CONSTITUTION COMMISSION OF TRINIDAD AND TOBAGO
January 22, 1974
CONSTITUTION COMMISSION OF TRINIDAD AND TOBAGO
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CONSTITUTION REFORM COMMISSION
by M. G. SINANAN
"The Constitution of a country is either the product of its history and the
embodiment of the genius of the race or it is an instrument designed by the
framers in accordance with their conception of what is best suited to meet the
needs of the country."1
The existing Constitution of Trinidad and Tobago fully satisfies these
criteria. It is a logical development conditioned by history and tradition. It
embodies the ideals and aspirations of our people. It is comparatively short
flexible and capable of growth with experience. It is a living organism based on
the system of Western Parliamentary democracy.
Trinidad and Tobago has received an inheritance from the period of
British rule. She has taken full possession of it and has adapted it to her own
At the opening of the Trinidad Independence Conference in London in
1962 the Prime Minister (Dr. Eric Williams) spoke in clear and unmistakable
"The Independence Constitution of Trinidad and Tobago is not an abstrac-
tion .For a century and a half the dominant political issue in the
Western Hemisphere! in its southern section has been the survival of
democracy. Democratic forms and democratic practices have traditionally
had to contend against subversion, either from military juntas or from
civilian conspiracies. The Independence Constitution of Trinidad and
Tobago must therefore reflect the responsibility of Trinidad and Tobago
for the realisation of the ideals of the Western democracies and the Com-
monwealth in particular, with emphasis on the protection of basic human
rights. In the final analysis this is a matter not only for political parties in
parliament but the vast mass of the citizen body in their reputable organi-
sations, whether economic, social, cultural or religious. To this problem
our constitutional exercises at home have given the fullest recognition."
His reference to the Commonwealth here would no doubt include countries
such as India, Malaya, Ceylon, Mauritius, Fiji, Malta, Jamaica, Barbados and
Guyana which have all adopted the essential features of the Westminster
model of parliamentary democracy.
"In short the Westminster model of responsible government has been
adopted primarily because it has been persistently and insistently
demanded. It has been demanded partly because it is familiar to colonial
politicians, partly because they genuinely admire the way it works in
Britain, partly because they have sometimes been told that they lack the
1 The Constitution of India by G. N. Joshi :
political maturity to operate it effectively, partly because it makes for
strong government if a single party is dominant."'
Shortly after the Independence Conference of 1962 the Leader of the
Opposition addressed Parliament. He expressed the views of the Opposition in
words of matchless eloquence. Dr. Capildeo said inter alia:
"It is fitting that at this historic moment Independence is heralded with
the adornment and lustre of British Parliamentary democracy and that it
is dedicated to the British Parliamentary traditions. Every such dedication
is a barrier which evil minds will have to sj nnmount in order to advance into
In the same year Mr. Norman Manley. then Prime Minister of Jamaica
struck a similar note when dealing with the question of an Independent
Constitution for Jamaica'.
"We are familiar with the type of government that has influenced most of
the government of the world and this system of parliamentary government
which over the centuries has been evolved by the British people who
certainly have displayed the most unique genius of any people in history
for devising a form of government acceptable to people. And I make no
apology for the fact that we did not attempt to embark upon any original
or any novel exercise for constitution-building.
We had a system which we understood. We had been operating it for many
years with sense. It is a system which has endured in other countries.
for generations successfully. It is a system which is consistent with the sort
of ideals we have in this country and it was not difficult to decide that WL
would follow that familiar system with tho-e modifications we thought the
circumstances of Independence deserved."
If the present Constitution was framed on the British model it was not
because the two major parties decided on theoretical grounds to reproduce
that model but because Government had long been conducted on British
principles and had already grown into general conformity with British practice.
The hypothesis on which they proceeded and the one most in accordance with
our constitutional history was that the future government of Trinidad and
Tobago will be successful in proportion as it represents not a new creation
substituted for an old one but the natural evolution of an existing government
and the natural extension of its past tendencies.
