CJ on constitutional reform: Find out where we went wrong (with CNC3 video)

PM on Constitutional Reform

Before a constitution is written for T&T, who its people are must be defined, says Chief Justice Ivor Archie. The CJ was speaking at last Saturday’s launch of the consultation on constitutional reform at the University of the West Indies’ Sport and Physical Education Centre in St Augustine.

“Before we can write a constitution for T&T, we must be able to define or at least describe us,” Archie said as he addressed government ministers and officials, members of the judiciary, constitutional reform commissioners and civil society representatives. Disclosing he is one-sixteenth Carib, Archie said the coalition government’s experiment is attempting to define a Trinbagonian, outside of ethnic differences.

He said the dilemma of every government is to govern fairly in the face of unreasonable expectations from some quarters. “We must move forward on a governance structure that is not based on appeasement but rather on an acceptance of, and respect for, the worth and diversity that exists within all of us,” he said.

Addressing the issue of proportional representation, Archie said T&T’s political discourse over the years has been organised around perceptions of race and ethnicity. “Must we simply accept that as an immutable reality and assume that different groups must take turns at feeling dispossessed?” he asked. “And now that ‘mixed’ is such a significant demographic, how do we respond to Dougla’s plea?” 

He recalled the dilemma of calypsonian, The Mighty Dougla, who said if people were being sent back people to Africa or India, he had to be split in two. “His simple point was there was no tribe in which he could take refuge...The only choice he had was to be a Trinbagonian,” Archie said.

Next, T&T needs to figure out why it needs a new constitution. “Before we draft a new constitution we need to figure out where and why we have strayed from the current one which does have very laudable expressions of intent,” he said. “One would have to assume the reason we are contemplating a new constitutional arrangement is because there are several aspects of the existing one that are perceived to be not working satisfactorily.” 

Archie suggested the new constitution should not be an amendment of the old one but a complete rewrite, from the ground up. “Maybe we should even revisit our watchwords,” he said. “Are we to be content with mere tolerance? After all we can bring ourselves to tolerate that which we dislike. “Maybe we need language that more clearly expresses the idea of embracing each other.

“We must decide whether we are a nation of many peoples coexisting, or whether we are one people with a diversity of historical and cultural lineages. “If we are to build one people then what do we do about hate speech for example?” he asked. The CJ said he shudders at some of the things one hears over the electronic media. “Is it that freedom of expression is too precious to make hate speech unconstitutional? Wherein lies the greater risk?” he asked.

Turning to the question of what is a constitution for, the CJ said constitutions have been perceived as instruments for the distribution and separation of powers. There is more to it, he added. “The constitution is also the embodiment of a shared value system and a philosophy about the way in which we wish to be organised and governed,” he said. He advised the shaping of the constitution must be based on a broad consensus and cannot be left to the so-called experts. 

“Effective constitutional reform can only begin from an interrogation of the desires and will of the people. In other words, it is generated from the bottom up and not imposed from the top down,” he said.