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Ominous
signs on the horizon
By
Basdeo Panday
Prime Minister Patrick Manning’s revelations in his
speech to the International Conference of the National Association
for the Empowerment of African People on the March 31, must
have come as a shock to some; to others it was but a confirmation
of a tendency noticeable for some time now: a megalomaniacal
delusion of his ambitions on power.
Mr Manning is reported to have said that under the present
Constitution, the President has too much power and cites
as an example the 1995 declaration of a partial state of
emergency limited to the residence of the then Speaker,
Ocah Seapaul, and her eventual house arrest. What seems
to have galled him was the number and nature of the question
the then Acting President, Emmanuel Carter, had the temerity
to ask him before declaring the state of emergency he (Manning)
was requesting. To quote Mr Manning’s own words:
“I
began to realise that if he did not want to declare a state
of emergency, he did not have to, and nobody could do anything
about it. The President, as it stands, is subject to no
law…The President is in a position to frustrate the
will of the elected authorities if he so wishes. In Trinidad
and Tobago, not only is such interference possible, it is
very likely. On that ground, and that ground alone, the
Constitution needs reviewing.”
What a curious reason for wanting constitutional reform!
Even with the most favourable interpretation possible that
statement is frightening. The Constitution of our country
enshrines certain fundamental rights and freedoms to which
every citizen/resident is entitled and provides that these
fundamental rights and freedoms shall not be taken away
(particularly by the Government) except in very exceptional
circumstances of emergency, such as war, insurrections,
natural disasters, danger to the population, etc.
Recognising that the political directorate (ie the Government
in power for the time being) may be tempted to abuse this
provision by using it to perpetuate itself in power, the
framers of the Constitution decided to put a check on them
by providing that only the President can declare a State
of Emergency and before he can do that he must be satisfied
that circumstances exist that warrant the need for a state
of emergency.
It follows then that if the Prime Minister goes to the President
and asks him to declare a State of Emergency the President
is entitled to ask him: Why do you want to suspend the people’s
fundamental rights and freedoms? What are the circumstances
that require such a drastic move? Where is the danger to
the people?
Absolute control
Manning objects to such questions by the President. As far
as he is concerned the President should not have any right
to ask him any questions but should automatically concede
to his demand for a State of Emergency as and when he (Manning)
decides that there should be one.
He regards the President’s questions as an “interference”
on his use of absolute power in imposing a State of Emergency
on the people at his whim and fancy. He is reckless enough
to advocate that the Constitution should be reviewed to
remove this interference, if for no other reason.
But Mr Manning does not stop there! He went on in the same
speech to lament the fact that he does not have absolute
control over the armed forces. He said that he was informed
by a certain Chief of Defence Staff that the nation’s
armed forces would obey the orders of the President, rather
than the Prime Minister, if the two gave conflicting instructions.
That is of grave concern to him. He thinks he should be
in absolute control.
The Constitution provides that the President shall be the
Commander-in-Chief of the Armed Forces. Mr Manning does
not like that provision. If he had his way he would change
the Constitution to put the Armed Forces under his total
and absolute control. Megalomania may not be the ailment
here; it may be worse than that. In any case, we have been
warned.
A political exercise
There can be no doubt that our present Constitution is substantially
the same as it was when drafted in 1962, some 45 years ago.
The 1976 Republican Constitution was merely a change of
form, not of substance. The present Constitution is in dire
need of reform. It was no doubt relevant to the times when
it came into being, but since then much social and economic
waters have flowed beneath the political bridge; the society
today is quite different from what it was in 1962; it has
new fears, higher hopes and greater aspirations, which the
1962 Constitution never anticipated. Simply put, a national
Constitution is a set of rules by which a people agree that
the society shall be run.
Its purpose and objective should be to promote the welfare
and happiness of the citizens; to deal with and resolve
their problems and to conduce to the growth and development
of the society and the people. It is clear that the present
constitution is not doing that and hence the need for constitutional
reform is urgent.
To ensure the success of any exercise in constitutional
reform it is extremely important how we proceed. Process
is very important. The worst approach is to appoint one
or more lawyers and simply ask him/her/them to produce a
draft of a new constitution, which is then taken to the
population for comment.
In the first place the audience would not have seen or read
a copy of the draft document before the so called “consultation”
and, even if they did the chances are they will not understand
the legalese in which the document is written; even some
lawyers do not.
Constitutional reform is not a legal exercise and cannot
be done by lawyers; it is a political exercise and must
be done politically by the final arbiters in all political
matters…the people and their elected representatives.
But to simply go to the people and ask them to produce a
draft would be an exercise not only in futility but one
in absurdity.