This doctrine of self-government by evolution was accepted by a former
Constitutional Committee established in 1947-48 under the Chairmanship of
Sir Lennox O'Reilly, K.C. The terms of reference were:
"To consider the reform of the Constitution and to submit proposals to be
forwarded to His Majesty's Government for a new Constitution having
SThe New Commonwealth and its Conlilution by S. A.. De Smih :
2 Trinidad Hansard, 31st August, 1962:
s Jamaica Hansard, 1961- 1962 p. 719
regard to the fact that (a) within recent years certain Colonies have been
granted constitutions which place them ahead of Trinidad and (b) it is
necessary that, in keeping with the spirit of the times, the people of Trinidad
and Tobago should be more fully associated in the management of their
In a Majority Report the Committee stated:
"The majority of the members whilst recognizing the sincerity of the views
of those members who feel that the recommendations do not go far enough,
nevertheless express their own views equally strongly held that
it is only by hastening slowly; by trial and error; and by compromise
between conflicting points of view that a colony like Trinidad can advance
along the path of self-government, and consider that their recommenda-
tions, if accepted, will be a notable advance along that path. In particular,
the majority of the Committee are of the opinion that at this stage in the
constitutional development of the colony, it would be unwise to do away
altogether with the nominated element in the Legislative Council."
It is interesting to recall that Sir Hugh Wooding was a leading member of this
Committee and signed the M ijoirity Report.
The existing Constitution was intended to be an enduring document not a
temporary, pragmatic instrument written to serve the purposes of the State
during a certain stage of its progress.
This point was effectively made by Sir Hugh Wooding at the Queen's Hall
Conference in April 1962.1 Speaking on behalf of the Bar Association he said
"Those of us who witnessed the scene that we witnessed here yesterday
will not easily forget it and will appreciate how difficult it must be to have
any proper consultation at the present juncture, and if we were building
a Constitution which was to last for five years or perhaps even ten years I
would take the view which was expressed by Sir Errol Dos Santos and was
accepted, I think, by Mr. Tull of the Communications Workers' Union,
that we should forget any idea of consultation at all. But we are not
making a Constitution for five years or even ten years. We are making a
Constitution which we trust will continue in being for quite a long time.
We are; not expecting that we will have amendments or alterations to our
Constitution at regular intervals and consequently we are trying to look
forward into the future, to put on paper a Constitution which will be accep-
table for as long a period as possible."
This principle so ably advanced by Sir Hugh was universally accepted at
Queen's Hall and implemented at Marlborough House in May 1962.
The Constitution Commission was appointed to review the present Consti-
tution. Was it necessary to dismantle the whole constitutional edifice? Through-
out the proceedings of the Commission I am not aware that any credible evi-
dence was adduced to show that the present Constitution was a proved failure
1 Verbatim Proceedings on Draft Constitution held at Queen's Hall, Port-of.Spain,
25th.27th April, 1962 :
or that there was a break-down of the constitutional machinery which would
justify the drastic and radical changes proposed in the Majority Report.
Several of the proposals, recommendations and conclusions contained in the
said Report are wholly unrealistic and retrogressive. The contents of a Consti-
tution are determined not by theories of the nature of constitutional law and its
relations with administrative law but by the political circumstances of the
The Majority Report states:
"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."
I am astonished at this argument. It may be admired as an cpercise in special
pleading rather than as an instance of historical objectivity. Even constitu-
tional lawyers are not permitted to substitute rhetoric for reality.
The success of a Constitution depends indeed far more upon the manner
and spirit in which it is worked than upon its formal provisions.
