Tuesday, February 20, 2018

The Tobago Constitution Amendment Bill


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The Government has laid the 2013 Constitution Amendment (Tobago) Bill in the House of Representatives and started the debate on it. The Prime Minister says the timing for the debate is just right as all eyes are focused on Tobago with the THA elections due on Monday.

While this may be so we have heard little as to why there was no public consultation prior to the drafting and laying of the Bill. I am told that the drafting was only completed on the actual day it was first laid in Parliament—January 7—with debate beginning last Wednesday. This seems to reflect some haste and would also explain why a consequential Amendment Bill to the THA Act itself, which would be necessary to bring the Constitution Amendment Bill into effect, has not been laid.

What is more interesting, however, is that for the Constitution Amendment Bill to become law it must have the support of no less than three-quarters of all the members of the House (since it amends Section 54 of the Constitution). There are 41 members of the House of Representatives and three quarters of that is 31 members. Since the Government only has 29 seats Opposition support is needed to pass this bill. At this time this seems not to be forthcoming given the stance by the Opposition Leader who has already spoken on the bill.

The proposed law itself seeks to give the THA powers to pass its own laws for Tobago and to fix a percentage of the national Appropriation for Tobago. Despite what the Opposition Leader asserts it is clear that the THA will be vested with more legislative powers than exists currently. The real issues are: could the Government have really expected support from the Opposition for this hastily prepared law in the heat of a very contentious election campaign? I would think not and it leaves one to wonder as to the real purpose behind pushing the law at this time.

The bill first of all seeks to amend Section 53 of the Constitution by adding to it a new subsection permitting the Legislature of Tobago (which is defined later on as the President and the THA) to make laws for Tobago. At present the THA may merely debate bills (albeit on a wide range of matters) which if adopted must then be passed on to the Cabinet to be enacted if the Cabinet agrees.

The Tobago Legislature under the proposed law may make laws for Tobago in respect of matters listed in a "concurrent list". This list includes air and sea transport, internal government affairs, land use policy, telecommunications and energy affairs. The caveat is of course that such laws cannot be inconsistent with the laws passed by Parliament or indeed with any law already existing at the time the proposed law comes into effect. It is arguable that this caveat is very wide and could render the Legislature virtually powerless.

There are also provisions for a "Tobago" List. The bill states that Parliament must consult with the THA before it makes laws for Tobago on matters on that list where such law requires a special majority (because the law conflicts with or amends the Constitution). Later in the bill we are told that the THA will make laws for Tobago on matters in this list (presumably where the law does not require a special majority). This list includes State lands, finance, public infrastructure, tourism, health and sport.

Further, while the bill stipulates that Cabinet has the right to formulate policy for Trinidad and Tobago on matters in the National List and for Trinidad in relation to the Concurrent List and the Tobago List one has to look elsewhere in the bill to find out, who formulates policy for Tobago in respect of matters in the last two lists.

In respect of matters in the third list, the National List, Parliament makes laws for Trinidad and Tobago on these matters which include the President, Office of Prime Minister, Foreign Affairs, the Judiciary, National Security and the Integrity Commission. As far as this list goes it is understandable why it is desirable that Parliament should make these laws.

Another feature of the proposed law is the inclusion, by way of amendment to Section 113 of the Constitution, of a new section stipulating the minimum and maximum amount of money to be appropriated to the THA every financial year. The range is set at 6.9 per cent with a maximum of eight per cent of the total sum appropriated to the national budget. The Bill provides for the THA to be given the power to borrow up to 15 per cent of the sums allocated to Tobago for the particular year under the Tobago Public Sector Investment Programme.

The final aspect of the bill that merits consideration is the proposed creation of a "Legislature" of Tobago by repealing and replacing 141A to 141 D of the Constitution. The Tobago Legislature will be vested with the power to make laws for the peace, order and good governance of Tobago. Its power is to be exercised by bills passed by the assembly and assented to by the President which will be called "Assembly laws".

Yet there is a subsequent, and to my mind strange, provision which states: "the Assembly shall have the power to make laws for Tobago" in respect of matters on the Tobago List. Is there an intention then to have the THA make certain laws and the Legislature make others? It is confusing.

This Draft Bill needs some work if it is to be up for serious consideration. Apart from the issues I have mentioned one last area that raises a red flag is the apparent attempt to define territorial waters for Tobago by constitutional amendment. Has the Government considered the implications of this in respect of other countries?

• Dana Seetahal is a former

independent senator