Governance in Government - How can we improve Parliament and the Constitution?

CONTENTS

Brief introduction to Trinidad & Tobago

CHAPTER 1 – Proposals and Arguments to limit power

CHAPTER 2 - What was our constitution based upon? - Colonialism

CHAPTER 3 - Shortcomings of the Functioning of the T&T Parliament and its Constitution
Problem of Majority Will
Problem of Principles versus Judicial Decisions
Problem of Legislation and Representation – Hayek’s “conflict of competence”
Problem of the Independence in Parliament

CHAPTER 4 – Considerations for improvement to the functions of the T&T Parliament and its Constitution
Limits of power
Limits in the constitution
Limits through the control of revenue
Limit through functions not class
Limits via external checks - Makeweights
Limit through principle

CHAPTER 5 - Conclusions and Recommendations

References

Appendix 1 – Global survey questions to measure Parliaments

Endnotes

Introduction

Governments have unlimited power but this power needs to be limited, according to the authors hereinafter discussed. Hayek (1982) makes mention that “the effective limitation of power is the most important problem of social order”. Jouvenel (1948) also makes reference to the limitation of power. Following him, “All history shows that every man who has authority is led to abuse it; he does not stop until he comes up against limitations”. Parliament stresses that key elements of good corporate governance include transparency and openness, responsibility and accountability of the persons entrusted with corporate governance in an organisation. It defines “accountability” as the acknowledgement and assumption of responsibility for actions, decisions and policies as well as the obligation to report, explain and be answerable for resulting consequences. Noting that Parliament is a complex organisation in which the boundary between political and administrative decisions is not always clear due to the multilayered character of its governance structure, members consider that due attention must be paid to the role of management. It takes the view that Directors-General, Directors and Heads of Unit should be selected on the basis of merit, taking into account equal opportunities and geographical balance, their experience and their management capabilities.

In making a contribution to the shaping of the society of Trinidad & Tobago (T&T), the purpose of this paper is to provide some reasoned arguments concerning governance in Government and making recommendations for substantial changes in the constitution to provide good governance in the functioning of the T&T Parliament, following the ideas of Hayek and Jouvenel.

Abstract

T&T adopted wholesale a constitution that was not reflective of principles and traditions of T&T in August 1962 when it was granted independence from the Queen of England. The principles and practices of a parliamentary democracy have guided T&T for the last 50 years and there have been a number of disputed aspects of the conduct of Parliament. The paper asks whether the ideas of Hayek and Jouvenel provide for parliamentary functioning and constitutional changes that will reflect our society and the principles and traditions upon which our society is based.

Some of the problems according to some authors discussed, which have plagued Parliament for some time since gaining independence have been allegations of unlimited abuse of power appearing in many different ways. This paper will examine some of these problems that currently exist in the Parliament of T&T and apply some of the theoretical underpinnings of Hayek in explaining the nature of these problems with a view to recommending possible solutions which would can be reflected in a complete overhaul of the 1976 Constitution of the Republic of Trinidad and Tobago (see http://www.ttparliament.org/documents/1048.pdf).

Brief introduction to Trinidad & Tobago

T&T is a twin-island republic that gained independence from the British in August 1962. T&T became a republic in September 1976. Both Africans and Indians were brought by boat to the island between 1830–1845, Africans as slaves and Indians as indentured labourers. Race and Ethnicity has become a serious issue because, despite there being guaranteed freedoms and rights for each group, political power by one race over the other has on many occasions compromised those freedoms and rights enshrined in the constitution. The proposed constitution, in particular, electoral reform should at least consider these differences.

T&T is around 5,128 square kilometers in size. The population is approximately 1.3 million and is made up of Indian (South Asian) 40%, African 37.5%, mixed 20.5%, other 1.2%, unspecified 0.8%.

T&T is a parliamentary democracy and is also referred to as a mixed economy. It is a developing nation.^[i]

CHAPTER 1 – Proposals and Arguments to limit power

While Government’s main traditional aim was to ensure the protection of life, liberty and security and property, it has since expanded exponentially into assuming other functions, or more appropriately rather, attempting to satisfy all types of interests, which could have been carried out by private enterprise. The tentacles of the State and its expansion of functions into all areas of private enterprise have increased their power ten-fold. Soon all of the private enterprise functions will be under the command of the government as they have already assumed much of the services of electricity, utilities, building of roads, bridges and general maintenance activities throughout. This is not limited to provision of essential services but Government has also been instrumental in undertaking major regulatory reforms to guide markets, enforce restrictions on movement of people, imposed trade restrictions and overall general control of almost any thing one can think of.

Jouvenel and Hayek have different views on the abuse and limitation of power.