"No constitution written or unwritten is worth more than the political
temper of the community allows it to be worth. The best of paper constitu-
tions is worthless if applied to an unstable, divided or intolerant com-
munity. The worst of paper constitutions can evolve into something better
in the right political atmosphere. It would be wholly wrong to suppose
that a written constitution was inevitably more static than an unwritten
one or that an unwritten constitution was necessarily the more capable of
growth. The most superficial knowledge of American and British history
demonstrates that the capacity for constitutional development depends
not on whether a constitution is written (the American) or unwritten (the
British) but on the political spirit of the nation."2
I claim for the Constitution neither infallibility nor perfection. Having
regard to its historical evolution and development, it is respectfully submitted
that the transition from Monarchy to Republic can be achieved without any
major disturbance of the existing constitutional structure. The Majority Report
does not seek to achieve this objective.
I propose now to enumerate the issues upon which we are divided.
The Making of a Dominion Consilulion by Sir Ivor Jennings -- Law Quarterly 1949:
2 "The Power of Parliament" by Ronald Bun:
I do not agree with the abolition of the Preamble.
Let it be said at once that a preamble to a Constitution which is not itself
part of the Constitution and therefore not part of the law, is not only permis-
sible but even desirable. The preamble to the present Constitution is expansive
"But while a preamble is right and proper, it is worth remarking that a
Constitution is first of all a legal document. It is intended to state supreme
rules of law. It should confine itself, therefore, as completely as possible to
stating rules of law, not opinions, aspirations, directives and policies. More-
over, if it is to state rules of law, and if in particular, those rules are to
constitute supreme law, binding the legislature equally with the executive
and judiciary-and this is the avowed intention of most constitutions as
we have seen-then these rules should be few, they should be general and
they should be fundamental.
They should relate to subjects which it is fitting and proper to attempt
to describe and regulate in terms of a rule of law. Finally, the language
employed, though inevitably general and wide in some matters, should at
the same time avoid so far as possible the ambiguous, the emotional and
1 Modern Constitutions by K. C. Wheare
Election of the President
In my respectful submission. the President should be elected by a simple
majority at a joint sitting of both Houses of Parliament. He should br elected
for a five year term of office and be eligible for reflection.
I reject the recommendation of the Majority that the President should
be elected by an Electoral College composed of the members of the National
Assembly and the members of the City, Borough and County Councils. The
precedent for this is taken from the Constitution of India.
My opinion has been effectively stalctd at an earlier stage of the proceed-
ings of the Commission.
"It has been suggested in Trinidad and Tobago that nii.mbers of the
County Council could be substituted for members of the State Li.gisla-
tures. There can really 1ie no comparison between the County Councils
in Trinidad and Tobago and the States of India and to adapt the system in
this manner seems somewhat artificial. It has been argued that giving
County Councils a vote in electing the Head of State would considerabh!
increase their status and the respect which would be afforded to them. Thi-
is doubtful. In an important matter such as the election of a President.
it would be clear that the members of the Electoral College would be acting
under party orders and the County Councillors would not he free to
exercise their own judgement nor would they be likely to influence the
It is relevant to observe here that despite the existence of an Electoral
College in India, every President of India, since Independence has been a candi-
date of the ruling Congress Party. In other words, the existence of an Electoral
College becomes irrele\aut if the ruling party possesses an overwhelming
In the Republics of Guyana and Singapore. the President is elected by
Parliament. In the Republic of Ceylon (Sri Lanka). the President is nominated
by the Prime Minister.
Power and Duties of the President
In my view the President should be given power in his own deliberate
judgement after consultation with the Prime Minister and the Leader of the
Opposition and with any other persons and organizations as he thinks fit to
appoint persons to the following offices:
(1) The Chief Justice
(2) The Auditor General
(3) The Chairman and M.ii.h-r. of the various Service Commissions
(4) The Chairman and Members of the Boundaries and Elections
(5) The Attorney General
(6) The Ombudsman
(7) Ambassadors, High Commissioners and other Heads of Mission
(8) Senators after consultation with appropriate organizations.
I do not agree that any office of a national character should be referred to
the National Assembly for approval.
Removal from office of the President
I submit that the provisions for removal from office (Art. 53 and 54 of
the Draft Constitution) ought to be deleted entirely. They are unnecessary,
and may easily be abused in practice.
