Saturday, February 17, 2018

Tobago's constitutional progress


(BI) Feedloader User

Part II

Before discussing Tobago's constitutional progress I shall make a few comments on the recent political debate. The debate was well organised and well conducted if a little too straight jacketed.

Why could there not have been a general topic such as "How would you develop Tobago socially and economically?" with 20 minutes each for presentation and ten minutes for reply? There then could be some follow-up questions—that would require spontaneous answers.

In the present arrangement of having detailed questions the participants are being led and originality stifled. Few appear willing to say who was the winner although one or two seem to favour Mr Ashworth Jack on the basis that he did better than was expected of him—this seems to me to be "a back-handed compliment".

For me, Mr Hochoy Charles came out ahead. He was relaxed, articulate, self-confident and was master of his material. From the point of view of internal self-government for Tobago, Charles was not fettered in his contribution by association with national political parties.

In my last article I discussed the following aspects of the "The Constitution (Amendment) (Tobago) Bill, 2013: Enshrining of the new arrangements into the Constitution, Executive Authority of Central Government and the Tobago House of Assembly (THA), and ownership of mineral rights. I shall now discuss: financial arrangements, law-making by the THA and the schedules.

Financial arrangements

I find the concept of a proportional allocation of the national budget to Tobago with an upper and lower limit impractical since circumstances may require higher or lower allocations. This is recognised (and to confuse matters) in the bill in Section 10 that states: "(1B) This arrangement shall be reviewed on terms and conditions as shall be prescribed." Presumably prescribed in subsidiary legislation—if so, why put it into the Constitution in the first instance—for political purposes so that the people of Tobago can be told that they will be getting more money? A lower limit may be acceptable to the people of Tobago but not an upper limit (particularly written into the Constitution).

The THA will be able to borrow 15 per cent of the allocation for that year to the Assembly under the Tobago Public Sector Investment Programme. This could be a very severe limitation. Why not a percentage of the total budgetary allocation to the Assembly in each year?

Law making by the THA

The bill proposes that the THA will have the power to make laws which will apply only in Tobago. By the new Section 141B (1), the Assembly would, subject to certain limitations, have the power to make laws for Tobago with respect to matters on the Tobago List.

But Section 141B (2) reads: Parliament may pass a Bill for an Act to make laws for Trinidad and Tobago with respect to any of the matters enumerated in the Tobago List if it is stated in the Act that it is necessary or expedient in the national interest and the Bill for the Act is passed after consultation with the Assembly.

What does "in the national interest" mean and who decides what is in the "national interest"?

The advocates for Tobago internal self-government should insist that this read: "with the concurrence" of the Assembly and not "after consultation with".

Suppose Tobago decides to ban all hunting of wild animals to make that island an attractive destination for visitors who are interested in the preservation of wildlife but Parliament (in response to a strong hunters lobby) decides that hunting must be allowed in Tobago as well as Trinidad?

With respect to other limitations the most important one, in my view reads thus: Section 6 (c) (3) Where a provision of a law made by the Legislature of Tobago under subsection (2) is inconsistent with (a) a provision of a law made by Parliament which Parliament is competent to enact; or (b) a provision of an existing law, the law made by Parliament, whether passed before or after the law made by the Legislature of Tobago, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of Tobago shall, to the extent of the inconsistency, be void.

Could not this limitation completely negate the power of the Assembly to make laws? Also is it not inconsistent with the following provision in the Tobago Bill: 141 B (4) A law in force before the coming into force of this section shall continue to apply to Tobago, until such time as it is replaced in relation to Tobago by a law made by the Legislature of Tobago? Should not this be made subject to Section 6 (c) (3) above? Schedules.

Number 25 on the Tobago List reads: "Such other matters as may from time to time be assigned by the President." Should it not be "assigned or removed" and should this not be with the agreement of the THA? Should not this provision be also on the concurrent and national lists?

To conclude this discussion on the Tobago Bill, I want to emphasise that, as with the 1996 Act, Government is giving Tobago greater authority with one hand and taking it back with the other.

The powers of the THA to make laws is restricted in two ways: by the provisions that (1) the Parliament can pass laws for Tobago "in the national interest" and (2) laws passed by the Assembly must not conflict with laws passed by the Parliament.

Executive authority of the THA is restricted by the over-riding authority of the Central Government by inclusion in (new) Section 75 (1) of a phrase which gives Cabinet over-riding power. If Government is to be true to its boast of giving Tobago internal self-government instead of the powers being "subject to" the powers of Central Government the THA powers should be "not withstanding" the powers of Central Government.

I shall discuss other aspects of the Bill after the debate in Parliament.

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