Articles on this Page
- 01/09/16--20:10: _THE POLITICS OF ECO...
- 01/16/16--19:57: _MISUNDERSTANDING PA...
- 01/23/16--19:50: _IS A SHOWDOWN LOOMING?
- 01/30/16--18:37: _THE SECTION 34 VIND...
- 02/06/16--19:13: _AN ABSENCE OF FANFARE
- 02/13/16--23:18: _THE CCJ/PRIVY COUNC...
- 02/20/16--17:32: _BALISIER HOUSE RULES
- 02/27/16--20:09: _Breeding monsters: ...
- 03/05/16--20:44: _WHOSE CONSTITUTION?
- 03/12/16--22:41: _SELLING OFF THE RIE...
- 03/19/16--21:41: _FORCING A RESHUFFLE
- 03/26/16--21:27: _Our Constitutional ...
- 04/03/16--06:04: _WHITHER IRON AND ST...
- 04/09/16--21:48: _EMBRACING THE RUN-O...
- 04/17/16--05:40: _PRICES, PATRIOTISM ...
- 04/23/16--21:41: _LAVENTILLE AT LAST
- 04/30/16--22:50: _WAS LABOUR MISLED?
- 05/08/16--06:37: _Individual minister...
- 05/15/16--02:05: _THE RIGHT TO PRIVACY
- 05/21/16--21:40: _CHALLENGING PRIVACY...
- 01/09/16--20:10: THE POLITICS OF ECONOMIC CHOICES
- 01/16/16--19:57: MISUNDERSTANDING PARLIAMENTARY SCRUTINY
- 01/23/16--19:50: IS A SHOWDOWN LOOMING?
- 01/30/16--18:37: THE SECTION 34 VINDICATION
- 02/06/16--19:13: AN ABSENCE OF FANFARE
- 02/13/16--23:18: THE CCJ/PRIVY COUNCIL CONUNDRUM
- 02/20/16--17:32: BALISIER HOUSE RULES
- 02/27/16--20:09: Breeding monsters: An old debate?
- 03/05/16--20:44: WHOSE CONSTITUTION?
- 03/12/16--22:41: SELLING OFF THE RIENZI LEGACY
- 03/19/16--21:41: FORCING A RESHUFFLE
- 03/26/16--21:27: Our Constitutional Foundation and British Traditions
- 04/03/16--06:04: WHITHER IRON AND STEEL?
- 04/09/16--21:48: EMBRACING THE RUN-OFF SYSTEM
- 04/17/16--05:40: PRICES, PATRIOTISM AND PHILOSOPHY
- 04/23/16--21:41: LAVENTILLE AT LAST
- 04/30/16--22:50: WAS LABOUR MISLED?
- 05/08/16--06:37: Individual ministerial responsibility
- 05/15/16--02:05: THE RIGHT TO PRIVACY
- 05/21/16--21:40: CHALLENGING PRIVACY AND THE SSA AMENDMENT
As the country gradually comes face-to-face with its economic circumstances at the start of 2016, it is apparent that the State is no longer in a position to play the role of prime mover in the economy. We are entering a period of debate and discussion about the way forward without the presence of any clear road map or guiding philosophy.
The Prime Minister laid out the dynamics of the problems facing the country with the downturn in energy revenues which started a year ago. We know from the Estimates of Expenditure for 2016 that were laid in the Parliament when the 2016 budget was presented that in fiscal 2015 there was a decrease in expenditure from the original projection of $60.1 billion down to $55.6 billion at the end of fiscal 2015. That was a reduction of $4.5 billion.
That is the trend that needs to continue going into 2016. It is quite possible that a seven per cent reduction might be too small to address what the economy is going to face. The original $63 billion budget cannot stay at that level.
What is the political philosophy that will inform the economic choices that are going to be made? Is the Economic Advisory Board prepared to advise the Government to shrink the size of the State through a market-driven approach that will involve privatisation and divestment or is the population going to be taxed to their eyeballs to maintain a state structure that can no longer be fully financed?
Political choices have to be made that revolve around political philosophy that informs taxation policies, investment policies and diversification policies. For example, there is a raging debate in the public domain about the ownership of this country’s foreign reserves.
In the Old Year’s Day edition of the Business Guardian, Business Editor, Anthony Wilson, argued that after the foreign reserves of the country are sold to commercial banks they cease to be part of the national patrimony and, therefore, it is difficult to make a case for their disclosure by the Central Bank. In making his case, Wilson argued thus:
“According to a Republic Bank statement issued on December 7, between January 2013 and December 2015, the Central Bank sold US$5.75 billion to the banking system, which would be authorised dealers of foreign exchange. Between January 2013 and December 2015, the banking system purchased at least US$21.401 billion from the Central Bank and the public of T&T. Of the US$24.401 billion purchased by the banking system, only 26 per cent (some US$5.575 billion) came from the Central Bank with 74 per cent coming from the public.”
This is valuable information supplied by Wilson. It confirms that there is the comingling of the free market in foreign exchange with the State’s intervention into the foreign exchange market. If this were a free market governed by the laws of supply and demand with trading only between commercial banks and the public the foreign exchange rate would be much higher than it is today. The intervention of the State, through the Central Bank, does make a difference.
Once the State is involved in transacting business in the foreign exchange marketplace, there will always be a debate about how far the accountability will go. When prime ministers and finance ministers want to know, in the public interest, where the money has gone, it is the Central Bank that will tell them. Getting those answers without any transparent specifics will tell us nothing.
The upshot of all of this is to make the point about the deeper philosophical issue of the role of the State in the economy. We are back to the debate about the State being the prime mover or being a facilitator. The last time our economic fortunes were down, we had this debate. The gas boom just after the turn of the millennium saw a return of many state enterprises and a rekindling of the thinking of state control of the economy.
If the private sector is to play a meaningful role in the burden of adjustment that is required, then privatisation and divestment must be put on the table for discussion. Labour already has the upper hand in this debate as the JTUM very cleverly negotiated a Memorandum of Understanding with the PNM before the general election which ensures that they will have the edge over the private sector in any tripartite discussion.
The private sector has to work out how they can be competitive in any such discussion. The only leverage they can bring to the table is in the domain of privatisation and divestment. The JTUM MOU is also a powerful negotiating tool that has more political bite than economic bark. If the unions fall out with the Government politically, the economic solutions will be very difficult to implement against the backdrop of local government elections in November, THA elections in January 2017, and not to forget six election petitions and judicial review matters pertaining to the legality of the last general elections that will be heard this year.
Therein lies the politics of the economic choices.
