Orin: T&T’s constitution leaves the cookie jar open—that’s the problem!

“[…] The T&T constitution is defective in one important respect. Too much power of nomination and appointment resides in the premiership and presidency; and therein lies suspicions of cronyism.

“The Constitution effectively leaves the lid of the cookie jar unsecured. It then seems to operate on the expectation that those in power wouldn’t help themselves…”

The following guest column on the Trinidad and Tobago constitution was submitted to Wired868 by Orin Gordon, a media and business consultant who can be reached at orin@oringordon.com:

(From left) Chief Justice Ivor Archie, President Christine Kangaloo, her husband Kerwyn Garcia SC and Prime Minister Dr Keith Rowley.
(Copyright Office of the President)

If in 2023 Trinidad and Tobago’s great legal minds were to draw up a constitution for a new republic, it is doubtful that they would put in a provision whereby the prime minister could effectively handpick the president.

It’s doubtful whether they’d put in a provision whereby the prime minister could effectively handpick lawyers for promotion to the prestigious and lucrative rank of senior counsel.

It’s doubtful whether they’d draw up a constitution in which the president could herself choose nine of the 31 members of the Senate—nearly a third of the body.

Let’s set aside for a moment the troubling optics of the President conferring silk on her husband and her brother, two months after she herself had been elevated—somewhat contentiously—to the office of head of state. The problem goes beyond the current cast of actors and their actions.

President Christine Kangaloo (right) and her husband Kerwyn Garcia at her inauguration on 20 March 2023.
(Copyright Andrea De Silva/ Office of the President)

I’ve no intention of diving deeply into the constitutional or jurisprudential weeds on any of this. I’m not going to quote section this or section that. What you’ll get here is a simple, clear-eyed, layman’s view.

The T&T constitution is defective in one important respect. Too much power of nomination and appointment resides in the premiership and presidency; and therein lies suspicions of cronyism.

The Constitution effectively leaves the lid of the cookie jar unsecured. It then seems to operate on the expectation that those in power wouldn’t help themselves.

The Prime Minister Dr Keith Rowley can claim that he followed the letter of the law in nominating Christine Kangaloo to the presidency, and in presenting to President Kangaloo—on the advice of Attorney General Reginald Armour—a list of 17 lawyers to be elevated to SC.

Prime Minister Dr Keith Rowley (right) and Attorney General Reginald Armour.
(Copyright Office of the Parliament)

On the issue of silk, it is unclear and a matter of dispute whether AG Armour engaged the Law Association as he should have. LATT says he didn’t. The AG says that he did.

Whenever the engaging party says to the party to be engaged, “but I told you!”, I’m more inclined to take the word of the latter.

Regardless of whether he acted by the letter of the law, the Prime Minister did not remove the perception that he proceeded against the spirit of it. He proceeded as he did because he could, and because inadequate constitutional checks on the process allowed him to.

In his most recent column, Martin Daly, himself a senior counsel, wrote that “the test of legitimacy for prudent decision makers is captured in the question, how it go look?”

Attorney General Reginald Armour SC.
(Copyright Office of the Parliament)

“There is no legal requirement for the AG to consult anyone before he makes a decision for further consideration by the Cabinet and for the approval of the prime minister and submission to the president”, Daly pointed out.

“However, the Government knows well that if the public believes these appointments to the front row of the legal profession were made on the exclusive approval of the political executive, the appointments will lack credibility.”

Let me frame it a little differently from my distinguished stablemate, by bringing back the cookie jar. It’s not against the rules of the house to help yourself to a chocolate chip delicacy. It’s considered bad form.

Bad form considerations do not come into play for PM Rowley, because he has shown us over the years that he cares little about optics.

Prime Minister Dr Keith Rowley (left) congratulates President Christine Kangaloo during her inauguration ceremony.
(Courtesy Office of the Prime Minister)

T&T can’t proceed on appeals to good conscience or bad form in important constitutional matters. The country needs to undergo a process of reform of its constitution to remove suspicions of political preference from these important appointments.

Constitutional reform is a dense and meaty subject, which we don’t have time to get into in great detail now.

However, in recent comments in advance of his 90th birthday next week, former Prime Minister Basdeo Panday reminded us how hard the process is.

“The ruling government must have a special majo­rity support of three-quarters, and in some cases three-fifths’ support of the members of parliament, to effect the required reform,” Panday told Express’ Sharmain Baboolal in a 16 April interview.

Trinidad and Tobago Prime Minister Dr Eric Williams (standing) addresses the opening session of the Independence Conference at Marlborough House, London on 28 May 1962.
The talks lasted about two weeks and resulted in Independence for Trinidad and Tobago.
(Copyright AP Photo/
Staff/ Laurence Harris)

“The so-called republican constitution introduced by Dr [Eric] Williams in 1975 was a mere change of form (from old colonial arrangements) and not of substance,” he said.

It is telling that he would frame the required parliamentary support in terms of a majority a government must command, rather than as a bipartisan requirement. It inadvertently illustrated the near impossibility of the task with the current leadership of the two main parties.

Senior Counsel Israel Khan, who lost the parliamentary vote for president to Christine Kangaloo, brought a case to the High Court, asking it to rule on whether the determination by the prime minister of who receives silk is consistent with the constitution. The matter will come up in July.

Photo: Israel Khan Senior Counsel.
(via Trinidad Guardian)

Propriety dictated that the PM waited three months. He chose not to. What’s the rush, Prime Minister? No one would have been inconvenienced by a short wait. You had nothing to lose but public confidence in the process.

The award of silk to the President’s brother and husband is more than egregious bad form. We have no reason to doubt that the recipients are all fine lawyers. Where doubt exists is whether some of them would have been elevated, if they hadn’t had the right kind of ties.

Khan’s High Court challenge is a step in the right direction, but it is only a beginning. The problem is the constitution itself.

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