating authority, assessed and collected rates for lands
and buildings within the corporate area, won and distributed water, provided
for disposal of sewerage and garbage, distributed electricity and received licence
fees for certain vehicles registrable within the corporate area.
305. The San Fernando Borough Council established in 1846 and the Arima
Borough Council founded by Royal Charter in 1888 generally had the same,
powers as the Port of Spain City Council in respect of the corporate areas of
San Fernando and Arima. However they did not win water, but purchased it
from the central government to re-distribute to their burgesses for which taxes
were levied. There was no sewerage disposal unit in San Fernando or Arima. The
San Fernando Borough Council generated and distributed electricity. Arima
did neither.
306. In the counties local government administration developed out of a
system of Wardenship a replica of the French "Prefect". The Warden or
District Administrator was virtually the "Governor" of the County, co-ordi-
nated all the services and was responsible to the central government for revenue
collection, security, allocation of crown lands, roads and health. He submitted
monthly administration reports to the Governor. In 1946 county councils were
established as advisory bodies to advise the Warden in some of his administra-
tive duties. Later, in 1952, they were invested with executive powers, their
principal functions being the maintenance of local roads and crown traces,
sanitation under the Public Health and Malaria Abatement Ordinances, the
maintenance and control of burial grounds, recreation grounds and markets and
the emergency distribution of water in areas devoid of a pipe-borne supply.
307. Throughout their history therefore local authorities had been comple-
mentary to central government and, because of the smaller geographical area
under their control, were expected to provide a more personalized service serv-
ing local needs and aspirations.
Economy of Administration
308. Throughout the world, because of economies of scale, there has been
the tendency in recent years for the power and influence of central governments
to increase at the expense of provincial or local authorities. Trinidad and
Tobago has been no exception. We live in an increasingly interdependent world
in which the national effort must, if progress is to be made in a coherent and
beneficial way, be given precedence over regional or community projects. At
the same time it must not be forgotten that the region and the community are
integral parts of the nation.
309. Trinidad and Tobago is forced to obtain loans for its capital works
programmes. Many of these loans are made from international lending agencies.
Since the loans are made to the central government or to large nationally con-
trolled companies (as in the case of Caroni Ltd.) there must be central govern-
ment control and supervision as the loan agreements explicitly require this. The
central government may allocate part of the funds for specific projects within a
local government area, but it cannot abdicate its responsibility for control and
supervision.
310. The result of all this is a near complete dependence of the local autho-
rity on the will of the central government particularly for major devel-
opment schemes. Works programmes even when initiated by the local authori-
ties are planned in detail, financed and controlled by the central government.
Local authorities have lost control over electricity, transport, water and
sewerage, land utilisation and development and the award of contracts for
sums in excess of $10,000, all of which are with some justification considered
matters of national importance needing integrated planning, sound financial
control and a uniform approach.
Party Politics
311. The control of local government authorities, especially in the municipal
areas, is a prize on which parties are bound to cast covetous eyes. We have
noted the dominance of the central party machinery over their representatives
at local level. The election of the Mayors and Deputy Mayors of Municipalities,
Chairmen and Vice-Chairmen of County Councils and representatives on their
various committees has become a ritual pre-determined by central party direc-
tive. This centralisation creates a genuine reluctance (in some instances fear
Iray be a more appropriate word) at the municipal and county levels to take
decisions even on matters within the particular body's competence.
Bureaucratic Control
312. Officials of local government authorities are increasingly being governed
and controlled by central government machinery. The Chief Executive Officers
and staff of County Councils all hold appointments within the Ministry of Local
Government and, while serving their respective councils, are subject to disci-
pline and control by and take their instructions from the Ministry. The quali-
fications and conditions of service of senior executive officers of the municipal
corporations are laid down by the central government, and appointments must
be ratified by the Governor-General acting on the advice of Cabinet. In all
financial matters local authorities are bound by and must follow the financial
regulations and instructions of the Ministry of Finance. Their budgets form
part of the overall budget presented to Parliament by the Ministry of Finance
and are therefore subject to scrutiny by central government officials.
313. From the above it will be seen that local government authorities have
progressively become "departments" of central government, all this notwith-
standing the fact that there has been no major change in their respective
Ordinances which pre-date Independence and which appear to give a measure
of autonomy. Subsequent legislation, the constant lack of funds and dependence
on the central government for resources render any independence on their part
almost impossible.
The case against and for local government
314. Two of the recommendations made to us are worth mentioning. One
was that local authorities had been emasculated and rendered so utterly depen-
dent upon central government that they serve no purpose. The functions they
perform are merely a duplication of the work of central government depart-
ments. The services carried out by local authorities should therefore be placed
under the control of government departments with a more effective chain of
command being passed down to the rural level and all the local authorities
disbanded.
315. The other view advocated complete decentralisation and localisation
of administrative and executive effort. To this end, the country should be
divided into 25 corporate areas with a municipal council responsible for each
serving a population of approximately 40,000 persons. Each area should be
subdivided into villages or communities of about 1,000 persons. Representation
on municipal councils would be through village community groups and, except
for those areas in which it was absolutely necessary to retain central govern-
ment control, for example, security, immigration, income tax which although
assessed and collected by the central government should be redistributed to
local authorities-other activities should be localised. Taxes, fees, licences and
the profits from local enterprises would be collected by the local authorities
and used by them to implement local programmes to serve local needs.
316. We have rejected both suggestions. In the former case, although we
are unable to recommend a significant reversal of the current trend whereby
central government has made severe inroads into areas of local government
control, we feel that local authorities could provide an outlet for participation
in grassroots politics and give to the local representatives an opportunity to be
intimately identified with the formulation of policies and the provision of
amenities for their area and to administer for the needs of their people. It will
also provide useful exercise in democratic participatory politics which may be
of service later at the national level.
317. We see no justification for the multiplication of local authorities as
suggested in the second proposal. These authorities will be so small that their
funds will be quite inadequate to provide and sustain the human and financial
resources necessary properly to administer the areas entrusted to their control.
