Thursday, February 22, 2018

An impending constitutional fiasco


Mark Fraser

That the People's Partnership Government should have brought the Constitution (Amendment) (Tobago) Bill 2013 before Parliament in the midst of the highly charged election campaign for the Tobago House of Assembly (THA) is an act of sheer irresponsibility.

The Prime Minister's argument that "the best time to deliver a promise was when the electorate was watching very intently….otherwise important promises could be lost in the clutter and daily routine" was itself "specious, hypocritical, trite, sly and cheap politicking".

But we should not be surprised. This Government is motivated solely by the dictates of expediency and perceived political advantage. And if bringing a particular bill to Parliament would help to sway some of the voters in Tobago to vote for the TOP then, as far as this Government is concerned, that would be reason enough, regardless of whether the environment of an election campaign would distort and subvert the due care and attention which the bill necessitates.

But this is no ordinary bill. The Tobago Autonomy Bill, as it is being called, is without question the most important constitutional amendment that has been placed on the legislative agenda in our history as an independent country. And because it significantly alters our Constitution, it is a bill which demands and deserves widespread discussion and consultation not only in Tobago but in Trinidad as well.

It is not my intention here to attempt a detailed analysis but to outline some of the broad constitutional issues raised by the bill and to put on the table for critical review some of the key problems which might be presented and which would need to be addressed before any such bill is finally assented to.

The bill purportedly seeks "to amend the Constitution to enhance the legislative and executive powers of the THA with a view to promoting the internal self-government of Tobago." The goal of "promoting internal self-government for Tobago" is not only laudable but long-overdue not only because Tobago is a separate island but because Tobagonians are a separate people and the principle of self-determination for people is one which cannot be gainsaid.

But the real issue is the constitutional context in which such self-government is facilitated. When the bill speaks of amending the Constitution let us remember that the Constitution being referred to is the Constitution of Trinidad and Tobago, one which is predicated on the concept that the island of Trinidad and the island of Tobago together constitute a unitary state.

Reginald Dumas, the central figure in the team whose proposals form the basis of the Government's bill, has stated that as far as he and his team were concerned, "the current unitary state system discriminated against Tobago and should be discarded; (and) it should be replaced by a federal system."

Now it may well be asked whether the perceived discriminations could not be eliminated while yet maintaining the unitary system. Indeed, it has been argued that the only real impediment to genuine internal self-government for Tobago is that under the existing arrangements, the Cabinet of the government of Trinidad and Tobago has the power to override decisions made by the THA on matters listed in the Fifth Schedule to the 1996 Tobago House of Assembly Act.

Since the matters listed in the Fifth Schedule constituted the substance of Tobago internal self-government then clearly giving the Cabinet of Trinidad and Tobago veto power over THA decisions on these matters negated genuine internal self-government. So all that would be required for Tobago internal self-government to be a reality is to expunge such veto provisions.

But there is nothing sacrosanct about the unitary system and the people of Tobago together with the people of Trinidad can certainly decide to replace it with a federal system. Indeed a well designed federal system would have the added advantage of being able to expand to include other countries and thus may well set the groundwork for a new West Indian Federation.

But whatever the bill currently before Parliament introduces it emphatically does not introduce a federal system. For the fact is that federalism is a system of government in which a written constitution divides power between a central government and two or more regional or sub-divisional governments. A federal system, in our context, would thus comprise a government of Tobago, a government of Trinidad and a federal government of Tobago and Trinidad.

The bill currently before Parliament seeks to create a government of Tobago (Legislature and Executive) and to define its power and authority relationship with the government of Trinidad and Tobago. Nowhere is a government, (or governments) of Trinidad mentioned and indeed the bill gives to the government of Trinidad and Tobago the powers to make laws for Trinidad in areas in which it gives to Tobago the right to make its own laws.

This is a constitutional fiasco but its generation is not to be laid at the feet of Tobagonians. They have, rightly, sought to address a problem which they, as a people, have perceived. Trinidadians have, arrogantly, always seen the Tobago autonomy issue as Tobago's problem and have never given the requisite attention to its ramifications and have thus failed to comprehend the implications for Trinidad. If this current bill is passed in its present form, Tobago would become an internally self-governing state and Trinidad would become a "protectorate" of Trinidad and Tobago.

Construction of a genuine federal system begins by acknowledging that there are two states, different but equal and, from that basis, work out the arrangements which would satisfy the realities and the aspirations of both. The bill currently before Parliament manifestly does not do that.

Before this bill is assented to a national debate is required, not only in Tobago but even more urgently, in Trinidad.

• Michael Harris has been for many years a writer and commentator on politics and society in Trinidad and the wider Caribbean.