Jouvenel (1948) viewed Power as a separate entity, somewhat as an invisible force which inhibited the individual who was afforded that power and they tended to be consumed by it, what was sometimes termed, hubris or a complacency and arrogance of a leader. Jouvenel (1948) noted that unlimited Power was the problem not the holders of the power or the frameworks such as monarchy, democracy or mixed governments. “Entrust it (unlimited Power) to one man, or to several men, or to all men as you please.the results will be equally unfortunate for you.the actual holders of this Power, and will, according to the circumstances, accuse in turn monarchy, aristocracy, democracy, mixed governments and the representative system. You will be wrong; it is the measure of force that is the culprit, not its holders.”(pp. 326).

The limitation of power is important because as noted by Jouvenel (1948) “all history shows that every man who has authority is led to abuse it; he does not stop until he comes up against limitations” (pp. 316). The T&T constitution does not have a mechanism for dealing with this hubris or even though there is the ‘separation of powers’ among the legislative, executive and judiciary. The only mechanism is the general election held every five years to vote out a party but a voter votes mainly along racial lines, the two major races being Indian and African. The structure of the current electoral formula of 41 constituency representatives along a plurality voting formula coupled with a racial voting phenomenon tends to give one party an edge over the other. The leader knowing this and having been in power for a long time (there are no term limits to how long a Prime Minister can hold office) becomes complacent for he believes he can do anything and get away with it.

The doctrine of the balance of power is key in the sense that it may take precedence over the doctrine of the separation of powers in order to limit power. Jouvenel (1948) noted that limiting of power was critical and much attention was paid to formulas for doing it.

Parliament was set up to deal with Power. Jouvenel (1948) explained that “the institution of Parliament was the constitutional expression of forces which were in league against Power..they kept it always in check and decided its course with ever greater frequency.” (pp. 328)

Hayek (1982) viewed the abuse or limits of power from a very different perspective. His concern was around how power was limited in Parliament via the constitution and not as something as a “disease” posited by Jovenel (1948).

Hayek (1982) suggested at the level of Government and the Legislative Assembly, governance activities enforcing a separation of duties which must not also conflict with other duties. Take for example the issue of representation at the constituency level versus legislative requirements at the Parliament level in Trinidad & Tobago. Hayek proposed that there must be a separation of the duties of one person simply because the tasks are numerous to mention and the skills and competencies required to perform the duties were different. This will be discussed further in Chapter 3.

In limiting power by the formal separation of powers i.e. through the independence of the executive, legislature and the judiciary will not work. Jouvenel (1948) concluded that for the limitation to succeed there must be “sectional interests in a sufficiently advanced statetogether with a system of law independent enough to arbitrate their clashes…..” (pp. 332)

It is not so much the separation of powers or the balance of powers that has not been effective but the need for more of the independence of the functions and the power that goes with it.

If the objective is to effectively limit power so as to limit corruption, nepotism, conflicts of interest and tyranny of a majority etc, history has shown that the separation of powers is not the route to go as it has not had the intended effect of limiting power. It is separation of powers and not a “limit” on powers which would have most probably kept Power in check.

The concept noted by Leoni (1961) referred to Hayek’s “independence”, despite it being in relation to the administration of laws upon a society has relevance here, in the sense that, it does not matter the function, “independence” of powers is more profound and would therefore limit the powers more effectively than by just mere “separation” of powers.

CHAPTER 2 - What was our constitution based upon? - Colonialism

The T&T constitution based on a history of copied practices imposed upon by the Spaniards and English^[ii] in the early twentieth century. It was adopted wholesale as a schematic from the British Parliamentary rule.

The first appointed President of the Republic of Trinidad and Tobago had ensured that a parliamentary system was adopted mainly because the country’s forefathers or more appropriately our colonizers were part of T&T. As Meighoo & Jamadar (2008) summarized, “in essence, Trinidad & Tobago developed its democratic institutions from the (British) Crown Colony system.” This system drove the functioning of the Crown Colony T&T where according to Meighoo & Jamadar (2008) there were six reforms in 17 years – “1945, 1950, 1955, 1959, 1961 and 1962”, the last year being when T&T was led to independence.

T&T constitution was built on a weak and brittle foundation, “Colonialism”. Despite being “given” independence T&T never really were truly free from or free of colonialism. The imposed Crown Colony system led to inheritance of some constitutional foundations which were not suited to T&T. These were on the basis of a Crown Colony system and not T&T’s traditions, way of life or conduct of affairs. It was crafted after something that was, in effect, the same thing that had kept T&T indentured and enslaved for some time. Any of the constitutional changes made were, in the main, increases in positions and not necessarily governance.

A further problem developed during the development of the T&T Constitution in 1956 in which the first Prime Minister of T&T, Dr. Eric Williams departed from what he termed “unprincipled individualism.” Meighoo & Jamadar (2008) revealed that “the main structural changes for which Williams lobbied was the concentration of executive authority in the chief minister and reducing the newly-gained centrality of the diversely constituted Legislative Council. In sum, Williams wanted a strong, unified executive under the control of an elected, disciplined national party, rather than under the control of the legislature as a whole. He was concerned far more with nationalist government that with representative politics…..The political importance of Williams’s shift was that Williams sought to change the political culture of Trinidad & Tobago. He was of the view that Trinidad & Tobago’s undisciplined, unprincipled individualism was unsuitable for a country on its way to responsibility and independence.”