Complete localisation of resources is impracticable. Among other reasons it
tends to cause great disparities in the level of development and achievement
in the several municipalities. Even if the per capital income of the several coun-
cils is equalised by a transfer of funds, the sum total required for levelling-up
the poorer municipalities, to be met from central government revenues, will be
substantial. At this stage of development the demand for scarce resources is so
great that they should be applied more advantageously to nationally planned
and controlled programmes.
Future of Local Government
318. However we believe that local government can and should play an
effective role in administration in partnership with but subordinate to central
government. The relationship should be founded on the principles that-
(a) local authorities are responsible bodies competent to discharge their
own functions;
(b) the controls necessary to secure the objectives of central government
policy and proper administration should be concentrated at key points
leaving as much as possible of the administrative details to the local
authority; and
(c) local government is an integral element of the democratic partici-
patory process.
319. We recommend that a Committee/Commission should be appointed to
review and up-date the recommendations of the Sinanan Report in the light
of recent constitutional and administrative changes, inclusive of the amend-
ments proposed in our Report. We especially commend for consideration by the
Committee/Commission:
(a) a more logical division of the country into local government areas
especially as they relate to the boundaries of the municipal corpora-
tions of Port of Spain, San Fernando and Arima and the division of
the County of St. George into two administrative areas;
(b) the establishment of a formula for the allocation of revenue to local
authorities on objective criteria such as a capitation grant weighted
by other factors-for example whether rural or urban, industrial or
agricultural areas, and supplemented by grants for specific purposes
such as roads, health, education etc. The effect of fixing such a formula
would be to allow the various authorities to have a reasonably accurate
estimate of the grants to which they will be entitled annually and to
control, if not eliminate, disparities in subventions now made to local
authorities for political or other reasons;
(c) local authorities should be given a greater degree of autonomy over
the control of funds appropriated to them annually by the National
Assembly in the Appropriation Act;
(d) control over essentially local matters should continue to be vested
in local authorities, for example the upkeep, repair and scavenging of
roads and drains, the development maintenance and upkeep of parks,
playgrounds, recreation and burial grounds;
(e) authority for the maintenance of school and some other public build-
ings, cleaning of beaches and prevention of erosion by the sea, erect-
ing and maintaining jetties and providing facilities for fisheries.
Local Government Representation
320. Municipal councils consist of councillors elected by the burgesses by the
first-past-the-post system of elections to represent the respective electoral
districts. The councillors in turn elect from among the burgesses, a number
of aldermen to membership of the council. If a councillor is subsequently elected
as an alderman he must vacate his seat and a by-election is held to fill the
vacant seat. County councils also comprise elected representatives and two
aldermen to each county council, selected by the county councillors. One of
the two aldermen must be selected from the membership of village or com-
munity councils within the county. So in both municipal and county councils
there is a mixture of representatives elected at the polls and members selected
by the councillors.
321. In the chapter on Parliament we recommended a mixed system of
electoral representation for the election of members to the National Assembly.
We also recommend that a mixed system of proportional representation should
be used for electing representatives to local government authorities. One repre-
sentative should be elected by the first-past-the-post system for each electoral
district in the municipal or county council.
322. Within the time fixed for the nomination of candidates for election,
each political party contesting the election should also submit a list of candi-
dates for possible selection as list members to the respective local government
councils. A number of list members equal to one-half of the elected representa-
tives on each council should be selected from the lists in the ratio of the number
of votes won by the respective parties.
323. As in the case of the National Assembly, we feel that the mixed system
of proportional representation will provide an opportunity to participate in
local government to the type of person who may have a contribution to make
to local government politics, but who would be loth to contest an election. This
is the type of person from whom aldermen are often selected, and allows political
parties to select persons of skill and particular disciplines to assist in local
government administration.
Membership of Electoral College
324. In an earlier chapter we recommended that the President and Vice-
President should be elected by an Electoral College composed of members of the
National Assembly and of city, borough and county councils sitting in joint
session. This is in support of our view that local government representatives,
including members of the Tobago Regional Council referred to hereafter, are an
integral element in the process of parliamentary democracy and as elected
representatives of the people are as much entitled to select the Head of State,
the symbol of national consciousness, as are members of the National Assembly.
TOBAGO
325. There was fairly unanimous agreement that because of its separation
from Trinidad by water and the administrative, economic and psychological
problems that flow from such separation, special provisions should be made for
Tobago. Our Chairman, in his remarks introducing the subject of Local Govern-
ment at the National Convention, said in part about Tobago:
"I turn next to Tobago which I think calls for special examination.
I say so because both in Tobago and at this Convention we have had
representations made to us based on the geographical and historical separa-
tion of Tobago from Trinidad. It may be claimed that Tobago is just across
the way, less than 18 miles from Toco, closer to Port of Spain than either
Cedros or Guayaguayare or Moruga, but the fact remains that it is a sea-
girt island, distinct and apart from Trinidad, with its own territorial waters
and dependent in its association with anywhere outside Tobago upon sea
and air communications.
"But that is not all. When, after a chequered history under the suze-
rainty at various times of the British, Dutch and French, Tobago became
British finally in 1814, it was given again the old system of representative
government which had been for some time past the system in vogue in
other British Caribbean territories. Under that system it had its own bica-
meral legislature, and the control of its funds was in the hands of its elected
Assembly. Unhappily, it was soon found that the Island was too small and
too undeveloped to be administered as a separate entity, so in 1833 it was
made for purposes of administration a part of the Windward Islands. Then
in 1889, it was dissociated from the Windward Islands and was by Act of
the Imperial Parliament linked with Trinidad as a single colony. The reason
for this change was that the Island had fallen into a period of severe depres-
sion and it was hoped that economies in the cost of its administration would
ensue and that capital would flow from Trinidad to help in restoring its
finances. These hopes did not materialise. So in 1899 Tobago was reduced
to the status of a Ward of Trinidad, its revenue and governmental admini-
stration were merged in Trinidad's, it ceased to maintain its own statute
book or to have any separate treasury, and thereafter it was governed
from Port of Spain. Worse, it lost its representative parliamentary institu-
tions and had to be content with naked crown colony rule.
