Tuesday, January 16, 2018

Realities of constitution reform

The report of the Constitution Commission set up by the current Government and chaired by Minister of Legal Affairs, Prakash Ramadhar was finally presented to Cabinet at the end of last year.

If I am not mistaken this is the fourth report on constitution reform that we have had in the last ten years. There is every likelihood that the Ramadhar report will end up in the same position as the previous three—languishing, all but forgotten, gathering dust on some shelf.

The fact that we have had four essays at constitution reform in the last ten years might well be cited as a positive since it can be considered a testament to the fact that there is some widespread belief that at least some of the perennial problems we face with our governments are attributable to the structures and strictures under which they operate.

Where we have failed, and are evidently failing still, is in our understanding of how to go about deciding what changes we need to make and how to actually make such changes. All the attempts at constitution reform in the recent past have borrowed from the template used in formulating our Independence Constitution in 1961 and our Republican Constitution in 1976.

That template calls for the setting up of a commission of “experts” who review the Constitution and, after consulting other constitutions and other expert opinions from around the world, write a report proposing wholesale changes to the Constitution. It also calls for that commission, before or after they draft their report, to hold “consultations” with the people to explain the proposals or to hear their views. Once that is done, under this template, constitution reform is a matter of getting the proposals passed in Parliament with the stipulated majorities.

This template has doomed all previous attempts at constitution reform in this country to failure and is certain to doom Mr Ramadhar’s report to a similar fate. The reason is simple. The making of a constitution and the changing of a constitution are two entirely different things. While the template being used may be suitable to the former exercise it is entirely inappropriate for the latter.

Once a written constitution has been in place and in play for a period of time the structures, procedures and regulations which it contains become known and familiar. Once that happens, special constituencies develop whose interests are tied to particular structures and their ancillary rules and regulations. To attempt to change any of these without meeting and treating with the constituency involved is certain to court resentment if not active opposition. To attempt wholesale changes to existing constitutional structures is to ensure massive and concerted opposition.

The implications of this are many. In the first place it explains why any reform or change to an existing constitution is a pre-eminently political task which must engage politicians and their parties at the forefront of the endeavour and not “constitutional experts”. There may be a place for such experts in the backrooms of the struggle, giving advice on issues, but the battle itself is for politicians to wage.

Second, reform or change to an existing constitution is always the end result of a political battle that is already won. Such a battle is never fought with some particular wording of a constitutional amendment as its goal. Rather the battle is fought over political values, political goals and political objectives. Whoever wins the battle then gets the opportunity to write the constitutional amendment ratifying those political goals and objectives.

Furthermore, in such circumstances, no “consultations” are necessary because the people would have already been apprised and informed of all the issues by following the various protagonists in the political fight and would have had their say in determining the outcome.

Thirdly, because reform of an existing constitution is pre-eminently a political endeavour over which political battles must be fought such reform is, more often than not, incremental and specific rather than wholesale and general. The reason for this should be clear. The more changes a government or political party seeks to make to an existing constitution the more constituencies it puts in jeopardy and the larger the forces of those opposing change becomes.

It is for all these reasons that many months ago in this space, I warned Minister Ramadhar that constitutional reform was not a buffet table from which we could pick and choose structures and institutional arrangements which caught our fancy. I went further and advised him that constitution reform does not begin with the Constitution but rather with “a clear and detailed analysis of the government and politics to identify precisely what is not working and why?”

It is such an analysis which would identify for the government the key issues to be addressed and from among those issues the one most significant issue whose ramifications and consequences would lead to the greatest impact and the most widespread change. This issue then becomes the political platform upon which the battle is fought.

The Ramadhar Report is a hodgepodge of preferences and proposals with no coherence, no unifying theme, no analysis and above all no political insight. In many ways it is the worst constitution change report that we have ever had. Put very simply it is a waste of time, effort, money and above all opportunity.

Indeed the report plays right into the hands of the UNC faction of the Government which has never been sold on the idea and need for constitution reform. For no one could rightly blame the Government if its decision were to shelve this report and make sure that it never sees the light of day.

The tragedy is that the country would have missed yet another opportunity to begin the process of putting our house in order.

• Michael Harris has been for many years a writer and

commentator on politics and society in Trinidad and the wider Caribbean.