Two Fridays ago, the Parliament hosted an “Oval” to discuss parliamentary scrutiny. The only academic there who researches and publishes in the field of parliamentary affairs was an international colleague of mine, Prof Rick Stapenhurst from Mc Gill University.
It appeared as though Stapenhurst was not being appreciated for what he was trying to get across. Instead, we were subjected to useless discussion about “the king in Cabinet” which completely missed the point about the lack of political consensus on the subject of widening the powers of parliamentary scrutiny.
The best example of this lack of consensus can be seen in the debates over the creation of departmental joint select committees to oversee government departments, municipal corporations, statutory authorities, state enterprises and Service Commissions in the Constitution (Amendment) Act (No 29 / 1999).
Those proposals generated considerable controversy in the society when they were advanced by the Panday administration. There were the so-called “Six Wise Men” who came out publicly against the proposals in 1998.
Debate on the amendment bill started in the House of Representatives on February 24, 1999. In her contribution, the then minister of education Kamla Persad-Bissessar said in part:
“That is why I had to ask whether the Leader of the Opposition was saying that we cannot run these committees, because we do not want that accountability or transparency. This bill, far from giving dictatorial powers to Government or ministers, far from doing that, the provisions in it would place ministers and ministries under complete scrutiny. There will be public hearings about what is taking place. This would open up the functioning; investigate, report on the powers, the methods of functioning and the criteria adopted by all these bodies. (Hansard, February 24, 1999, p 513).
In her contribution, Opposition MP Camille Robinson-Regis said:
“What this bill seeks to do is allow politicians to interfere in the work of the Service Commissions through parliamentary cover and we on this side are stating and insisting that this, in every way, attempts to interfere with the independence of the Service Commissions as established by the Constitution of Trinidad and Tobago.” (Hansard, February 24, 1999, p 521).
At the final vote on the bill, which was taken on April 28, 1999, the House divided 18-14 in favour of the bill. The record of the division was as follows:
Maharaj, Hon R L
Persad-Bissessar, Hon K
Lasse, Dr The Hon V
Griffith, Dr The Hon R
Sudama, Hon T
Maraj, Hon R
Rafeeq, Dr The Hon H
Khan, Dr F
Assam, Hon M
Job, Dr The Hon M
Singh, Hon G
Nanan, Dr The Hon A
Partap Hon H
Mohammed, Dr The Hon R
Singh, Hon D
Ramsaran, Hon M
Robinson-Regis, Mrs C
James, Mrs E
Nicholson, Miss P
(Hansard, April 28, 1999, pp 519-520)
The debate in the Senate started on September 2 and finished on September 4, 1999. There were two temporary senators sworn in on September 4. Nirupa Oudit replaced Kenneth Ramchand, and Carlene Belmontes replaced Joan Yuille-Williams. The final vote was 18-11 in favour of the bill as follows:
Kuei Tung, Hon B
Theodore, Brig The Hon J
Baksh, Hon S
Phillips, Dr The Hon D
Gangar, Hon F
Cuffy Dowlat, Mrs C
Tota-Maharaj, Mrs V
Williams, Mrs A
Teemul, Mrs E
Spence, Prof J
Mahabir-Wyatt, Mrs D
Teelucksingh, Rev D
Oudit, Mrs N
Mohammed, Miss N
Alfred, Miss C
Belmontes, Miss C
St Cyr, Dr E
Mc Kenzie, Dr E
Kenny, Prof J
On September 6, 1999, the Senate amendments to the bill were taken to the House of Representatives for ratification. In winding up the debate on those amendments, Attorney General Ramesh Lawrence Maharaj said: "But, Mr Speaker, the amendments make the other Service Commissions accountable to Parliament and this is the first time in the Caribbean you are going to have this. You have it in other parts of the world. But, in effect, what it does is, the Government has been successful in getting the other place to agree that independent Service Commissions should be accountable to the people through the Parliament. In principle, that has been agreed." (Hansard, September 6, 1999, p 785). The House divided 19-8 in favour as follows:
Maharaj, Hon R L
Panday, Hon B
Persad-Bissessar, Hon K
Lasse, Dr The Hon V
Griffith, Dr The Hon R
Humphrey, Hon J
Rafeeq, Dr The Hon H
Khan, Dr F
Assam, Hon M
Job, Dr The Hon M
Nanan, Dr The Hon A
Partap, Hon H
Mohammed Dr The Hon R
Singh, Hon G
Ramsaran, Hon M
Singh, Hon D
Maraj, Hon R
James, Mrs E
(Hansard, Sep 6, 1999, pp 785-786).
A war has broken out between Guardian Business Editor, Anthony Wilson, and Joseph Remy of the Communication Workers Union (CWU) over the issue of the sale of the so-called “crown jewels” of the economy of this country. The idea was recently broached by Wilson in the Business Guardian two Thursdays ago, and there was a swift retort from Remy in full-page advertisements in both the Express and the Newsday condemning the proposal.
Therein lies the major challenge for the PNM Government as their MOU with the Joint Trade Union Movement may not allow them the wiggle room that they would like where the policy options of privatization and divestment are concerned.
Wilson’s article is perhaps the spark that has opened up a debate with the JTUM who have formed the view that he is being used as a front for an agenda of privatisation which is anathema to them.
In a press conference at the CWU headquarters last Monday, the JTUM made their condemnation of Wilson’s article quite clear. As far as they are concerned, the Government has to keep TSTT, Petrotrin, FCB, the National Gas Company and Phoenix Park Gas Processors out of private hands.
According to General Secretary of the CWU, Joseph Remy:
“So you’re going to make a one-off capital sale, bring in money and reduce your ability to earn recurrent revenue on an annual basis. Now that has to be a most flawed and illogical way of making an economic argument because you are going to have a one-off sale, bring in capital and what is going to happen on a recurrent basis when you don’t earn revenue from these State entities?”
It appears that the battle lines are being drawn with the Government. In his budget presentation, Finance Minister Colm Imbert spoke quite clearly when he said:
“Madam Speaker, these taxation measures are estimated to yield an additional $5.2 billion and reduce expenditure by $340 million, by commencing the process for reforming the fuel subsidy. They will be supplemented by a sale of assets programme and the receipt of extraordinary dividends projected to yield a further $13.4 billion, including partial repayment by Clico relating to the Government’s financial support; proceeds from the initial public offer of Trinidad and Tobago NGL Ltd; capital repayment from Trinidad Generation Unlimited; dividends from the National Gas Company.” (Hansard, October 5, 2015, p 33)
What is causing the disquiet among the trade unions is the Government’s stated intention to engage in “a sale of assets programme” which is being regarded as a means by which there will be revenue generation in this fiscal year. In the absence of any specifics, there is some measure of nervousness as regards which “assets” are likely to be sold.