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^[i] Statistical information taken from CIA World Factbook at website: https://www.cia.gov/library/publications/the-world-factbook/geos/td.html accessed on March 17, 2010. Economic growth for the past seven years has averaged slightly over 8%, significantly above the regional average of about 3.7% for that same period; however, it has slowed down this year to about 5% and is expected to slow further with the global downturn. Growth has been fueled by investments in liquefied natural gas (LNG), petrochemicals, and steel. Additional petrochemical, aluminum, and plastics projects are in various stages of planning. Trinidad and Tobago is the leading Caribbean producer of oil and gas, and its economy is heavily dependent upon these resources but it also supplies manufactured goods, notably food and beverages, as well as cement to the Caribbean region. Oil and gas account for about 40% of GDP and 80% of exports, but only 5% of employment. The country is also a regional financial center, and tourism is a growing sector, although it is not proportionately as important as in many other Caribbean islands. The economy benefits from a growing trade surplus. The MANNING administration has benefited from fiscal surpluses fueled by the dynamic export sector; however, declines in oil and gas prices have reduced government revenues which will challenge his government's commitment to maintaining high levels of public investment.

^[ii] A history of Trinidad & Tobago http://www.thecommonwealth.org/YearbookInternal/145189/history/. Until 1888, Trinidad and Tobago were separate territories. Both have a history of repeated invasion and conquest by competing European powers. Trinidad was claimed for the Spanish Crown by Christopher Columbus in 1498. The embattled Spanish colony that developed was raided by the English, Dutch and French through the 17th century. Large-scale importation of African slaves enabled a plantation economy to develop. French Haitians (who were offered incentives by the Spanish Crown) swelled the settler population. In 1797, the island surrendered to a British expedition and became a British Crown colony in 1802. Slaves were emancipated in 1834, free trade adopted in 1846, and more than 150,000 immigrants from India, China and Madeira brought in between 1845 and 1917. These indentured labourers came on short contracts, after which they were free to return home or buy plots of land. The Indians worked mainly on the sugar plantations of the Caroni and Naparima plains and introduced the cultivation of rice there. Dutch and French settlers made their home in Tobago. Tobago changed hands more frequently between 1650 and 1814 than any other Caribbean territory – ownership shifting from a settler (Cornelius Lampsius, declared owner and Baron of Tobago by Louis XIV of France) to the Duke of Courland, to a company of London merchants, to neutral status in 1748, to the English Crown by the Treaty of Paris of 1763. Even then, Tobago was fought over. The French captured it in 1781; the British took it back in 1793; the French regained it through the Treaty of Amiens (1802), but it was returned to the British in 1814. Despite these battles, Tobago was prosperous until its sugar industry was weakened by the abolition of slavery, a hurricane, the decline of West Indian sugar in general and the Belmanna riots. No longer viable as a separate colony, it was amalgamated with the larger island of Trinidad in 1888. The Spanish constitution was retained after Trinidad became a British Crown colony in 1802. The governor was assisted by a council of advice and a cabildo elected by the taxpayers. The council of advice evolved into the nominated legislative council and the cabildo became Port of Spain’s town council. When Tobago was amalgamated with Trinidad in 1888, the laws of Trinidad were extended to the smaller island and, after a period, the revenues of the two islands were merged and Tobago’s debt to Trinidad cancelled. Tobago was administered by a commissioner (later a warden) appointed by the colony’s governor. In the 1920s, the labour movement organised trade unions, and pressure increased for greater local democracy and then independence. A new constitution brought a limited form of electoral representation to Trinidad for the first time (Tobago had had elections before). But only seven of the 25 members were elected, and high property and language qualifications limited the vote. This did not satisfy the growing demand for political expression, which led to the 1937 labour disturbances, an increase in the number of elected members in 1941 and, in 1945, universal adult suffrage. In 1950, the constitution was redrawn, providing for a legislative council of 26 members, 18 of them elected; a policy-making executive council of nine (five elected by the legislative council), and a rudimentary ministerial system. Further constitutional changes followed, and by 1959, the legislative council had more elected members and an elected speaker, and the ministerial system had developed into a cabinet elected from the legislative council. The governor’s powers were circumscribed: he did not normally chair cabinet meetings, and had to act in accordance with the cabinet’s advice. The 1956 elections gave the majority to the People’s National Movement (PNM), led by Dr Eric Williams. Williams instituted further constitutional talks with the UK in 1959–60, resulting in full internal self-government and a bicameral legislature (nominated Senate and elected House of Representatives). The general election of 1961 was again won by the PNM, which implemented the new constitution. In 1958 Trinidad and Tobago became a co-founder of the Federation of the West Indies, which aimed to become an independent country, but Jamaica withdrew in 1961, and Trinidad and Tobago also decided to seek its own independence. Further constitutional talks with the UK began, and a draft constitution was drawn up after much consultation. The country became independent in August 1962, and a republic in 1976