There is no justification for the creation of this post. In the past, whenever
it became, necessary to appoint someone to'act for the Governor-General, no
difficulty was experienced in obtaining a suitable candidate.
If the President is unable to act due to absence, illness or any other cause,
provision ought to be made in the Constitution for the Prime Minister to
nominate a suitable person after consultation with the Leader of the Opposition.
In the Republic of Ceylon (Sri Lanka) the Prime Minister has power to
nominate someone to act for the President if the latter is prevented by illness
or absence from performing his duties.
The Speaker of the House could hardly be expected to discharge his
duties impartially if he becomes a part of the Executive.
The majority of organizations and groups which appeared before the Com-
mission supported the retention of the Senate. Despite this demand the
Majority Report recommended the total abolition of the Upper House.
The Senate was established as a result of a recommendation of a Select
Committee of the Legislative Council appointed in pursuance of a resolution
of the Council passed on the 21st November. 1958, to make recommendations
for a new constitution for Trinidad and Tobago. The members of the Select
Committee were drawn from the People's National Movement, the Democratic
Labour Party and the Butler Party. It can fairly be said that the members
of the three groups had been in the House for some time and had had practical
experience and knowledge of the working of the Constitution.
After enquiry and evidence the majority of the members recommended
the creation of the Senate.
At the Constitutional Conference in London in 196,, both parties agreed
to the retention of the Senate in the Independence Constitution. The Senate is
just 1, years old and in my view has worked reasonably well.
During the period when the Opposition Members injudiciously boycotted
Parliament, it is fair to state that the members of the Senate carried out the
duties and functions of an Opposition. In addition, an Independent Senator
was appointed Chairman of the Public Accounts Committee, perhaps the most
important Standing Committee of Parliament. In the absence of the Opposition.
members of the Senate severely criticised the Public Order Act. and the Sedition
In November, 1973. the Senate distinguished itself in a debate on the Water
and Sewerage Act 1965. Led by Independent Senators, the Bill was attacked
and, on a division, the Government was defeated by a majority. This was the
first time in its history that the Senate had successfully blocked legislation
which was generally considered to be against the public interest. Public opinion
strongly supported the action of the Senate.
The criticisms which have been directed against the Senate are familiar.
Similar strictures have been levelled against the Senates of India, Australia,
Canada, America and the House of Lords in the United Kingdom.
"All institutions have their critics and the House of Lords is not exempt.
These allege long-windedness, a lack of urgency and sense of reality. Critics
point also to the high average age of the members and concluded that this
reflects a lack of modernity in thought, approach and attitude."'
The Chief Election Commissioner of India has written of the Indian Senate:
"It was hoped that the Senate would be a place where hasty and contro-
versial legislation could be examined in an atmosphere detached from the
imperatives of partisan debate. As yet however its members appear to have
been closely bound by their sense of indebtedness to the party responsible
for their selection."
SBritish Constitution Made Simple by Colin Padield
The Majority Report states that '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 figure until Dr. Eric Williams
This statement is historically inaccurate. In January 1955 a Constitution
Reform Committee was appointed by the Governor under the Chairmanship
of Mr. Ashford Sinanan, then Acting Speaker of the House. The Committee
consisted of all the elected members of the House, together with a number of
public figures. In the same year the Committee reported that "it was felt also
that it was too early to depart entirely from the framework of the old Consti-
tution which had proved to be a workable one and one suited to the Country
in its present state of development. This feeling was particularly reflected in the
decision to retain the nominated element in the Legislative Council without
any decrease in their number. The value of the services of the nominated
members in the last Legislature was given recognition although it was generally
agreed that ultimately that element should be removed entirely or put into
Mr. Edwin Duval an elected member of the House submitted a Minority
Report in which he recommended "an Upper House comprising nominated
members and officials with limited powers."
The Party of Political Progress groups submitted a memorandum to the
Constitutional Committee advocating the establishment of an "Upper House
which should consist of twelve members."
