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Tobago's constitutional progress

By John Spence

With the laying in Parliament of "The Constitution (Amendment) (Tobago) Bill, 2013, that island should take a further step forward towards meaningful autonomy. I sat on the Select Committee which considered the present (1996) Bill and wrote a minority report since in my view the Committee had not completed its deliberations. The main problem lay in Section 25 (1) which states: "Without prejudice to section 75(1) of the Constitution, the Assembly shall, in relation to Tobago, be responsible for the formulation and implementation of policy in respect to matters set out in the Fifth Schedule." Section 75 (1) of the Constitution reads: "There shall be a Cabinet for Trinidad and Tobago which shall have the general direction and control of the Government of Trinidad and Tobago and shall be collectively responsible therefor to Parliament." Thus the powers designated for responsibility of the Tobago House of Assembly (THA) were negated by Section 25 (1) which referred to Cabinet's overall responsibility. I have held the view that the autonomy of Tobago could have been immediately advanced by a simple change in Section 25 of the THA Act, that is, by the deletion of the words "Without prejudice to" and substitution of the word "Notwithstanding". So in discussing the present Bill I shall examine this aspect of the provisions closely. I have written on the details of the Assembly of Wales Act and I shall not repeat those discussions here except to state that removal of any function from the Assembly for Wales has to be approved not only by Parliament but, most importantly, also by the Assembly for Wales.

New arrangements to be enshrined in the Constitution.

The first point to note about the new Bill is that many of the detailed arrangements for the THA which were formerly in the 1996 Act are now proposed to be enshrined in the Constitution and so will be more difficult to change.

Executive Authority.

In my view one of the most important provisions concerns the authority of the THA as opposed to that of the Cabinet. As discussed earlier in this article it was this issue that weakened the authority of the present House of Assembly. In the current proposals the executive powers of the Assembly are stated to be: "141C. (1) There shall be an Executive Council of the Assembly consisting of a Chief Secretary and such number of other Secretaries (one of whom shall be an Attorney-at-law and shall be responsible for legal matters) as may be prescribed, to be appointed in such manner as may be prescribed. (2) The Executive Council shall, in relation to Tobago, have the general direction and control with respect to any of the matters enumerated in the Tobago List and shall be collectively responsible therefore to the Assembly. (3) Subject to section 75, the Executive Council shall be responsible for the formulation and implementation of policy in Tobago with respect to any of the matters enumerated in the Concurrent List."

With respect to section 75 (outlined earlier) of the Constitution amendments are proposed so that it will now read: "Section 75 of the Constitution is amended by repealing subsection (1) and substituting the following subsection: "(1) There shall be a Cabinet for Trinidad and Tobago which shall—(a) have the general direction and control of the Government of Trinidad and Tobago; (b) consult with the Executive Council of the Assembly in relation to the matters listed in the Concurrent List which directly affect Tobago; (c) have the right to formulate policy for Trinidad on matters in the Concurrent List and the Tobago List; (d) have the right to formulate policy for Trinidad and Tobago for matters on the National List; and (e) be collectively responsible to Parliament for the general direction and control of the Government of Trinidad and Tobago."

The critical question is: does (new) 75 (1) (a)-"There shall be a Cabinet for Trinidad and Tobago which shall – (a) have the general direction and control of the Government of Trinidad and Tobago)" over-ride (new)-141C (2)-"The Executive Council shall, in relation to Tobago, have the general direction and control with respect to any of the matters enumerated in the Tobago List and shall be collectively responsible therefore to the Assembly"? Is there need for the words "not withstanding section 75 (1) (a)" to be inserted in appropriate places?

Ownership of Mineral Rights.

There should be an item in the current Bill on ownership of Mineral Rights. Suppose oil or natural gas is discovered on land in Tobago who owns it—the central Government or the THA? In the current Bill Energy and Energy Affairs are in the Concurrent list. As an aside who owns the land in Tobago which is now (apparently) under the control of the THA? The THA should ensure that it has legal title to all the "State" land in Tobago or its plans for use of such land could be stymied at any time by the Central government.

There is the issue of the waters around Tobago. The Bill proposes an eleven mile zone whereas persons in Tobago talk of an "Exclusive Economic Zone". This latter zone only applies to sovereign nations and so to make such a claim Tobago would have to push for independence from Trinidad! Listening to the Prime Minister's recent statement in Parliament as she outlined the history of the relationship between Trinidad and Tobago I thought that she had made a good case for the complete independence of Tobago!

The issue of the ownership of Mineral rights needs to be addressed and the conclusions enshrined in the Constitution.

On the matter of politics the timing of the laying of the Bill in Parliament was clever politics but hardly good governance.

There are other issues (finance, Tobago laws, amendment of the Schedules etc.) that I should like to call attention to but space does not allow me to do so here. I shall continue this discussion on a later occasion.

• John Spence is professor emeritus, UWI. He also served as

an independent senator.

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