The farmer, the taxi driver, the construction worker cannot
tell you what a new constitution should contain but they
sure as hell know more than anyone else the problems they
face from day to day; they know the obstacles that stand
in their way to a happier life. The first step, therefore,
in any exercise in constitutional reform is to go to the
people and ask them what are the problems and frustrations
that confront them in everyday living and what they perceive
to be the solutions to those problems and frustrations.
Life blood of a constitution
For example, most people believe that the greatest problem
facing the country today is escalating crime and the Government’s
inability to accept responsibility or to deal with it. They
are frustrated that no one seems to know who is responsible
for dealing with the problem. The Constitution should clearly
provide for responsibility and sanctions against those who
fail in their duty.
If they tell you that management is lacking and recruitment
is based on nepotism and cronyism then the answer has got
to be a provision in the Constitution that ensures a meritocracy.
The people may tell you that racism and other forms of discrimination,
marginalisation and alienation divide the society and so
debilitates our most valuable resource…our human resource
and so prevent us from moving forward.
The Constitution will then have to deal with that problem
by instituting rules and institutions to ensure that such
heinous practices are discouraged and punished. They will
ask why after an expenditure of over $100 billion in five
years they are still without water, roads; why food prices
are so high when we have so much agricultural lands going
to waste? And they will give you the reasons why they think
this is so. They will also give you answers as to what they
think ought to be done. This will form the life blood of
a new constitution.
The people are not stupid; you will be surprised to discover
how much they know of their society and how much they know
of how these problems can be resolved.
The Ellis Clarke Draft
This is the only meaningful kind of consultation there can
be with the people, and refusal to recognise this simple
fact explains the recent fiasco and failure of the consultation
on the Ellis Clarke Draft.
Having got the views of the people the politicians must
come together and, taking the views of the people with their
own knowledge and experience, come up with suggestions of
the measures that must be taken to solve the people’s
problems and advance their welfare and the welfare of the
society as a whole.
These suggestions will constitute the brief that shall then
be handed to the lawyers with instructions to reduce such
ideas to legal form and language. And that shall be the
basis of a new Constitution for the country.
Next week, if I, and this column, are still alive, I shall
tell you what my own thoughts are on what a reformed constitution
should look like. That promise is, of course, based on the
assumption that Mr Manning and/or the PNM/ and/or the Attorney
General and/or the Chief Magistrate will not do something
stupid during the week so forcing me to divert my attention
to comment on their shenanigans instead of keeping to my
original plan.
Sunday
1st April
On
Wednesday 21, one day after the Court of Appeal quashed
his conviction for failing to declare a London bank account
to the Integrity Commission, UNC interim political leader
Basdeo Panday returned to the House of Representatives to
reclaim the Couva North seat.
Speaker Barendra Sinanan, acknowledging Panday’s presence
in the House, said he would seek High Court opinion on the
issue of the Panday’s claim to the seat.
Panday returned to the House for two more sessions—on
Monday and Wednesday—declaring he was going to speak.
Both times, the House was adjourned after only a brief sitting
that dealt with obtaining House approval or information
for use in projected High Court deliberation even though
at the Monday sitting it was announced debate would continue
on the Equal Opportunity Bill.
On Wednesday, after a nine-minute session, the House was
abruptly adjourned to “a date to be fixed,” which
led Panday to claim the PNM and Parliament had adjourned
the House to prevent him from speaking.
The Sunday Guardian invited Mr Panday to speak:
Basdeo
Panday
The decision of the Court of Appeal to quash the conviction
and sentence in the case against the Member of Parliament
for Couva North appears to have thrown the hierarchy of
this PNM Government into a tail spin from which they seem
unable to recover.
When they caused me to be charged for failing to declare
a bank account in the joint names of my wife and me, they
must have thought that that was the end of my political
life. The Integrity Commission, instead of pointing out
to me my error as they have done with other PNM bigwigs,
rushed to have me charged. In fact, one of them is reported
to have said: “We have the son of a b---h to hang.”
From all the evidence now in our possession, it is clear
there was a massive conspiracy designed to send me to prison,
and to remove me from Parliament and, eventually, the political
scene.
Their plan backfired when they tried to kill two birds with
one stone by implicating Chief Justice Satnarine Sharma
in their diabolical plot. This country does not know half
of the truth of what occurred in this case; you have seen
merely the tip of the huge iceberg of corruption, lies,
deceit, threats and intimidation that went into the making
of this conspiracy, which all began to unfurl when Chief
Magistrate Sherman Mc Nicolls refused to testify and be
cross-examined on his allegations against the Chief Justice.
The conspiracy intensified during the period March 24, 2006—when
the evidence in my matter was completed—and April 24,
2006, the date set by the Chief Magistrate for decision.