"Thus, until the advent of County Councils, Tobago had no representa-
tive organ to express the hopes and aspirations, the fears and apprehensions,
or even the day-to-day actualities of its people. It was not even represented
in the Legislative Council in Port of Spain since that Council was without
an elected membership up to 1925.
"Another factor which needs to be taken into, account is the difference
in the make-up of the two peoples. Substantially, Tobago is a homogenous
society whereas Trinidad is heterogeneous. The culture and customs of the
Tobago people are in many respects fundamentally different from Trini-
dad's. There was a consequent lack of identity between the two societies.
"Then, let us look at the size and population of Tobago. In area it is
116 square miles, larger than Montserrat, the British Virgins, the Cayman
Islands, and even St. Kitts-Nevis-Anguilla. It is only 17 square miles less
than Grenada which aims at Independence in 1974. Its population is
approximately 40,000, less only than St. Kitts-Nevis-Anguilla of the places
I have first mentioned. So the question is asked-why should it remain a
satellite of Trinidad? Why should its imports and its exports have to go
first to. Trinidad and then to be transhipped? Not even the W.I. Shipping
Service honours it with a single call in either direction whereas Montserrat
with 32 square miles and less than 15,000 people has regular calls each way?
Why should it no longer have a Deeds Registry or a Record Office where
certificates of births, marriages and deaths can be obtained? These are
some of the points which have been and are being often made.
"It is not surprising then that the existing Constitution recognized the
special position of Tobago. Whatever its electoral roll, it is prescribed that
it must have at least two seats in the House of Representatives. This was a
privilege and an exception from the rule that the voting strength of every
constituency should be approximately equal."
326. It is clear that the Tobagonian is very different in temperament from
the Trinidadian. There is a lack of understanding, probably psychologically
based, that generates Tobagonian reactions which strike the Trinidadian as
being often unduly querulous. Not surprisingly, the Tobagonian sees things
differently. He accepts that there is much government development expendi-
ture in Tobago, but he sees it as expenditure very largely on tourist promotion
projects which do not affect him particularly. He is unimpressed by the argu-
ment that the W.I. Shipping Service caters for calls at one port only (hence
only at the main port) of each of the contributing units and that, Trinidad
and Tobago being together only one such unit, there cannot be calls at Scar-
borough as well as at Port of Spain. He attributes the higher cost of living in
Tobago to indifference by the Trinidadian to his welfare and prosperity. He
is not content that in order to obtain certified documents such as certificates of
the birth or marriage or death of persons born or married or dying in Tobago
he must apply to an office in Trinidad where he must go or send to collect them.
In a word, he complains that Trinidad does not understand and has never
understood Tobago.
327. This feeling of apartness has manifested itself in, among other ways,
the getting together of what seems to be as yet a relatively small group of
Tobagonians who advocate secession from Trinidad. At the mini-convention
in Tobago they appeared to have qualified their demand in that they called
then for the Constitution to provide for an option to Tobago to determine by
referendum at some unspecified time or perhaps at any time in the future
whether or not to secede from Trinidad. They explained that it was necessary
first to examine thoroughly whether, as they claimed, government revenues
derived from Tobago exceeded public expenditure there. This follows from their
rejection of all assurances to the contrary. The question may therefore be
reversed-what if Trinidad should resolve that the cost of unity is too great
and opt to discard Tobago?
328. In our view, such questions are or should be neither decisive nor rele-
vant. The problems and consequences of further fragmentation in the Caribbean
are fundamentally far more important. Hence means should be sought to dispel
doubts and reconcile differences. Accordingly, we do not and cannot recommend
the inclusion in the Constitution of any provision pointing towards secession.
Rather, our recommendations are and must be aimed at strengthening the
national unity of Trinidad and Tobago.
Office of the Permanent Secretary
329. We are agreed that many of the complaints of the people of Tobago
are justified. While there can be no doubt that special attention has been and
continues to be paid to its physical development, much more needs to be done
to improve the administrative processes and to vest greater executive authority
in the officials resident there. The disparity in administration was brought into
sharp focus by a comparison of the authority which was vested in the then
Senior Executive (the Commissioner for Tobago Affairs) following the devasta-
tion of the island by hurricane Flora in 1963, when it became necessary to plan
and implement urgent rehabilitation and reconstruction programmes, with the
present role of the incumbent Senior Executive (the Permanent Secretary in the
Ministry for Tobago Affairs). It seems to us that broad guide-lines should be
charted within which many executive decisions can be made and administrative
action taken in Tobago without the requirement to refer back to Trinidad for
specific ad hoc authority. We therefore recommend the replacement of the
Permanent Secretary in Tobago by a Commissioner for Tobago and that in any
event the Senior Executive there should be vested with wider powers and
greater authority than he now enjoys.
Communications
330. We recommend also that sea and air communications between Tobago
and Trinidad and beyond should be considerably improved, that the steps to
be taken for achieving this objective should be examined as soon as practicable
and, in view of the circumstances now prevailing, that they be kept under close
review until they can be implemented.
Public Institutions in Tobago
331. We are agreed that reform for Tobago should be centered around
greater autonomy for public institutions without imposing detailed direction
from appropriate departments in Trinidad. But we reject the suggestion made
to us that Tobago should have its own mini-parliament, with power to pass
legislation on purely local matters, and at the same time have representatives
in the National Assembly. We see no need for a law-making agency for so small
a community where enactments would in general be the same as for the entire
unitary State. If it were admissible, a similar case could readily be made for
several remote areas in Trinidad. Nor do we consider that sufficient grounds
were put forward to support the suggestion that Scarborough be raised to the
status of a municipality. The ceremonial trappings of a municipal council
without any additional executive authority would merely add to administrative
costs without improving efficiency.
