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Is constitutional reform necessary?
Posted: Sunday, October 11, 2009

By Derren Joseph
October 11, 2009

On the 30th of September, I attended a forum at The University of the West Indies (UWI). As I listened to the exchange of ideas, one thing became clear to me: no one in the room seemed in favour of the existing draft being circulated. Just to be clear, I am talking about the Working Paper on Constitutional Reform for Public Comment, and not the Principles of Fairness Draft Constitution. Both, however, are available on the Parliament's Web site: "". The UWI forum was quite popular. It was a small space, so there was standing room only. A member of the UWI panel mentioned, however, that attendance at previous public fora or "town hall" type meetings had been quite small. The situation on-line is not much different. There is much debate, but from relatively few people. Not surprisingly, most are not in favour of the draft currently being circulated. One thing seems clear, though. There are many who do seem in favour of some kind of reform.

This makes sense. After all, things change. Changes occur within a society, as well as internationally. Laws must, therefore, change to help societies adapt to emerging circumstances. Reading about the US Constitution on-line, I read that 10,000 amendments have been introduced to Congress. Obviously, the majority do not progress, as there are only 27 amendments to the US Constitution. As a Francophile, I decided to read up a bit on France. From what I can tell, there were six or seven different constitutions during the revolutionary era (1791 to 1804). There were also six major changes during the 19th century and five in the 20th century. The last change, in 1958, saw the replacement of their parliamentary government with a semi-presidential system. This semi-presidential system heralded the emergence of what they call the Fifth Republic. The French are definitely not a nation that shies away from change. To be honest, I do not really have any definitive opinion on the draft constitution in circulation. In terms of training, I may have two Master's degrees, but they are not in law, so I recognise the need to be very open-minded. My intention is to attend some of the meetings when Dr Ghany's team is activated to hear various views.

In addition, I hope to speak to some people I know who have a legal background, as I seek to consider constitution reform over the coming months. On-line, I managed to find excerpts from some of the Prime Minister's speeches, delivered during the recent series of education meetings. In his Point Fortin lecture, the Prime Minister gave the following example which he believed betrayed one of the potentially dangerous problems with the existing constitution. Suppose the Cabinet decides to institute a state of emergency, and the Prime Minister asks the President to declare one. Does the President have the authority to say no? If the Cabinet ignores the President's wishes, and declares a state of emergency, would the Cabinet/Prime Minister be acting "ultra vires" the constitution? Carrying the example further, suppose both the President and the Prime Minister ask the Chief of Defence Staff to carry out contradictory instructions? Remembering that the President of the Republic is also the Commander in Chief, who should the armed forces obey?

In school, I learnt that the President was purely a ceremonial role. But as I listen to the debate, it seems as if he has very real powers. The President can appoint a Chief Justice, the Public Service Commission Chairman, and all the members, the Teaching Service Commission, the Auditor General, and so on, and so on. It appears as if some part of the debate is whether this role, which has so much power, including that of Commander in Chief of our armed forces, should be someone who is voted for by you and me?
Or should this continue to be someone merely indirectly appointed? It sounds as if we have been lucky so far to have prime ministers and presidents who appear to get along with each other. The concern would come the day they seriously fall out. We owe it to ourselves to check out the Web site, read the document and follow the debate. It is called Working Paper on Constitutional Reform for Public Comment. So it is still a work in progress, and, thank God, we live in a country where we are free to debate it openly.

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