When, on April 24, the Chief Magistrate delivered his decision
in which he sentenced me to two years’ imprisonment
with hard labour, President George Maxwell Richards broke
all records for administrative speed, if not accuracy, by
having me removed from my seat in the House in less than
36 hours.
There is no record of him having acted with such speed in
the performance of his official duties neither before nor
since. It is as if they knew what the sentence was going
to be long before it was passed and had all the papers for
my removal prepared well in advance.
As a consequence, I remained out of the House for some 11
months, during which time my constituents were deprived
of their constitutional and democratic right to be represented
in the Parliament by the representative of their choice.
On March 20, 2007, the Court of Appeal set aside the conviction
and sentence on the ground of bias on the part of the Magistrate.
The effect of that decision was to render the conviction
and sentence of the Chief Magistrate null, void and of no
effect ab initio—ie, from the beginning; it is as if
it had never occurred.
It is trite law that, in such circumstances, all acts and
things done in pursuance of the Chief Magistrate’s
conviction and sentence were also rendered null and void
and of no effect, and that would have included my removal
from Parliament.
A similar case occurred in England (Attorney General vs
Jones) and the court held that the MP was entitled to resume
her seat in Parliament after the Court of Appeal quashed
her conviction and sentence. The PNM’s plan to silence
me forever appeared to be falling apart.
When I learnt that there would be a sitting of the House
on the following day, March 21, I was advised by my lawyers
that it would be lawful for me to attend and take my seat
and it was so reported in the media.
Just before the sitting of the House, the Speaker phoned
and asked to see me; we met. He told me he had seen in the
newspapers that I had intended to attend the sitting of
the House, to which I answered in the affirmative.
He said he would let me sit in House but I must not speak.
I told him that that was totally unacceptable to me as it
would be tantamount to betraying my constituents.
He then asked me if I would agree not to speak during the
debate on the Equal Opportunity Bill, which was then before
the House. I told him I could not give that undertaking
but I would undertake not to speak on that day (Wednesday)
as I had not got a copy of the new bill and was not fully
prepared to participate in the debate at that time.
I took my seat in the House and the debate on the Equal
Opportunity Bill began.
Much to my surprise, soon after the tea break, the Government
suddenly adjourned the House to a date to be fixed.
The reason given by the Leader of Government Business, Mr
Ken Valley, for adjourning the House to a date to be fixed
was that members on the Government side had to go to a dinner
that evening; that the following Friday was cricket; that
Friday, March 30 was a public holiday; that the following
Friday was Good Friday. Hence, it was not possible to adjourn
the House to a fixed date. All this turned out to be false,
of course.
In fact, on Friday, March 23, Members of Parliament were
informed that the House would be meeting to pass a motion
to ask the Court whether I should be allowed to take my
seat in Parliament.
The Speaker refused to allow debate on the motion and Winston
Dookeran and others members of the COP voted with the PNM
to send the matter to the Court. Mr Valley again adjourned
the House to date to be fixed.
But behold! Surprise! Surprise! The PNM convened the House
again on Wednesday under the pretence of continuing the
debate on the Equal Opportunity Bill.
Instead of debating this Bill, the Government moved another
motion to send the matter to court; the sitting lasted about
15 minutes and the House was again adjourned to a date to
be fixed.
Now, if this is not a waste of Parliamentary time, I do
not know what is. But, worse, it is a demonstration of the
most callous exercise of raw power—an ominous indication
of an entry into parliamentary dictatorship, the dictatorship
of the majority.
To the unsuspecting, it must be a source of great amazement
that the PNM should be so terrified of my presence in Parliament
that they would go to such lengths to close its doors in
my face.
But you must remember that this is an election year; the
PNM’s performance has been atrocious; it has not done
at all well during its term in office; and the UNC under
my leadership has been the only political party single-handedly
to beat the PNM at the polls, not only once but twice.
That must be a terrifying thought for a regime that has
been so corrupt, inefficient, incompetent, malicious and
spiteful that it is mortally afraid to find itself in the
Opposition. With nothing to show for the expenditure of
over one hundred billion dollars in the past five years,
they will do anything to stay in power and office.
How can they explain such an expenditure to the thousands
of our citizens who are still without a regular supply of
pipe-borne drinking water or proper roads?
The hundreds of families whose husbands, fathers, mothers,
brothers or sisters have been brutally murdered or raped?
The thousands of businessmen and ordinary citizens who have
been robbed?
The thousands who must endure each day the most frustrating
traffic jams this country has ever seen?
The 30 per cent of the population who still live below the
poverty line?
They cannot. And, since they cannot, then the only way out
is to jail and/or otherwise victimise their political opponents,
real or perceived.
There you have it!
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