332. We found merit in the claim that in several instances planning and
the execution of programmes take an exceedingly long time because of the
need to have plans for development programmes in Tobago examined and
ratified (at times initiated) by counterpart ministries in Trinidad. The Tobago
County Council, which derives its authority from the County Councils Ordi-
nance, No. 39 of 1952, is legally unable to act except in limited areas. This local
authority could however be used as the nucleus of a more dynamic and authori-
tative body.
Tobago Regional Council
333. We recommend that the Tobago County Council should be abolished
and replaced by a Tobago Regional Council, consisting of elected and selected
(list) members, with partly executive and partly advisory functions. The
Council should comprise fifteen members elected by a mixed system of propor-
tional representation. Ten members should be elected to represent one each
of ten electoral districts on a first-past-the-post system of election. Five
members should be selected from lists, posted before the elections by the
several political parties to the election, on the basis of a ratio of the seats won
by the respective parties.
334. As an executive authority the Regional Council should carry out those
duties and functions now performed by the Tobago County Council and such
other duties as may be prescribed for county councils. As an advisory body, the
Council would advise the Minister charged with the responsibility for Tobago
Affairs on, and make recommendations in connection with, development plans
for implementation of programmes in Tobago.
335. In order to preserve the independence of its members and to avoid
dominance of the Council by the appropriate Minister we recommend that the
Council should elect its own Chairman. The Minister should not be a member
of the Council, but would be empowered to attend meetings (or to be repre-
sented by his Senior Executive Officer) where he may take part in the debate,
but shall have no vote.
336. We further recommend that provisions for the Tobago Regional Council
should be included in the Constitution.
Registry of Deeds and Issue of Certificates of Birth etc.
337. We were concerned to make some positive recommendation regarding
the registration of deeds and other instruments affecting property in Tobago
and requiring to be registered, and the issue of certificates of births, marriages
and deaths occurring there. The matter calls for closer investigation than we
were able to give it, but-
(a) We do not anticipate any formidable difficulty in the way of issuing
certificates of birth, marriage or death. Our understanding is that
all the statistical information is recorded in the first instance in
Tobago, remitted afer a prescribed period to Trinidad where it is
copied into the master register at the Registrar-General's Office and
then returned to Tobago where it remains finally lodged. But all the
functionaries who are authorised to issue certified copies (which are
the only copies recognized for official, legal or other formal purposes)
are in the Registrar-General Office in Port-of-Spain, hence the
imposition of going or sending for them from Tobago.
(b) As regards deeds and other instruments requiring to be registered,
their priority in effect depends upon their priority of registration.
Normally all such instruments must be registered in the Deeds
Registry in Port-of-Spain where the date and actual time of their
registration are duly recorded. But the Tobago Deeds Ordinance,
Ch. 28 No. 3, provides the facility that, if delivered to the Registrar-
General's delegate in Tobago, he will record the date and actual
time of their delivery to him as being the date and time of their
registration. Our information however is that no public officer has
been appointed to be the Registrar-General's delegate in Tobago
as contemplated by the Ordinance, although a functionary there
apparently acts, without express authority, as if he had been duly
delegated in that behalf.
(c) This provision regarding a delegate suggests an answer to the
problem of issuing certificates. He can be effectually appointed and
then added to the schedule of officers listed in the Schedule to
the Evidence Ordinance, Ch. 9 No. 7, as being authorised to certify
copies of entries in the Register of Births, Marriages and Deaths.
(d) The answer to the problem of the registration of deeds and other
instruments would be rather more difficult. However, in the Deeds
Registry there are Books recording Tobago transactions exclusively.
And in these days it is common to photocopy all kinds of docu-
ments, so deeds can be photocopied; also, there are a number of
other means of recording copies-microfilms for example. This
suggests to ius an avenue of inquiry for finding an appropriate
solution.
Accordingly we recommend that the, whole question should be investigated
by a Committee specially appointed for that purpose. Such a Committee should
be appointed as soon as practicable and its report requisitioned with despatch.
IX THE JUDICIARY
338. Under this head no serious difference arose except in one respect. Every-
one agreed, as we do, that the provisions of the present Constitution are generally
speaking sound. We must have a Supreme Court of Judicature for Trinidad and
Tobago consisting of a High Court of Justice and a Court of Appeal.
Jurisdiction of Judges
339. At present the Chief Justice is ex officio a judge of the High Court and
the President of the Court of Appeal. No other judge is entitled to sit as such
in both these courts. In England, from which our judicial system is largely
borrowed, Justices of Appeal occasionally sit as judges of the High Court in
order to relieve the congestion in the lists. Similarly, we think that, to achieve
greater flexibility in that regard, the practice should be introduced here.
Accordingly we recommend that all Justices of Appeal should ex officio be judges
of the High Court. This does not mean of course that they would normally do
the work of a High Court judge, but only that they would have the jurisdiction
to do so.
Appointment of Judges
340. We have already recommended in paragraph 160 that the Chief Justice
should be appointed by the President acting in his own discretion after consul-
tation with the Prime Minister, the Leader of the Opposition and such other
persons as he may think fit. This would replace the present system whereby the
Chief Justice is appointed by the Governor-General acting in accordance with
the advice of the Prime Minister. It is hoped that the method of appointment we
recommend will remove the office from what appears to be the direct patronage
of a purely political office-holder.
341. As regards the other judges both of the Court of Appeal and of the
High Court, we recommend that the Judicial and Legal Service Commission
should continue as the appointing authority. But we think there should be some
alteration in its composition. The Chief Justice should remain as its chairman,
but we see no sufficient reason why the Chairman of the Public Service Com-
mission should be a member ex officio or why another judge of the Supreme
Court of Judicature should be as a matter of course. We agree that a former judge
of the Court should be a member and think it would be of advantage to appoint
one who has only fairly recently retired. The three other appointees should be in
the discretion of the President after due consultation, and the secretary should
continue to be, as at present, a senior officer in the Service Commissions Depart-
ment fully acquainted with all relevant regulations and procedures.