With the appointment of Dr Terrence Farrell by the Government to chair an Economic Advisory Board and a review of his December 14, 2015, column in the Express titled Mischief and Misinformation, where his view of what constitutes “national patrimony” in respect of foreign exchange comes through very clearly, it is obvious that the trade unions have a problem with him.
Eugene Reynald, writing in a post on the website of the CWU on December 23, 2015, had this to say about Farrell’s argument:
“My main concern is with the right being claimed, by the parasitic oligarchy and their agents, to confidentiality and secrecy in their interactions with supposed trustees of the people’s patrimony when such patrimony of citizens is being transacted. The rationalisation put out by Farrell, who is the main economic advisor to Cabinet, is an argument for the right being claimed by the oligarchy and their agents.”
Anthony Wilson has raised the issue of the Government considering the sale of the so-called “crown jewels”. In so doing, he has included Terrence Farrell as a favourable source of analysis for such a move. In his column in the Business Guardian last Thursday, he quoted from an address by Farrell to the Barbados Chamber of Commerce that justified the privatization of these “crown jewels.” He ended his column rather defensively by saying—“I repeat: Terrence Farrell, who advises the Prime Minister said so.”
What is emerging is a political chasm between government and labour over the question of the “sale of assets” proposed by the Minister of Finance in the budget statement on October 5 last, and the growing insecurity of the trade unions over where the Government really stands on the issue. That insecurity is fuelled by Farrell’s position of influence in relation to the ear of the Prime Minister and his public comments in newspaper columns that confirm his ideological position. The trade unions have conveniently used Anthony Wilson as their target for advertising their displeasure with any such move to sell the “crown jewels.” However, Wilson is not the real target. The real showdown will come when a specific “asset” is named for privatization. That will test the political will of the Government and their MOU with the JTUM. Farrell and David Abdulah may split the Economic Advisory Board on this issue.
The decision of the Judicial Committee of the Privy Council to uphold the decision of the Parliament of this country, upon a recall by the then government in September 2012, to repeal the now infamous Section 34 has raised issues of “vindication.”
The Administration of Justice (Indictable Proceedings)(Amendment) Act 2012 specifically repealed retroactively the provisions of Section 34 of that act. There was unanimous support for the amendment in the House of Representatives when the bill was debated there on September 12, 2012.
However, there was a split among the independent benches in the upper House on the following day when the bill was debated there.
Five of the nine independent senators voted against the repeal of Section 34. They were Dr Rolph Balgobin, Elton Prescott, SC, Dr James Armstrong, Dr Lennox Bernard, and Corinne Baptiste-Mc Knight.
Indeed, then Senator Prescott had an interesting exchange with then attorney general Anand Ramlogan, SC, as follows during the Senate debate. Prescott said:
“I may be the only person today who is prepared to say it. Do not repeal Section 34.
Sen Ramlogan, SC: “What about the consequences?”
Sen E Prescott, SC: “I have asked the clerk to prepare some suggestions for amendment.” (Hansard, September 13, 2012, p. 65).
In the subsequent public articulation of his views, then Senator Prescott went to a forum at the UWI St Augustine campus organised by the Sir Arthur Lewis Institute of Social and Economic Studies (Salises) on October 3, 2012, titled, Section 34: Dealing with the Issues. According to Asha Javeed writing in the Express on October 4, 2012, under the headline “Ish and Steve will go free,” she reported that Senator Prescott told the forum the following: “It is my view that those applicants under the now repealed Section 34 are going to challenge the constitutionality of the repealed legislation and it is my view that they will do so successfully.”
According to Javeed:”The normally reserved Prescott prefaced his comments by stating he was ‘not going to protect myself today.’”
According to Javeed, Prescott also said: “It is my view that we were doing the wrong thing and it is not going to stand scrutiny.”
Javeed also included in her report statements made by then opposition senator (and now Attorney General) Faris Al-Rawi who was also a panellist at the forum and he commented on the debates in Parliament on the repeal of Section 34.
According to Javeed, Al-Rawi said: “Those very Hansard debates are going to be used by the courts of this land and elsewhere to argue that the repealing legislation is ad hominem because it was designed to affect those people.”
The Privy Council did consider the issue of the debates in Parliament. They dealt with this matter in paragraph 33 of their judgment as follows: “Parliamentary debates may be admissible to prove facts from which the mischief of an enactment can be inferred, if this is not apparent from its terms. But that is not the purpose for which Mr Beloff is in reality seeking to use it. He relies on the debates as evidence of the motives of the legislators who spoke. This could be justified only if the Constitution posed questions which had to be answered by reference to the state of mind of individual parliamentarians. In the Board’s opinion, it does not. The test being objective, the motives of parliamentarians are irrelevant.”
Senior Counsel Reginald Armour also had concerns about the repeal legislation in respect of Section 34. Writing in the Guardian on September 13, 2012, under the headline, “Warning of pitfalls, in Section 34 repeal: Law must not target any individual” Armour said: “This is an enormous challenge for the Government’s legal draftsmen and women, and for the legislators who assemble to debate and pass this repealing legislation. And whether that horse has already bolted the stable will only be determined in the years to come, when the Privy Council will once more be called on to pronounce on how we should behave—since it is inevitable that the repealing legislation will be challenged as ad-hominem legislation.” (p. 9).
According to Javeed, opposition senator Al-Rawi also told the October 3, 2012, Salises forum: “The horse has bolted. The constitutionality of the repealed legislation is going to be challenged. There is risk of ad hominem (directed to the man) debate prevailing. It speaks to whether legislation is going to be held to be unconstitutional for running afoul of the separation of powers principle in telling the judiciary that it must do something. The important subset of that is whether you are directing a law to affect certain people only.”
The Privy Council addressed the separation of powers and the ad-hominem arguments and concluded as follows: “But it does not follow that the Amending Act was targeted at the appellants. Sometimes the facts of a particular case simply exemplify the need for a general law.” (para. 32).
“The Board concludes that the Amending Act did not violate the principle of the separation of powers.” (para. 34).
On January 24, the PNM turned 60 years old. Quite surprisingly, there was an absence of fanfare to mark the occasion. That being strange enough, the annual “Soca in the Balisier” fete which has become a traditional event on the Carnival calendar was tagged with an additional line that said “Celebrating our 60th Anniversary.”
One formed the impression that the party was going to use the occasion to “celebrate” its sixtieth anniversary. Shockingly, the event was cancelled and no explanation was given. By any stretch of the imagination, this was strange for the oldest political party in the country.