Arising out of the report of this Constitution Committee of 1955, the
Governor, Sir Edward Beetham sent a despatch to the Secretary of State for the
Colonies in December 1955 in which he stated inter alia :
"The majority of the Committee have recommended that Trinidad should
for the present retain the single chamber type of constitution. But as you
will appreciate from a petition which has been submitted to you separately,
there is considerable feeling in favour of having both an upper and a lower
House. I am sure that in present circumstances the Committee's decision
to adhere to what has been the traditional practice in Trinidad is wise
and sound. I do not attempt to forecast the future and it may well be that
at a later stage an upper house will be thought necessary in order to provide
the safe-guards and assurances to minority groups and interests who are
unlikely to achieve representation in a fully elective house."
The Majority Report finally states "that the history of the Senate over the
past twelve years has not been particularly distinguished. A few of the Inde-
pendent 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."
If this criterion is applied to the performance of the Opposition from 1966
onwards then logically the latter ought also to be abolished.
I have no hesitation in saying that the recommendation of the Majority
Report is totally unacceptable. The Senate should be retained and reformed
and it ought to be given wide investigatory powers such as the Specialist
Committees of the House of Commons.
The Senate ought to be constitutc.:l as follows :-
(a) Twenty percent of the members to be nominated by the President
from the representatives of economic, social and community organisa-
tions (after consultation with such organisation.);
(b) Thirty percent of the members to be nominiatkd by the Leadi-r of the
ic) Fifty percent of the members to be nominated by the Prime Minister.
'The Senate is valuable not for what it does hut for what it could do..
:;* '* .
The Privy Council
I am strongly in favour of the retention of the Privy Council. The over-
whelming majority of organizations and individuals supported this view before
the Commission. Both branches of the Legal profession resisted any suggestion
The case for retention was strongly argued in a memorandum submitted
by a group of four Lawyers. The Memorandum states inter alia :
"However self-confident we may feel that Trinidad and Tobago (or "the
Caribbean") is capable of operating this system satisfactorily through its
own judicial and legal personnel, we consider that it would be a conceit
to deny ourselves access to the Privy Council for final adjudication in
appropriate cases. It would be an extravagance to cut ourselves off from
the source of our law and from the contemporary evolution of a legal system
whose relevance and value to our affairs we consider to be unquestionable.
The Privy Council gives us the opportunity to benefit from, and contri-
bute to, a common pool of Case Law, and to keep in touch with the devel-
opment of a variety of similar legal systems. Further, we consider that we
should continue to participate in a forum where, increasingly, more Com-
monwealth jurists adjudicate and whereby, consequentially, an instructive
and formative fund of Commonwealth jurisprudence can be shared. On any
objective evaluation, it must be acknowledged that the Privy Council is far
more likely than would be any local or regional Appellate Court which we
could create, to be staffed consistently and continuously with the high
quality of Judge which is desirable that a final Appellate Tribunal should
have. We doubt that there could arise in our region a sufficient quantity or
variety of litigation to justify the expense of maintaining our own final
Appeal Court, or to keep its Judges busy who would incidentally no
longer be available for service in areas where they might become fully
occupied. In addition, from a purely economic point of view, the enormous
cost of setting up a Tribunal to replace the Privy Council cannot be justi-
fied at this time. The Privy Council costs us nothing, since it is supported
by the British taxpayer. To stand aloof from the Privy Council at this
stage in favour of a "local jurisprudence" is in our view, an attempt to
rationalise a political desire to remove ourselves from what was our
For these reasons we recommend most strongly that Appeals from our
jurisdiction to the Privy Council should not only be retained but their
retention should be most jealously guarded from assault from any quarter,
whether or not Trinidad and Tobago calls itself a monarchy or a republic
-an issue incidentally, which we consider, as far as the Privy Council is
concerned, to be irrelevant."
It is appropriate here to refer to the observations of His Lordship The
Chief Justice Sir Isaac Hyatali in his address at the opening of the Law Term
on 3rd October 1973.