Age of Retirement
342. Under the present Constitution Justices of Appeal must retire at the
age of 65 and High Court judges at 62. We see no reason for the difference. The
argument was that the work of the High Court is more strenuous physically, so
that the retiring age should be lower. So far as we know, the argument has not
prevailed elsewhere and, although we cannot call in aid the benefit of experience
in Trinidad and Tobago, we see no reason why High Court judges cannot perform
after the age of 62 as efficiently as their colleagues in the Court of Appeal. We
recommend therefore that the retiring age for all judges should be 65 years.
Removal of Judges
343. We recommend the retention of the present provisions dealing with the
disciplining of judges and their removal for misconduct but with one significant
change. We recommend that the report of the tribunal which has investigated
charges against a judge should no longer be sent to the Privy Council for con-
sideration but should be sent to the President who shall act on its recommendations.
When it is borne in mind that the tribunal investigating the charges will be made
up of three persons all of whom are holding or have held office as a judge of a
court having unlimited jurisdiction in civil and criminal matters in some Com-
monwealth country or a court having jurisdiction in appeals from any such court,
there would seem to be no need for a further review of the matter by another
tribunal outside the country.
Appeals to the Privy Council
344. We turn now to the question of appeals to Her Majesty in Council or,
as it is more commonly called, to the Privy Council. These owed their origin
to the historical right of the British subject to appeal for justice to the Sovereign.
Appeals from the courts in Britain were referred to the Judicial Committee of
the House of Lords and those from colonial courts to the Judicial Committee of
the Privy Council. The question now is-should appeals from our courts con-
tinue to go to the Privy Council?
345. The overwhelming view of the organizations and individuals as repre-
sented to us is in favour of retaining such appeals. That too is what the lawyers
want. We had hoped to ascertain the view of the judges, for which purpose
among others we invited them to submit a memorandum to us and/or to provide
us with the opportunity of discussion in private session. Unfortunately, or so we
think, they declined the invitation.
346. In arriving at a conclusion on any issue arising for consideration, we
agreed that we should be guided, but not governed, by what appeared to be the
wish of the majority of the people. Save for two women's groups and three
individuals who advocated the abolition of appeals to the Privy Council, every-
one who wrote or spoke on the subject was for retaining them. We have examined
the reasons they put forward in support and find ourselves unable to accept them.
347. First, it was said that we should continue as at present until a Caribbean
Court of Appeal can be established. The proposal for establishing such a court
has been discussed for years and the indications point, we think plainly, to its
non-acceptance. The Jamaica Bar Association firmly rejected it and resolved to
retain the right to appeal to the Privy Council until they feel sufficiently assured
to vest final authority in their own Court of Appeal. Guyana has already abolished
appeals to any external tribunal and will almost certainly refuse to go back on
their tracks. It seems to us then that there is little hope of establishing a Caribbean
Court of Appeal so long as our Caribbean territories remain politically separate.
348. Secondly, it was argued that in a country as small as ours there is always
a grave danger that personalities and political or other pressures may influence
judicial decision, even if only subconsciously, so that prudence demands the
retention of a final appellate tribunal which cannot be so subjected. The record
of the Court of Appeal since its institution on Independence hardly supports this
apprehension. Of 45 appeals filed up to December 1973, 42 were dismissed; 2
are not yet determined; the 45th was a highly controversial and extremely technical
matter on which opinions are still divided. In fairness however it should be added
that in two of the 42 unsuccessful appeals the Privy Council disagreed with the
Court of Appeal's interpretation of certain statutes but nevertheless arrived at
the same final conclusions.
349. The record shows further that the Government has often been unsuccessful
in important matters which have come before our courts, including issues relating
to fundamental rights and points arising out of mutiny trials. No one has been
able to mention a single case in which it is suggested that the Court of Appeal
has yielded to pressures of any kind, and we are very certain that no one can.
Inevitably, some judges will show greater boldness and initiative than others, just
as some are disposed to be more bound by precedent than others.
350. Thirdly, statements have been made implying that by abolishing appeals
to the Privy Council we will cut ourselves off from the sources of development
of the common law and the interpretation of statutes on many of which our own
are modelled. Nothing can be further from fact. Reports of decisions of the
courts in Britain will continue to be available as a guide, just as reports of
decisions from all other Commonwealth jurisdictions. Indeed, it is becoming
increasingly accepted practice in every Commonwealth court to rely on the
decisions of other such courts-if not as binding precedents, at least for guidance
-and likewise of U.S. Courts since the law they administer is based substantially
on the common law.
351. Also, the view now generally prevails that the common law, which is
of dynamic growth, should be developed consistently with the philosophy of the
society which it serves. That is why many Commonwealth countries rejected
the proposal which was canvassed at the Third Commonwealth Law Conference
in Sydney, Australia in 1965 for the establishment of a Commonwealth Court
of Appeal to take the place of the House of Lords and the Privy Council and to
serve as a final appellate tribunal for the whole Commonwealth. One of the
arguments advanced then, but quite unsuccessfully, was that all Commonwealth
law, being grounded in the common law, would benefit from a common develop-
ment under the aegis of the proposed Commonwealth Court of Appeal to which
would be appointed Commonwealth judges of the highest eminence.
352. In fact, the development of law being rooted in the society in which
it is to apply, we find that Australia, Canada and India, beginning with the
English common law and legal system as we did, have developed their own
doctrines and have not hesitated to differ from English judges of the highest
authority when they were of the view that the decisions given by them were not
correct. In time Australian decisions have been quoted in English courts as
arguments for reviewing English precedents. This is the sort of future we should
envisage for our law. Already there is a decision of the Court of Appeal refusing
to follow that of an English High Court judge on a like issue-and there was no
appeal. Our history therefore supplies no reason for timidity. Our law however
will not develop a local flavour so long as the final word rests with a court which
can have no more than a superficial knowledge of our society.
