Altering Our C onstitution
By Dr. William Para Rivière Attorney-at-Law
A Constitution may be altered in many ways. One Constitution may be wholly replaced by another. Among Caribbean examples, the Trinidad and Tobago Independence Constitution of 1962 was wholly replaced by that of 1976, by which the twin-island nation abandoned its status as a Monarchy and became a Republic. Guyana did the same when in 1980 it replaced its Independence Constitution of 1966. And in Grenada, following the overthrow of the Eric Gairy regime the Constitution was suspended and replaced by People's Laws until the revolutionary government collapsed and the Constitution was restored.
A Constitution may be changed, further, by direct amendment, that is to say, by either the removal of certain words and phrases and the insertion, instead, of other words and phrases. Or, by the insertion of new words or phrases without the removal of any. Trinidad and Tobago amended its Independence Constitution in 1964, Guyana in 1969, Barbados in 1974, then, Jamaica, and, then, St. Lucia. As to Dominica, despite the salient recommendations made by the Review Commissions of 1981 and 1997, no amendment whatsoever has been made to its Independence Constitution.
Yet another method of altering a Constitution is illustrated by the example of the United States of America. Here, the text of the original Constitution is left unchanged and, from time to time as circumstances warrant, separate amendments are made. Such amendments, together with the original document, constitute the country's Constitution.
What are the procedures by which changes may be made to our Constitution? To begin with, it must be understood, that almost all provisions of our Supreme Law are classified as "entrenched clauses". That is to say, they are protected against the power invested in Parliament to pass ordinary legislation by a simple majority vote of Members of the House present and voting, provided those members constitute the required quorum of twelve (12) members.
The provisions of our Constitution are entrenched at two levels. The lower level is in respect of provisions not specified in Schedule 1; they are classified as "ordinarily entrenched". At this level, a bill to amend the provision in question requires, for its final passage in the House, a majority vote of not less than two-thirds of all the elected Members. In addition, for such a bill to be submitted to the President for signature, there must have been an interval of not less than ninety (90) days between its introduction in the House and the beginning of proceedings there on the bill's second reading.
The deeper level of entrenchment protects the provisions of the Constitution, as specified in Schedule 1, as well as Schedule 1 and Section 42 themselves. The provisions include the protection of fundamental rights and freedoms; establishment of the office of President; the appointment or election of an Acting President; the establishment of Parliament and the membership, procedure and manner of dissolution of the House of Assembly; the conduct of voter registration, changes in constituency boundaries, the election of representatives and the High Court's role in election disputes; the expenditure of the public purse; the establishment and workings of the public service; and the Parliamentary Commissioner, also known as the Ombudsman.
At this level, a bill to amend any of these provisions requires, for final passage in the House, a majority support of not less than three-quarters of all the elected members of the House. And, for the bill to be sent to the President for his assent, there are additional requirements. One, as with amendments to ordinarily-entrenched provisions, is that there must be an interval of ninety (90) days between its introduction in the House and the commencement of debate on its second reading. Another is that, following passage by the House, the bill must be approved on a referendum "by a majority of votes cast". It should be noted that under Section 42(4) of the Constitution, a referendum may not be necessary where the relevant bill is in respect of the abolition of Her Majesty's Privy Council as our court of last resort, or in respect of any international agreement that commits our Supreme Court or any other Court to joint work with those of other countries. Yet another requirement, also as in the case of amendments to ordinarily entrenched provisions, is a Certificate under the hand of the Speaker of the House, or the Deputy Speaker, that the requirements as to voting on the bill and delaying debate on its second reading are complied with. Further, as to deeply entrenched provisions, the Speaker's Certificate must indicate that the referendum requirements have been satisfied. This, then, is how our Constitution may be amended.
More than twenty (20) years have passed since the 1981 Review Commission's Report was tabled and, fourteen years, since that of 1997 was submitted. More recently, the character of the nation's politics has prompted renewed calls for a review particularly of three areas of the Constitution. One is the manipulation of the institution of local government by the central administration. Another is a perceived drift towards authoritarian rule on the part of the Prime Minister. A third, relatedly, concerns the continued need for an essentially ceremonial Head of State at enormous expense to the tax-paying public. In these circumstances, there have been renewed calls for (a) the institution of local government to be enshrined in the Constitution; (b) the placing of effective checks on the powers of the Prime Minister, if not, (c) the replacement of our "Westminster model" by a Presidential form of government.
Today, no area of our country's governance is as controversial and troubled as the arbitrary disregard by the political directorate of certain provisions of the Constitution. By all accounts and by any measure, authoritarian-style rule, a total contempt for the electorate, and a corresponding lack of accountability to them, have over the past few years contaminated the nation's politics. As a result, our Constitution appears to have lost the respect and admiration of sizeable sections of the citizenry. In these circumstances, and after 35 years of constitutional independence, the time is probably ripe to review the recommendations made in 1983 and 1997 in the context of the present, with a view to amending our Supreme Law.
(Dr. William "Para" Rivière is an Attorney at Law and Historian)
Copyright © William Para Rivière, November 2013.