As a party that came back to power mere months before its sixtieth anniversary, one would have thought that some kind of fanfare would have been associated with the occasion. What was being celebrated would have been the formal launch of the party at Wooford Square on January 24, 1956, by the first political leader, Dr Eric Williams.
Other members on the first executive of the party were Mr Learie Constantine (chairman), Dr Ibbit Mosaheb (vice-chairman), Mrs Isabel Teashea (lady vice-chairman), Mr Donald Granado (general secretary), Mr Kamaluddin Mohammed (assistant general secretary) and Mr Ulric Lee (labour relations officer).
While the PNM of today has not marked the occasion of their sixtieth birthday with any significant event, they ought to be aware of the struggles that Dr Williams faced as he laboured to establish a political party that would come to dominate the politics and society of this country.
Naturally, his activities were being monitored by the colonial authorities ahead of the formal launch of the party. In a declassified Colonial Office file that contained the political report from the Governor, Sir Edward Beetham, to the secretary of state for Colonies, Alan Lennox-Boyd, for the months of August and September, 1955, Beetham reported, in part, at paragraph 10 as follows:
“In September Dr Eric Williams continued to hold lectures all over the island and was heard with the same enthusiasm as in recent months by large crowds, the average peak attendance at his eight lectures being 619. The subject on which he spoke throughout the month was ‘The Case for Party Politics in Trinidad and Tobago.’ It would appear that Dr Williams intends to launch his political party on the lines of the People’s National Party of Jamaica for which he expresses admiration. He has deplored the lack of organisation in local politics and has stated his aim as being ‘the education of the masses’ with the object of achieving a politically educated electorate.” (October 11, 1955).
It was clear that Williams had seen an opportunity for the creation of an organised political party because the nature of the political landscape at the time was very disorganised. The advent of the PNM changed all of that. There was a structure put in place that included a party constitution, constituency groups and party groups, annual conventions, as well as a founding document called “The People’s Charter.”
With such a rich political history, it is baffling to the average person looking on from outside as to why there has been no fanfare to mark such an auspicious occasion for an organisation that has woven itself into the mosaic of the society.
This year will also make the sixtieth anniversary of when the PNM first captured political power in the general elections that were held on September 24, 1956. The advent of the PNM into the corridors of power was facilitated by the Governor, Sir Edward Beetham, based on instructions from the Colonial Office.
The result of the election did not give the PNM an overall majority in the Legislative Council as the party had only won 13 out of 24 elected seats. Williams needed to get at least two of the five nominated members in order to have 15 out of 29 in the Legislative Council.
According to a now declassified confidential intel circulated after the installation of the new government, the Colonial advised as follows:
“Immediately after the election the Governor, Sir Edward Beetham, sent for Dr Williams and offered him his co-operation in forming a Government. Dr Williams then asked that his nominees should be appointed to fill nominated seats, and this request at first threatened to give rise to some constitutional difficulty.” (No 198 Intel, Confidential, November 8, 1956).
The potential “constitutional difficulty” was resolved by the Colonial Office on the basis of the following directive also contained in the intel cited above:
“In Trinidad, therefore, the emergence of a majority party was recognised as calling for some modification of the principles of the 1949 despatch. The Secretary of State therefore authorised the Governor to ‘take such steps by way of nominating suitable persons to the Legislative Council, after consultation with the leader of the majority party, as will provide a reasonable working majority for that party.’”
On the basis of this directive from the Secretary of State for the Colonies, the Governor appointed Messrs W J Alexander and C A Merry as the two PNM nominated members which allowed the PNM to govern.
The recent announcement from St Kitts/Nevis last month that the Government is considering the issue of accession to the appellate jurisdiction of the Caribbean Court of Justice (CCJ) is duly noted in the public domain.
The CCJ continues to assert that countries joining it will “complete the cycle of their independence” upon severing their link with Her Majesty’s Privy Council.
I have challenged the CCJ on this point in previous articles on the ground that a convention has arisen that the Chief Justice of the CCJ becomes a member of Her Majesty’s Privy Council. The basis of my argument is based on the fact that both Michael de la Bastide and Sir Dennis Byron became members of the Privy Council in 2004 just prior to the CCJ coming into existence.
For me, where the conundrum arises is in the conflict between asserting the severing of the links of countries from their recognition of the Judicial Committee of the Privy Council as their final court of appeal, while the Chief Justices of the CCJ have retained personal links as members of Her Majesty’s Privy Council.
How do you lobby for termination of the link to the Privy Council, while retaining your personal membership of the very same body having regard to the nature of the oath that is taken by anyone who becomes a member of Her Majesty’s Privy Council?
Everyone who becomes a member of the Privy Council recites the following oath:
“You do swear by Almighty God to be a true and faithful Servant unto the Queen’s Majesty as one of Her Majesty’s Privy Council. You will not know or understand of any manner or thing to be attempted, done or spoken against Her Majesty’s Person, Honour, Crown or Dignity Royal, but you will let and withstand the same to the uttermost of your power, and either cause it to be revealed to Her Majesty Herself, or to such of Her Privy Council as shall advertise Her Majesty of the same. You will in all things to be moved, treated and debated in Council, faithfully and truly declare your Mind and Opinion, according to your Heart and Conscience; and you will keep secret all Matters committed and revealed unto you, or that shall be treated of secretly in Council. And if any of the said Treaties or Councils shall touch any of the Counsellors, you will not reveal it unto him, but will keep the same until such time as, by the Consent of Her Majesty, or of the Council, Publication shall be made thereof. You will to your uttermost bear Faith and Allegiance unto the Queen’s Majesty; and will assist and defend all Jurisdictions, Pre-eminences and Authorities granted to Her Majesty and annexed to the Crown by Acts of Parliament, or otherwise, against all Foreign Princes, Persons, Prelates, States or Potentates. And generally in all things you will do as a Faithful and true Servant ought to do to Her Majesty. So help you God.”
(See: David Rogers-By Royal Appointment, Biteback Publishing Co, London, 2015, pp. 2-3).
The revelation of the oath of a Privy Counsellor by Rogers in his book has unearthed the dimension and scope of the duty of personal loyalty to Her Majesty that must be undertaken by anyone who takes that oath.
Without the oath, you cannot become a member of Her Majesty’s Privy Council. It has been publicly advertised that both Michael de la Bastide and Sir Dennis Byron are members of Her Majesty’s Privy Council. At the same time, the former was and the latter is the Chief Justice of the Caribbean Court of Justice.
The position of the CCJ is that the independent countries of the Commonwealth Caribbean should complete the cycle of their independence by severing links with the Privy Council and adopting the CCJ as their final court of appeal.