353. Fourthly, it is said that because of the size of our population we may
not be able to produce a sufficient number of competent lawyers to fill our needs
in private practice, in the public service, as academics at the newly established
Law Faculty and Law School and on the Judicial Bench; also, that the tradition
which exists in Britain of eminent lawyers moving from private practice to the
Bench has not been followed significantly in Trinidad and Tobago. It is therefore
contended that the quality of our appellate court will prove to be unpredictable,
so that it would be wise to maintain our links with a tribunal the excellence of
which can be depended upon and whose services are available free of cost to
the State. We cannot help contrasting this timorousness and sense of insecurity
with the urgency to be independent-to replace the monarchy with a republic,
to control our economy, to seize what are described as "the commanding heights"
in our society, to be in authority in Church and State, to determine our own
destiny and to ensure that decisions affecting the people of Trinidad and Tobago
are made, so far as it is at all possible, by the people of Trinidad and Tobago
in Trinidad and Tobago.
354. Further, the recent establishment in our University of a Faculty of Law
and by the Council of Legal Education in the West Indies of a professional School
of Law will most certainly help in upgrading and maintaining the already high
standards which our courts have set. Errors of judgment will sometimes occur:
that is a human characteristic which is common to the courts in every country
as it is in everyday life. But we can be sure that the psychological constraints
which it is claimed that the right to appeal to the Privy Council provides will be
more than compensated for by the critical academic analysis to which future
judgments will undoubtedly be subjected and which is in all jurisdictions a most
important factor in maintaining the administration of the law at the highest level.
355. Besides, it seems incongruous that we should want to become a republic
and yet look to a monarchical institution for justice from our courts. India,
Pakistan, Nigeria, Ghana and Guyana are among other republics which, while
remaining in the Commonwealth, have disallowed any further appeals to the
Privy Council. And, although retaining the British monarchy, Canada and (in
respect of matters originating in its High Court-its federal court) Australia have
likewise disallowed them. Again we would ask-why the timidity in Trinidad and
Tobago?
356. Finally, the argument based on the absence of cost to the country in
relation to the services provided for it by the Privy Council brings us back again
to the general demands for independence and leads us to wonder whether indepen-
dence becomes meaningless when we are offered dependence without charge.
357. Apart from the above, it should always be borne in mind that the bulk
of cases which come before our courts are within the jurisdiction of magistrates
and that, unless it grants special leave on the ground that a point of great public
importance is in issue, the Privy Council will not entertain any appeal originating
from a magistrate's decision. The decision of our Court of Appeal is otherwise
in such cases final. Only one such case has gone to the Privy Council since
Independence. The special leave of the Privy Council has also to be obtained
to appeal in matters heard at the criminal assizes and in most instances such
leave has been sought on convictions for murder as a last desperate hope of
escaping the sentence of death. Of the 27 criminal matters in which leave to
appeal was sought 17 were on convictions for murder, 5 were mutiny appeals
which are unusual and the remaining 5 were for other offences. Civil appeals for
the whole of the 10-year period following Independence totalled 18 and when
it is considered that the average number disposed of by the Court of Appeal was
as high as 85 a year, it will be appreciated what a very few civil matters
originating in the High Court go on appeal from the Court of Appeal. It appears
to us that our solution must lie, not in the retention of a relatively rarely used
right of appeal to a foreign tribunal, but in the willingness of more lawyers of
competence and integrity to make themselves available for service on the Bench
and in the maintenance of a proper system of selection for such service.
358. Giving every consideration to the arguments advanced by the lawyers
and giving full weight to the strength of public opinion on the question, we
nonetheless recommend that appeals to the Privy Council, whether by right or
by leave, be discontinued and the facility to proceed on appeal from our Court
of Appeal be abolished for the future.
X OMBUDSMAN
359. There was overwhelming support from all sections of the public for
the creation of the office of Ombudsman. The arguments in support indicated
that there was some misunderstanding of the nature and scope of that official's
authority at least in relation to the models which exist to date. Many people
seemed to think of him as a general inquisitor whose job it would be to investi-
gate wrong of any kind and to look into any alleged grievance whether arising
within the public administration or in the private sector or whether falling
within the scope of maladministration or not. Some people seemed to think of
the Ombudsman as an alternative to the Courts supplementing and in some cases
supervising and correcting their work. It is necessary to understand the limita-
tions of the office to prevent the sense of disillusionment which might prevail
if the new office does not achieve all that was hoped of it.
360. It is now generally known that the office originated in Sweden where
the constitutional position is that Ministers are not responsible for the day-to-
day administration of their departments. They issue regulations and give
general directions which are carried out by civil servants who can be called to
account. The civil ombudsman in Sweden is an official appointed by the Parlia-
ment to ensure that the civil service works according to the prescribed rules and
that any acts of maladministration are corrected. The administrative processes
of decision-making are quite open. In Trinidad and Tobago as in the United
Kingdom Ministers are directly responsible to Parliament for the administration
of their Departments. We have not recommended any change in this arrange-
ment.
361. This difference in constitutional structure between Sweden and Trini-
dad and Tobago has to be taken into account in structuring the office here.
We have also developed a tradition of hyper-secrecy in decision-making. The
assumption is that officials will not give honest opinions except when protected
in this way. Usually reasons for decisions are not given. This makes administra-
tive decision-making quite unpredictable. This will make the functioning of the
office of Ombudsman more difficult but we are satisfied that it can perform a
useful function and we recommend that it be constituted.
Powers of the Ombudsman
362. The Ombudsman must be vested with substantial powers since he must
be effective if he is to win the confidence of the people. He should be empowered
to investigate all complaints alleging unjust treatment resulting from adminis-
trative action taken by a government department or local or statutory autho-
rity. We do not recommend that he be empowered, for the time being at least,
to deal with complaints which involve the Police or the Defence Force.
Investigation of the Police and Defence Force may involve matters of security.
When experience has been gained in the functioning of the office, its scope may
be broadened to include this area or a special Ombudsman may be appointed
for these Forces.
