RIGHTS, AND EXCEPTIONS A GUIDE TO THE CONSTITUTION OF TRINIDAD AND TOBAGO
Continuing today is a Guide to the constitution, aimed at helping especially young people to know their constitution and take an informed part in the debates. The Guide was written by Denis Solomon, retired UWI lecturer and former political activist, on behalf of the Trinidad and Tobago Humanist Association. Publication began in the Sunday Express, January 10 and continued last week.
The Trinidad and Tobago Humanist Association (www.humanist.org.tt) is an organisation founded to promote the principle of rational and ethical thought and action, and devoted to meeting challenges on the basis of common humanity.
For best results, keep a copy of the T&T constitution at hand as you read the Guide, and think through and discuss, with family and friends and others, the explanations and suggested questions and topics applying to each chapter of that foundation document.
CHAPTER 1, PARTS 2, 3 AND 4
Constitutions also sometimes contain provisions allowing rights to be limited by specific legislation and in specific circumstances, supposedly for the good of the society as a whole.
The first clause of the Trinidad and Tobago Constitution that permits rights to be abridged is the reference in Section 5 to Section 54, which will be dealt with below. First, though, let us look at the relevant clauses of Parts 3 and 4 of Chapter I.
Part 3 empowers the President to declare a State of Emergency, and Parliament to ratify, extend or revoke it by a simple majority. Extension beyond six months requires a majority of three-fifths of both Houses. During a State of Emergency Parliament may pass laws, by a simple majority, to abridge any or all of the rights and freedoms enumerated in the Constitution.
States of Emergency have been declared on five occasions since Independence. The first was declared in Caroni in 1965 because of strikes in the sugar industry, and extended to Barataria in order to place Mr. CLR James under house arrest; the second was declared in 1970 following labour unrest and a military mutiny, and renewed in 1971; the fourth in 1990 during the uprising by the Jamaat al Muslimeen; and the fifth in 1995, when the Speaker of the House of Representatives refused to step down after being named in a fraud case. The Prime Minister also claimed that the Speaker was conspiring with the Opposition to suspend Government Members of Parliament. A limited State of Emergency was declared around the Speaker’s residence and she was placed under house arrest.
Part 4 enables Parliament to pass at any time (i.e. even without the declaration of a State of Emergency) laws that abridge rights and freedoms, provided they are passed by a majority of three-fifths of the membership of both Houses.
Such laws shall have effect unless they are “shown not to be justifiable in a society that has a proper respect for the rights and freedoms of the individual”. “Shown” presumably means declared by a court of law, which in turn means that a person who believes himself injured by the law may seek redress on the grounds that the law was not justifiable on the above terms.
This point should be borne in mind when the role of the courts in relation to Parliament is being considered further on in this Guide.
Section 54 sets out the procedure for altering the Constitution. This section allows many of the rights and freedoms guaranteed by the Constitution to be permanently abridged by means of laws passed by a majority of two-thirds of both Houses. Some of these rights and freedoms are:
• All those enumerated in the Bill of Rights
• Provisions against arbitrary detention
• Provisions against cruel or unusual punishment
• Right to be informed of reasons for detention
• Right to legal representation
• Right to a prompt trial
• Habeas Corpus (the right of an arrested person to be brought before a court and released if no charge is laid against him)
• Protection against self-incrimination
• Right to a fair hearing
• The presumption of innocence
• The right to an interpreter if a defendant does not understand English
• The procedures for declaration of a State of Emergency
• The special majority provision in Section 13. This means that by special majority the Parliament may abolish the special majority rule.
The question of simple and special majorities as a means of altering or overriding provisions of the Constitution should be borne in mind later on when we consider the structure, composition and functioning of Parliament.
With regard to the curtailment of constitutional rights and freedoms, it may be useful to note that in signing the UN International Covenant on Civil and Political Rights, Trinidad and Tobago entered eight reservations (areas in which it refuses to be bound by the Convention). It reserved the right to limit freedoms by law under States of Emergency as described above; the right to limit freedom to leave the country by means of Tax Exit Certificates (the certificates, but not the reservation to the Covenant, were later abolished); and the right to limit freedom of assembly.
In 1998 Trinidad and Tobago “denounced” (withdrew from) the American Convention on Human Rights and the Optional Protocol to the UN Covenant on Civil and Political Rights, in order to prevent persons under sentence of death from appealing to the Commissions set up under the two treaties, and thus enable their execution to take place sooner. Trinidad and Tobago immediately re-acceded to the Optional Protocol, with the reservation that death penalty appeals could not be heard by the Commission. The Commission refused to accept this reservation and Trinidad and Tobago withdrew from the Protocol for the second time in 2000.
Trinidad and Tobago’s action was condemned by many Member States of the Covenant, including Denmark, France, Germany, Holland, Ireland, Italy, Norway, Spain and Sweden.
Level 2 Questions
1. Besides those enumerated in the Bill of Rights, are there any other rights or freedoms that should be guaranteed by a Constitution?
2. Are all of the rights and freedoms guaranteed by the Constitution enjoyed by everyone in Trinidad and Tobago? If not, which ones are not enjoyed, why, and by whom?
3. Is it too easy or too difficult for a government (NB pay attention to the distinction between Government and Parliament) to abridge constitutionally guaranteed rights and freedoms?
4. Apart from war or natural disaster, what kinds of circumstances or events justify the declaration of a State of Emergency?
5. Should international organisations or courts be able to compel sovereign states to enforce their decisions? If so, how would they do so? If not, what purpose do they serve?
6. Can some rights and freedoms conflict with others, and if so how can the conflict be resolved?
7. How can a State be forced to uphold the rights guaranteed in its Constitution?
8. Do you believe that human beings have inherent rights?
9. If so, do they derive from a Creator?
10. If so, what is the evidence?
11. If not, whence do rights derive?
12. Are all societies inherently unequal, or can equal rights for all citizens be achieved in practice as well as on paper?
13. Do animals have inherent rights? If so, what are they and whence do they derive? Should they be included in a Constitution?
All republican constitutions explicitly guarantee rights to their citizens. As mentioned in the two previous instalments (January 10 and Janauary 17), this guarantee is reinforced by treaty obligations imposed on the States concerned by their adherence to international human rights treaties and organisations. Two of these treaties are the International Covenant on Civil and Political Rights, and the American Convention on Human Rights. The treaties have created judicial bodies to which citizens may appeal if they consider their States have violated their rights, and if the judicial bodies concerned are satisfied that the States’ internal means of redress are insufficient or have been exhausted. Examples of such organs are The Council of Europe, the European Court of Human Rights, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.
However, there are many cases in which rights and freedoms are specifically limited by laws, and these abridgements are the subject of controversy in many countries. For example, freedom of speech and the press may be abridged by laws against libel, slander, incitement to violence and religious hatred; freedom of assembly may be abridged by laws requiring police or other permission for marches and demonstrations; capital and corporal punishment are considered by many to be violations of the right to freedom from cruel and degrading punishment. Even laws making education compulsory might be considered to abridge the right of parents to custodianship of their children (there are certain religious sects in other countries that deny education to all children, or to female children).
Extracted From: Trinidad Express Newspaper