How does one interpret that part of the oath that says: “You will to your uttermost bear Faith and Allegiance unto the Queen’s Majesty; and will assist and defend all Jurisdictions, Pre-eminences and Authorities granted to Her Majesty and annexed to the Crown by Acts of Parliament, or otherwise, against all Foreign Princes, Persons, Prelates, States or Potentates. And generally in all things you will do as a Faithful and true Servant ought to do to Her Majesty.”
This will require further research and investigation now that it has been revealed. It will be difficult for anyone who has taken that oath to speak out publicly about any interpretation of the oath itself because of the personal burden of secrecy imposed upon such a person.
However, as a region coming to terms with the narrative of the court to complete the cycle of independence by severing our links to the Privy Council, it is something about which we must pause and consider.
Is it possible that a privy counsellor can resign their membership of the Privy Council?
According to Rogers: “Being able to resign was a new development and it is still questionable whether this is constitutionally correct.” (p. 10).
The PNM edict from Balisier House to its treasurer, Raymond Tim Kee, was that he should resign as mayor of Port-of-Spain for his comments made on Ash Wednesday about women in Carnival. Those comments were made in response to the death of a Japanese visitor who was found dead in her Carnival costume in the Queen’s Park Savannah on Ash Wednesday.
Tim Kee’s comments were made without his knowledge of anything other than the simple discovery of a body. He went further to invite his audience to let their “imagination flow.” As a public official, he was grossly insensitive in his remarks about the likely circumstances of the death.
When asked about Tim Kee’s remarks on Thursday at the Point Cumana Regional Complex, Prime Minister Dr Keith Rowley said that the remarks did not warrant dismissal.
However, by Sunday morning at Piarco International Airport, Rowley had changed his mind and he was now deeming the comments to be “unacceptable.”
What caused him to change his mind? In the interim, there were negative reactions to Tim Kee’s botched apology, there was an online petition seeking support for Tim Kee to resign, a pressure group by the name of WomanTra TT held a public demonstration in Woodford Square and the demonstrators went to City Hall and delivered a letter calling on Tim Kee to resign, and a group of people demonstrated outside of the T&T High Commission in London where they also delivered a letter through the letterbox of the High Commission calling for Tim Kee to go. All the while, social media was red hot on the issue and the Washington Post picked up the story.
By February 13, Tim Kee had cracked. He issued the following statement on a Port-of-Spain City Corporation letterhead:
“I have noted the continued outrage and hurt over statements attributed to me. I deeply regret the consequences of these statements, and I apologise unreservedly to those who have been affected. I consider the reaction has been sufficient to cause damage to the Office of the Mayor of Port-of-Spain, which any holder of this office should be concerned to protect at all costs. It is in these circumstances, why I intend to call an emergency meeting of Council, and tender my resignation as Mayor, and as an Alderman.”
Rowley’s statements on Sunday morning at Piarco were clear:
“I feel his comments were clearly unacceptable but he has stated his intention to resign. As far as we’re concerned it’s been addressed.” (Guardian, February 15, 2016).
Party chairman Franklin Khan, who is also Minister of Local Government, made it quite clear to reporter Ria Taitt that Tim Kee “had transgressed in a way that angered the nation and his resignation was the only right thing to do at this point in time. I think it is advisable that he does the honourable thing and submit his resignation in the shortest order,” (Express, February 15, 2016).
According to the report, the PNM chairman said he completely supported the position of the Prime Minister and the PNM Women’s League on this matter.
With the political leader, the party chairman and the chairman of the Women’s League all expressing the same view, Balisier House had ruled and Tim Kee had to go. However, there was clear resistance to this edict and when the corporation met on Monday morning, Tim Kee did not submit his resignation as promised. There was some orchestration of a resistance movement outside of the corporation and some councillors decided to challenge the Balisier House ruling.
My UWI colleague, Prof Selwyn Ryan, took to the letters pages of the Express to join the resistance movement against Balisier House to call for Tim Kee to stay. According to Ryan:
“I read with horror and amazement that Raymond Tim Kee, Mayor of Port-of-Spain, had opted to resign because the feminist community had put pressure on him to do so because of statements that he had allegedly made in response to the murder of the Japanese visitor to our shores.” (Express, February 15, 2016).
Despite Ryan’s contradiction of Rowley, Tim Kee eventually resigned the following day. The resistance movement had failed and Balisier House prevailed. The final push for Tim Kee to go came from Opposition Leader Kamla Persad-Bissessar, who issued her second press release on February 15, calling Tim Kee’s failure to tender his resignation letter that day nothing more than a “charade.” Her first release on Ash Wednesday called for him to be fired.
If the resistance movement had succeeded, it would have put egg all over the faces of Rowley, Khan and Robinson-Regis and would have validated Persad-Bissessar’s assertion about a “charade.”
With Tim Kee gone, questions are now being asked about the mayor of Point Fortin, Clyde Paul, who had come out publicly in support of Tim Kee and made predictions about the autopsy and whether certain people could handle what would be found in it. Will Balisier House be consistent or was there another reason for dismissing Tim Kee?
Last Monday, Prime Minister Dr Keith Rowley created a firestorm of controversy when he told the National Consultation on Education session in Tobago that “parents were breeding monsters and sending them to the teachers.”
That led to former minister of education Dr Tim Gopeesingh calling on Rowley to apologise for the remarks. However, National Parent Teacher Association president Zena Ramatali told the Express that, “I felt it was a slip of the tongue on behalf of the Prime Minister because he has been so hurt and speaking about the failure of the education system over a long period of time. So I guess he had an adrenaline rush when he made that statement. I really do not believe that he thinks that the children are monsters…So I really hope that we wouldn’t crucify the Prime Minister for the statement entirely.” (Express, February 24, 2016, p 5).
However, Social Development and Family Services Minister Cherrie-Ann Crichlow-Cockburn, in publicly contradicting her Prime Minister, told Newsday that she does not see children as “monsters” but, “persons who are in need of assistance.” (Newsday, February 24, 2016, p 5).
All of this is really a renewed discussion about political quarrels that take us back 16 years or more when the same type of discussion was taking place.
In 2000, there was a Private Member’s Motion brought by the MP for Diego Martin East Colm Imbert on the High Incidence of Crime that was debated in the House of Representatives. Some of the language being used today was aired before.
One of the then government’s spokesmen was the MP for Tobago East and cabinet minister Dr Morgan Job. The following excerpts from the Hansard for July 28, 2000, involving Dr Job and Dr Keith Rowley, MP for Diego Martin West, are instructive.