363. We do not recommend that the Ombudsman should be empowered to
question a Minister or Parliamentary Secretary. But if in the course of his
investigation it should appear that the action complained of may have resulted
from a policy decision at ministerial level, he should be entitled to call for the
advice tendered to the Minister by his public service advisers before the deci-
sion was taken. Where the Minister accepted and acted upon the recommenda-
tions of his advisers, they can be questioned by the Ombudsman. But where
the Minister did not accept their advice or acted without advice, his responsi-
bility would be made plain and the Ombudsman would so report. This proce-
duie preserves the basic principle of ministerial responsibility to Parliament.
The Ombudsman would not intervene between the Minister and Parliament.
364. The view was put forward that the Ombudsman should be empowered
to investigate general allegations of corruption. We do not so recommend. Each
complaint should be of a specific injustice to a person or group of persons
arising from maladministration, that is to say from errors due to faulty or
perverse judgment or omissions or negligence in the discharge of official duties.
In the course of his investigation the Ombudsman may find proof or evidence
tending to prove that corruption was the cause. In any such case, in addition to
recommending measures to remedy the injustice he would report his findings on
corruption to the relevant authorities for continuation of the investigation and
such action as may be appropriate. He would also be able to follow up the
matter to ensure that it was not allowed to lapse.
The Office of Ombudsman
365. There was considerable discussion over the form which the office should
take. Many argued for a commission of three ombudsmen rather than a single
Ombudsman. There is precedent for this in Tanzania where a similar institution
called the Permanent Commission of Enquiry is made up of a Chairman and
two members. The reasons which led to that decision in Tanzania do not apply
here mainly the size of the country (366,000 square miles); the relatively
scattered population (13,000,000) and the traditional African preference for
placing judicial and quasi-judicial functions in a council rather than in the
hands of an individual. Basically the argument in Trinidad and Tobago was
that a multi-racial society needs a multi-racial institution if that institution is
to succeed. Some complaints may involve charges of racial bias in administra-
tive decisions and complainants may harbour nagging doubts about the capacity
of the Ombudsman to decide impartially if he should happen to belong to the
same racial group as the complainant or the person complained against. We do
not accept this approach.
366. Experience has shown that the society has been able to produce men
of unquestioned integrity and proven impartiality. We do not think that it has
ceased to do so. We confidently expect that an individual can be found who is
obviously capable of filling the office. We are agreed that this country will not
achieve real harmony unless the difficulties in the path of that goal are recog-
nized and positive measures taken to deal with them. It is, for example, quite
sensible to seek to achieve a reasonable balance in the overall distribution of
offices in the State so that no racial group can legitimately complain of dis-
crimination. It is quite a different matter to structure an institution on the
explicit assumption that no citizen of Trinidad and Tobago can exclude race
as a factor in the decision-making process.
367. Even if a 3-man commission were set up there would still be the possi-
bility that it could be dominated by a strong chairman. There would be the
problem of majority decisions. Should any member of the Commission be free
to disclose his dissent? If he was allowed to do so, the institution might be
seriously weakened in the early days when its reputation is being slowly built
up. The diffusion of responsibility resulting from the fact that there was a
Commission of three persons would not necessarily make for strength and
independence. There is an equal likelihood that decisions may be made to
accommodate the weakest of the three.
368. There may be a question as to the volume of work because of the num-
ber of complaints. But this can be solved by recruiting adequate staff. Wherever
the institution has been successfully transplanted its growth has resulted
largely from the personality, energy and good sense of the first holder of the
office. New Zealand and Tanzania are examples of this. We recommend there-
fore that there should be one Ombudsman.
Qualifications for holding the Office
369. There has been a tendency to think that a legal qualification would be
an advantage to the holder. This need not be so. Expertise in administrative
matters would be perhaps even more important since legal advice can always
be sought. The Ombudsman should be a person of known independence, proven
integrity and persuasive ability whose reputation will lend prestige to the office
in its formative days.
Appointment to the Office
370. The Ombudsman is historically an officer of Parliament. To emphasize
this connection we recommend that he should be nominated for appointment
by the President and appointed after approval by a three-fifths majority vote
in the National Assembly. We recommend a three-fifths majority because a
simple majority may make him appear to be the Government's nominee. There
is the possibility that the Government of the day may, by persisting in main-
taining a deadlock, block the appointment of an obviously suitable candidate
who it is feared will fill the office too well. This is an issue on which public
opinion can make itself felt, and our expectation is that such a problem will
not last long if it does arise. The method seems superior in principle to placing
the power in the hands of the Executive after consultation with the Opposition.
The parliamentary source of the authority of the office should always be
stressed.
Term of Office
371. We recommend that the Ombudsman should hold office for 5 years and
should be eligible for re-appointment. We envisage that the appointee will
normally be a person who has had a successful career and earned a reputation
in some other field so that there will be no need to make the office a career
appointment as in the public service. His emoluments should be the same as
for a Justice of Appeal and should be charged on the Consolidated Fund.
Removal from Office
372. Provision for the removal of the Ombudsman should be the same as for
removing the Auditor-General. There should be a resolution in the National
Assembly calling for an investigation of the charges made against him. The
charges must be set out in sufficient detail and the resolution passed by a two-
thirds majority of the members of the National Assembly. The President after
consultation with the Chief Justice would then appoint a tribunal of three
persons one of whom must be a judge of the Court of Appeal who shall be
named as Chairman. The tribunal will recommend to the President whether the
Ombudsman should be removed or not, and the President must act on that
recommendation. Once the resolution for an investigation has been passed by
the National Assembly the President must suspend the Ombudsman. During
the absence of the Ombudsman from office for any cause the President after
consultation with the Prime Minister and the Leader of the Opposition should
appoint someone to act until his return or replacement.
Investigations by Ombudsman
373. Normally the Ombudsman would act only upon a complaint made to
him. This should be in writing and signed to establish good faith. But com-
plaints could be made directly to his office where they would be reduced to
writing. Illiterates could have their complaints written for them and witnessed
by a person who can write and is able to identify the complainant. The Ombuds-
man should be free however to initiate an investigation where facts come to his
notice which seem to merit this course.