Referring to the future of the Privy Coucil. The Chief Justice said inter
"It is well known I believe that there has been much agitation in the
Commonwealth Countries of the Caribbean in recent times for the establish-
ment of a Caribbean Court of Appeal to replace the final jurisdiction of the
Privy Council in appeals from these countries. In fact there are strong
voices which advocate the abolition of appeals to the Privy Council
irrespective of whether or not a final Court is established in the Caribbean
to take its place.
In my view, the establishment of a Caribbean Court of Appeal is a con-
siderable distance away and it may well be that its establishment in the
foreseeable future is somewhat remote. I am therefore proposing for the
consideration of the Judiciary and the legal profession here and in other
Caribbean countries that pending the establishment of the proposed
Caribbean Court of Appeal, the Judicial Committee should be -
(a) expanded to include within its ranks distinguished judges and
jurists of Caribbean countries and possibly elsewhere in the
(b) converted into an itinerant court sitting at appointed times in
at least three centres in the Caribbean.
The proposal I make however should be made subject to the following
(a) The judicial services rendered by the Privy Council should no
longer be free. The countries from which an appeal lies to the
Privy Council should pay an appropriate proportion of th--
expenses necessary to render this judicial service; and
(b) Appeals should be heard by not less than three or five judges.
at least two of whom (il it is a Court of three judges) or
three of whom (if it is a Court of five judges) should be selected
from among judges or jurists or both from Caribbean countries
and or territories.
The intention of this proposal is to seek to establish what I might describe
as a new model Privy Council-a transitional final Court if you like -
in which the experience and wisdom of distinguished British Judges will be
married to those of distinguished Judges and Jurists of the Caribbean
countries for the purpose of providing a respected and impartial court of
merit, authority and distinction in an area which not only has a rich com-
mon law background but which is seeking to win wider recognition of the
merits of its judicial officers and jurists in territories outside and beyond
If this proposal receives the support of the legal profession and the Judi-
ciary here and elsewhere then it seems to me that the support of Govern-
ments here and elsewhere will not be difficult to obtain. And if that is
obtained then I believe, and I have good reason to so believe, the British
Government will receive the proposal with much sympathy and under-
The proposals of the Chief Justice received powerful support from Lord
Denning, Master of the Rolls and one of the most eminent Judges in the
Commonwealth. In a speech at Queen's Hall last January, Lord Denning
advocated the retention of the Privy Council. He was in favour of the Privv
Council becoming an itinerant Court sitting at appointed times in the Carih-
bean and the inclusion within its ranks of distinguished Judges and Jurists of
the Caribbean. He referred to two leading cases showing the contribution the
Privy Council had made to our jurisprudence.
Election and Boundaries Commission
It is my view that the provisions in the existing Constitution should remain
untouched. To attempt to put politicians on the Boundaries Commission is a
retrograde step. At the London Constitutional Conference in 1962 all parties
agreed that the Election and Boundaries Commission should be independent
and free from political control. In addressing the delegates at the London Con-
ference the Secretary of State for the Colonies said :
"The second point which I have in mind is elections and the conduct of
elections. I have thought a great deal about what has been said to me
on this and I cannot help feeling that it is wrong in a constitution to try
and specify in detail the methods of holding elections. But the principle
of the way in which elections are held and supervised is very important.
Mr. Fraser has talked to me about this and gone into it a good deal and I
think that the best way of making elections and the method of elections
not merely fair but obviously fair (which is the important thing) is to
keep their conduct free from political control. We have been looking
through the precedents for this and there is a number of them for
example in Sierra Leone, Tanganyika, Nigeria and Malaya, where there
is an independent Elections Commission."
The Secretary of State proceeded to add that:
"The question of the appointment of members of the Election Commission
is important. I think it should be understood that they are to be people
outside politics and that they must be appointed by the Governor-General,
acting on the advice of the Prime Minister."
There is only one change I wish to suggest under this heading, that instead
of two separate Commissions there should be one commission to be termed the
Elections and Boundaries Commission completely insulated from political
influence and control.