“Dr The Hon M Job: November 25, 1995 or whatever it is. So anybody who came into Trinidad and Tobago by birth after that date is less than five years old. Am I right? So I do not understand. All these monsters that are being described in such gruesome fashion by the Member from Diego Martin East must have been nurtured under the PNM government or the NAR government. PNM has been in this country since 1956 and there are grandmothers in the Beetham and elsewhere in this country whose average age is 25 years. They did not deal with it. When I wanted to talk about it so that they could have dealt with it, they closed down my radio programme.” (Hansard, July 28, 2000, p 744).
In the debate, Dr Rowley said of prime minister Panday and Dr Job as follows:
“Because I am hearing his puppy dog talking about: he grew up in Laventille, therefore, he knows Laventille people are swine and child molesters. Mr Speaker, I grew up in poverty in the back of this country at Mason Hall in Tobago in a large family and I know what it is for public policy to impact on a generation of people. I was the first person in my family to go to high school. My brothers who are older than I am, I am sure they were brighter than I was, but Eric Williams came too late for them. So, today, when these people, in trying to construct their election campaign, seek to treat with education in this context, I just say, ‘Carry on. We will meet you on the hustings.’” (Hansard, July 28, 2000, p 780).
The reality is that the issue of the connection between the education system and crime has been a political football being kicked back and forth with no solution in sight. Dr Job has remained consistent in his advocacy of addressing illiteracy and innumeracy and the link to crime.
Many opposed to Job have argued that his language is unworthy of providing any proper insight into the debate. The Prime Minister has now used language to describe some children today that is more akin to what Job has been using for more than 20 years.
Is there now a meeting of the minds and a closing of the gap? Or did the Prime Minister have a slip of the tongue as Ramatali would have us believe? There has been no retraction from Rowley so one would have to assume that Ramatali was attempting to shield him from any possible controversy over his remarks, while he is not seeking anyone’s protection.
Dr Rowley is no stranger to controversy where his remarks are concerned. In the past, he has apologised and he has changed his mind if he thought that it was necessary to do so. In this instance, he has remained silent.
He and Minister Cockburn may have differing views on the matter and they can sort that out between them in private, while his outlook and that of Dr Job may have gotten closer some 16 years later.
If Job and Rowley are closer now than before, maybe there is hope in addressing the problems of so-called “monster” children, their teachers and crime.
Last Wednesday, the Judicial Education Institute held its sixth annual Distinguished Lecture which was delivered by Prof Richard Drayton, Rhodes professor of Imperial History at King’s College, London.
Lecturing on the topic Whose Constitution? Law, Justice and History in the Caribbean, Prof Drayton took the audience through a maze of historical data that confirmed for his audience the very British foundations of our constitutional structures.
I was pleased that he cited a quote from Eric Williams from July 19, 1955, that I have used very often in my own writings, in which Williams said:
“Ladies and gentlemen, I suggest to you that the time has come when the British Constitution, suitably modified, can be applied to Trinidad and Tobago. After all, if the British Constitution is good enough for Great Britain, it should be good enough for Trinidad and Tobago.”
That statement was made by Williams in Woodford Square in a lecture delivered under the auspices of the Teacher’s Educational and Cultural Association, and Drayton delivered his point effectively by saying that Williams had delivered it “just across the road” using his finger to point the way from his perch on the podium in the Hall of Justice.
If there was one statement that highlighted the context of the entire constitutional process for T&T, it was that one. Many people who stepped forward to ask questions or make brief statements before asking a question touched on many aspects that lie at the core of the functioning of the judicial process or impinge on the functioning of the judicial process.
There was an impassioned plea from the president of the Law Association, Reginald Armour, SC, for T&T to accede to the appellate jurisdiction of the CCJ. Armour went on to regale the audience with the virtues of the CCJ.
The occasion was a good one that allowed for a reasonably dispassionate approach to discussion on matters that would otherwise be regarded as contentious. The Chief Justice, Ivor Archie, sought to broaden the responsibility for discussion on constitutional reform by suggesting that it was a responsibility in which many other sectors in society besides the legal profession ought to be involved.
A young student from the US Virgin Islands, who had only been in the country for about six months, made what was one of the more perceptive statements of the evening when she raised the issue of identity in relation to reform and posited that if the Constitution was out of line with our identity then there would be a clear movement to reform it.
That statement tied directly into the Williams narrative of 61 years ago about T&T having “the British Constitution, suitably modified…”
In my own work, I have contrasted Williams’ statement with one made by Norman Manley in the Jamaican House of Representatives on January 24, 1962, in which he said:
“Let us not make the mistake of describing as colonial, institutions which are part and parcel of the heritage of this country. If we have any confidence in our own individuality and our own personality we would absorb these things and incorporate them into our being and turn them to our own use as part of the heritage we are not ashamed of.”
Manley did not accept the Williams narrative that our institutions should be imported, but rather argued that they were indigenous by evolution and should be embraced as ours.
While his comments were made in relation to Jamaica, they have currency throughout the entire Commonwealth Caribbean insofar as they establish that our institutions are indigenous by virtue of colonial evolution and continuance.
This has obviously been lost on the proponents of the CCJ to replace the Privy Council. For many people, the Privy Council is not alien to their societies and so the argument about “completing the cycle of independence” is intellectually deficient because of the organic links between our constitutional history and our institutional bases.
The knighthood and membership of Her Majesty’s Privy Council are deeply cherished and desired gold standards of Commonwealth Caribbean public and judicial service recognition. There is a natural organic link between our CCJ and the Privy Council insofar as knighthoods and membership of Her Majesty’s Privy Council are concerned.
Antigua and Barbuda, Barbados and St Lucia have instituted their own national awards which now have locally-created knighthoods as their highest awards. The conferment of the titles of “Sir” and “Dame” have continued along the path outlined by Norman Manley some 54 years ago in Jamaica, to the extent that the evolutionary process has now made knighthoods part of the local recognition for national awards.
The oath of office for a Privy Counsellor is indeed very burdensome on the individual to protect the person of Her Majesty Queen Elizabeth II, her heirs, and her successors.
We argue about this matter without recognising the natural organic connection between the two. We live in a region whose identity is defined by its connection to the British honours system, whether you take the Williams narrative of 1955 or the Manley corollary of 1962.
The revelation last week that the actual medal and citation for the Order of T&T that was bestowed, posthumously, upon the late labour leader Adrian Cola Rienzi, was up for sale on the auction site eBay caused great consternation in the society.
The handlers of the sale are a well-known Canadian company that trades in coins, stamps and other artefacts. The current controversy will make the item up for sale even more attractive owing to the fact that the legacy of the man behind the award is so rich, yet not widely known in this country.