374. We recommend that the role of the Ombudsman should be purely
investigatory. He should not hold formal hearings. Once it became clear that
disciplinary charges might have to be laid against any official the Ombuds-
man should forward the result of his investigations to the appropriate Service
Commission or other authority so that the prescribed procedures for disciplinary
matters could be followed. Remedial action to cure the injustice which led to
the complaint should be pursued independently. Since we do not contemplate
that the Ombudsman will ever hold formal enquiries in the nature of a hearing,
we do not recommend that any person whose complaint or decision is being
investigated should be represented by counsel.
375. If the Ombudsman should decide not to investigate a complaint because
it is a matter outside his jurisdiction, he should inform the complainant as soon
as practicable of both his decision and his reasons for so deciding. If he has
conducted an investigation and finds the complaint unjustified or such as for
any reason to call for no redress, he should likewise as soon as practicable
inform the complainant of both his decision and his reasons for so deciding.
But if on his investigation he finds the complaint justified and that it calls for
some action by way of redress, he should take the following steps or such of
them as may be necessary -
(a) bring the matter to the attention of the Permanent Secretary
or other Head in the Department out of which the complaint
arose and propose to him such form of redress as he may recom-
mend; in default of a satisfactory conclusion,
(b) report the matter to the Minister in charge of the Department
for such intervention as may be recommended; in default of a
satisfactory conclusion,
(c) report the matter to the Prime Minister for his intervention;
and in default of a satisfactory conclusion,
(d) report the matter to the National Assembly through the Speaker.
In any such case, the Ombudsman should inform the complainant that he is
giving active attention to his complaint and, in the event of no redress being
granted upon reference as far up as to the Prime Minister, he should notify
the complainant of his intention to report the matter to the National Assembly.
376. We considered whether a fee should be payable for filing a complaint
with the Ombudsman. It seemed to be a useful method of deterring frivolous
complaints if it were not fixed so high as to create hardships for the genuinely
poor. On balance, however, we do not think a fee is justified. The citizen must
be encouraged to feel that the institution has been created to deal with his legi-
timate complaints and is ready to do this without let or hindrance. It may
result initially that there will be many unfounded complaints but, as experience
has shown, the limits of the Ombudsman's powers will in time be understood
so that the number of complaints will become manageable.
377. We recommend that the Ombudsman make an annual report of his
activities to Parliament but if he should at any time think it necessary, he
should be entitled to submit a special report. All reports will be submitted
through the Speaker.
Staff
378. Subject to the National Assembly approving the number and grades of
his staff and the emoluments payable to each, we recommend that the Ombuds-
man be given full control over their appointment and discipline. Regulations
should prescribe disciplinary procedures. This is important as the Ombudsman's
staff must assist him in his investigations. If they remain within the jurisdic-
tion of the public service, they may not develop that sense of independence of
it which will be required for objective examination of decisions by public
officers. The Ombudsman should be free however to recruit any of his staff
from the public service if he should so decide, but any officer so recruited
should be taken on secondment subject to the approval of the Public Service
Commission.
M79. We recommend that the creation of the office of Ombudsman, the
method of his appointment, the terms of his tenure of office, the provisions for
his removal and the general scope of his powers should be set out in the Con-
stitution. The other matters should be provided for by statute. Indeed before
our appointment to this Commission the Government had published for public
comment a draft Ombudsman Bill but, at our request, refrained from taking
any further step with regard to it until we had reported. We would accordingly
propose that this Bill be redrafted to give effect to our recommendations.
XI- SERVICE COMMISSIONS
380. The importance of the public service in the effective management of
Trinidad and Tobago cannot be overestimated. Much of the information
required for the formulation of policy has to be collected and organized by
public officers for presentation to the political decision-makers and the method
of presentation can influence the decision. When policy is once decided upon,
its implementation depends largely on the skill and dedication of public officers.
They are therefore very much a part of government.
381. In the period pre-dating full internal self-government, total identifica-
tion of the public officer with the political administration produced no contra-
dictions because the political administration never changed except in so far as
one Governor replaced another. And to many the role of the Governor as the
local fountain-head of political authority was never very obvious. He appeared
to be merely another public servant. Through his senior subordinates he was
responsible for the management of the public service, ensuring that it was from
his point of view an efficient instrument for carrying out the policies which he
had been instructed to carry out. His role in that respect was never regarded as
interference with the public service.
382. With full internal self-government, and subsequently independence,
complications were inevitable. The political administration could now be subject
to sudden change. The opposition critic of one day could be the government
Minister of the next. Yet, if the administration was to be a success, the public
officer had to be responsive to the policy demands of whatever government
might be in power and show equal skill and dedication in their implementation.
Understandably the political administrators would wish to have some say in
the management of a machine the proper operation of which was important
for their success. Any attempt to do this might very well savour either of
victimisation or of favouritism.
383. The solution to this problem adopted in the present Constitution was to
create independent Service Commissions to which was entrusted the power to
appoint, transfer, promote and discipline persons in the public service. This
was intended to insulate public officers from direct political influence. Thus
protected, they would be free to serve any political administration with equal
dedication. This structure appears to have worked well and we recommend that
it should be continued. We accept also that the political authorities have a legi-
timate need to exert some influence on the management of the public service
to ensure that it is efficient and responsive. For this reason we recommend
the retention of the Prime Minister's veto over appointments to certain top
posts in the service. These have been set out in the chapter on the Executive.
The Commissions and their Jurisdiction
384. We discussed the workings of the Service Commissions with their
Chairmen and members. They suggested certain administrative modifications
which seem to us sound. We recommend therefore that the Police Service
Commission be renamed the Protective Services Commission and that the
Fire Service and Prison Service which now fall under the jurisdiction of the
Public Service Commission be transferred to that Commission. These three
services-Police, Fire and Prisons-are subject to special regulations not appli-
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