Whatever the motivations of the family in Canada to part with the 18 carat gold award on commercial terms, there is family evidence to show that the legacy of the great leader is not very well known among his own descendants.
In a story by Marsha Mokool in the Guardian of September 24, 2007, the English-born grandson of Adrian Cola Rienzi, on a visit to Trinidad, revealed his own lack of awareness of his grandfather’s history. According to Mokool:
"The grandson of trade unionist Adrian Cola Rienzi didn’t know about his legacy until he turned 18. And that was only 13 years ago…How ironic is it then that his English grandson Paul Holmes knew nothing about his own heritage, until recently. Holmes, who was born and raised in England, visited Trinidad for the first time in August, timing his visit with the Independence parade in Port-of-Spain."
This 2007 Guardian story may provide an insight into the controversy that has arisen about the sale of the ORTT that was awarded to Rienzi and collected in 2012 by his son, Robert Waugh, who lives in Canada. The local media has been unable to contact Waugh to get a comment from him, while the 2007 Guardian story confirms an absence of family storytelling about the outstanding legacy of a man whose footprint on the labour movement has largely been suppressed locally, for whatever reason.
As the founding president-general of both the Oilfields Workers Trade Union (OWTU) and the All-Trinidad Sugar Estates and Factory Workers Trade Union as well as other unions, Rienzi has etched for himself a prominent place in the history of this country as being a key person in the intelligentsia of the labour movement of the 1930s and 1940s. If anyone embodied the unity between oil and sugar, it was Rienzi.
He was born in 1905 and changed his name from Krishna Deonarine to Adrian Cola Rienzi in 1927 naming himself after a British magistrate Adrian Clarke and a fourteenth century Italian reformer by the name of Cola di Rienzi who led struggles against the Italian nobility.
According to the Nalis biography on Rienzi:
"Earlier, in January 1938, under the banner of the trade union movement, Rienzi fought and won the seat for San Fernando at the Legislative Council elections that year. Speaking in the Legislative Council on June 16, 1939, he called for the observance of June 19, the anniversary of the Oilfield Riots, as a public holiday. He was ridiculed then, and he heard Captain Cipriani declare: ‘All those who have the best interests of the working classes at heart, would like to forget forever June 19, and are not asking for the making of a day for the adulation of false heroes.’"
Whether his differences of opinion with Cipriani over the issue of the commemoration of June 19 as Labour Day in this country may account for his relatively suppressed recognition as an icon of the labour movement in this country, one has to recognise that in 1973 the Eric Williams government declared June 19 public holiday and called it Labour Day.
The fact that two years after the June 19, 1937 riots at Fyzabad it was Rienzi, in the Legislative Council, who called for the recognition of that day as a public holiday, has largely been swept under the carpet of history is significant.
Perhaps, the real tragedy is that on that day itself every year there is not even polite mention of his name. As the creator of a newspaper that is well-known in union circles called "The Vanguard," Rienzi understood the nature of the challenge in moving the labour movement forward. Readers of the Vanguard today would not even know who created the paper and the legacy behind it.
The relationship between Rienzi and Tubal Uriah Butler was very good and Rienzi was very protective of Butler during his struggles with the colonial authorities.
While there has been outrage expressed in many quarters about the ORTT and its online sale, it was the ANSA McAL statement by group Chairman A Norman Sabga that captured both issues (the ORTT status and the Rienzi legacy) very succinctly as follows:
"It will be a shame and dishonour to the country’s highest award and to the legacy of its awardee, Adrian Cola Rienzi, if the honour inherent in the ORTT medal is not returned to our beloved country."
ANSA McAL made a bid for the medal to return it here.
After mounting public and political pressure, Prime Minister Dr Keith Rowley made his first Cabinet reshuffle six months into office with the dismissal of Marlene McDonald as Minister of Housing.
It brought to an end an internal PNM battle that started in 2014 when the Sunday Guardian first exposed that forces inside the PNM were lobbying Dr Rowley to prevent McDonald from being a candidate for the 2015 general election.
The Sunday Guardian story on December 14, 2014, by investigative reporter Renuka Singh under the headline IC PROBES MP MC DONALD stated:
“People’s National Movement (PNM) Chief Whip Marlene McDonald is under attack by a secret group named TnT Whistleblower. The group, claiming to be supportive of the PNM, has emailed party leader Dr Keith Rowley, threatening to go public with a series of allegations against McDonald. The Sunday Guardian understands that this matter was already raised at the Integrity Commission. The Sunday Guardian was also informed that the matter had been reopened and was currently under investigation. The list of allegations emailed to Rowley includes her involvement in a ‘fake NGO (non-governmental organisation)’ called Calabar Foundation, which the group claimed is headed by McDonald’s common-law husband, his brother and a colleague at the Diego Martin Credit Union.”
That internal PNM battle spilled over to the UNC as Guardian reporter Kevon Felmine, writing under the headline PM TO EXPOSE “MARLENEGATE” in the Guardian on March 24, 2015, in relation to then prime minister Kamla Persad-Bissessar at a UNC Monday Night Forum at Debe Junction, on March 23, 2015, reported as follows:
“But soon after she showed the crowd a huge red file of documents before promising to reveal all on what she called Marlenegate, in an apparent reference to PNM Port-of-Spain South MP Marlene McDonald. Clarifying that it was not Local Government Minister Marlene Coudray, she said, ‘I have a file, which I will leave for another night. This file is called Marlenegate. I am not speaking about Marlene Coudray. As I said we have others to share with you at another time on another day.
This and other gates we will provide to you as we expose the Opposition for the hypocrisy, for the double standard and for their incapability of ever governing Trinidad and Tobago.’ She also promised to expose a MP who has the Parliament paying an employee who lives in the United States. ‘On another night I want to ask which Member of Parliament has a worker working in their constituency collecting pay and that person is living in the United States of America,’ she said.”
Last week, this one-year-old story came to life once more as an addition to other stories in relation to Marlene McDonald.
In responding last year to these allegations made by Persad-Bissessar at the Monday Night Forum, Leah Sorias reported in the Express under the headline Marlene mum on ‘Marlenegate’ on March 25, 2015, as follows:
“Opposition Chief Whip Marlene McDonald said she will wait to hear what files Prime Minister Kamla Persad-Bissessar claims to have on her before she speaks out. ‘I am not going to comment on that. I have to wait to hear what the Prime Minister has to say,’ McDonald told the Express by phone yesterday.”
In the same story, Sorias went on to report:
“Persad-Bissessar said when she raises these issues it is deemed ‘bacchanal’, but she is educating the people about the choices they have to make in selecting whom they want to lead this country and ensuring good governance. She said the People’s National Movement (PNM) is not in government and there is a Member of Parliament abusing their office.”
At 9.43 pm on March 23, 2015, TV6 reporter Kejan Haynes tweeted on the hashtag #Marlenegate: “Really, they paying Ernie Ross all this money and he can’t come up with better names for scandals?”
Shaliza Hassanali reporting in the Sunday Guardian on March 29, 2015, under the headline POS SOUTH: BRING IT ON! wrote:
“Bring it on! That was the response of some constituents of Port-of-Spain South, two days after Prime Minister Kamla Persad-Bissessar waved a thick file labelled ‘Marlenegate’ and threatened to expose People’s National Movement (PNM) MP for the area Marlene McDonald.”
Later in the report, one Sea Lots resident said:
“I think the Marlenegate file Kamla promised is just a red herring. They are trying to bring down our MP, but they will not succeed. Bring it on!”
The allegations made by Persad-Bissessar in March last year, were downplayed for whatever reason.
Kirk Waithe and his pressure group Fixin’ TNT has been relentless in their pursuit of McDonald ever since the PNM returned to power. He was using the same information that Persad-Bissessar was using.
Dr Rowley had known about the problem since 2014 and took a chance which backfired because powerful forces inside the PNM wanted McDonald gone. He was left with no choice as those forces were prepared to turn on him if he did not act eventually.
On Tuesday coming, exactly 40 years ago to the day, our Republican Constitution received its assent from the then governor-general, Sir Ellis Clarke.
That ushered in a Constitution that was a cosmetic alteration from what existed before insofar as there was little departure from the British traditions that have laid at the foundation of our system of government.
The philosophical essence of our constitutional arrangements was best captured in a speech made by Dr Eric Williams at a public meeting on July 19, 1955, in Woodford Square, Port-of-Spain, before he had entered electoral politics in which he said:
"The Colonial Office does not need to examine its second hand colonial constitutions. It has a constitution at hand which it can apply immediately to Trinidad and Tobago. That is the British Constitution. Ladies and Gentlemen, I suggest to you that the time has come when the British Constitution, suitably modified, can be applied to Trinidad and Tobago. After all, if the British Constitution is good enough for Great Britain, it should be good enough for Trinidad and Tobago." (Eric Williams, Constitution Reform in Trinidad and Tobago, Public Affairs Pamphlet No 2, Teachers' Educational and Cultural Association, Trinidad, 1955, p 30).
What we must understand here is that Williams’ advocacy of the British Constitution in a suitably modified format was his way of saying that the British constitutional formula was one that we could adopt as our own because we did not have an indigenous system of government.
Indeed, his entire stewardship as chief minister, premier and prime minister of T&T represented a defence of the British Constitution suitably modified and when the greatest opportunity of all presented itself for constitution reform in 1971 when his People’s National Movement (PNM) won all of the seats in the general election, he adopted the approach of engaging in a further suitable modification of the existing constitution which was already a suitably modified version of the British Constitution.
Williams’ manner of thinking, when contrasted with a speech by his colleague premier in Jamaica Norman Manley that was made in the Jamaican House of Representatives in January 1962, reveals the following:
“Let us not make the mistake of describing as colonial, institutions which are part and parcel of the heritage of this country. If we have any confidence in our own individuality and our own personality we would absorb these things and incorporate them into our being and turn them to our own use as part of the heritage we are not ashamed of.” (Norman Manley, Proceedings of the Jamaican House of Representatives 1961-62, January 24, 1962, p 766).
Norman Manley was not speaking about importing the British Constitution and converting it into local usage in the way that Williams had advocated, but rather he was urging that the existing institutions of the colonial era, that evolved as part of Jamaica’s development, should not be regarded as colonial, but rather as indigenous.
These institutions were installed as part of the colonial evolution. Yet, Norman Manley was describing it as a “mistake” to regard these institutions as being “colonial”. He preferred to bless them as being part of the “heritage” of Jamaica.
The primary reason for my juxtaposition of these two views as expressed by two leaders who were part of the independence movement more than 50 years ago will help us to understand the difficulties being experienced today with the prospect of constitution reform.
Are we reforming constitutions that have been imported into our societies or constitutions that are indigenous to our societies? For Williams, the argument was that if it was good enough for Great Britain, it would be good enough for T&T. For Manley, it was not colonial, but rather part of the heritage of Jamaica. Somehow, they both seemed to be talking about the same thing.
The only difference was that one argument advocated that what we have belongs to us by evolution and the other argument is that what we have belongs to us by importation.
The fundamental underlying question to be asked in both cases is whether there was widespread involvement of the population in the formulation of these constitutions or whether this was an arrangement that suited local political elites as opposed to the local populations themselves.
In that context, the argument to be settled by constitutional reformers would be to find an answer to why would we want to change something that could be regarded as ours by evolution or that has been adapted to our needs after importation?
Is it that we are wedded to the Westminster-Whitehall model of governance and any alteration may only get as far as the creation of a hybrid by importing features that are alien to our heritage of the British Constitution suitably modified or our evolved colonial institutions that are supposedly part of our heritage?
In 1976, our constitution framers chose to endorse the evolution argument by continuing along a path that had a history that is linked directly to its British traditions whose change will always be resisted.
The recent decision by ArcelorMittal to close its operations at Point Lisas represented a major blow to the vision that was so proudly pursued by Dr Eric Williams in the 1970s.
In delivering the 19th Eric Williams Memorial Lecture organised by the Central Bank on June 10, 2005, Prof Kenneth Julien quoted several excerpts from speeches by Dr Eric Williams related to the development of the national energy sector and the policy of heavy industrialisation that the Williams government pursued.
According to Julien, on January 17, 1976, under what he called in his lecture Defining Moment No. 7, Decision to Invest in Iscott, Williams said the following:
“Point Lisas is the symbol of this fundamental reorientation of the international economy. Sugar cane gives way to wire rods. Sugar has separated us as wire rods will weld us back together…There have been attempts to persuade us that the simplest and easiest thing to do would be to sit back, export our oil, export our gas, do nothing else and just receive the revenues derived from such exports and as it were, lead a life of luxury—at least for some limited period. This, the Government has completely rejected, for it amounts to putting the entire nation on the dole. Instead, we have taken what may be the more difficult road and that is, accepting the challenge of entering the world of steel, aluminium, methanol, fertiliser, petrochemicals. We have accepted the challenge of using our hydrocarbon resources in a very definite industrialisation process.”
Up until a few weeks ago, that vision had remained intact even though there was a mid-course correction after the intervention of the IMF in the 1988-90 period. Iscott would soon give way to Ispat and then to ArcelorMittal.
In his lecture, Julien went further to quote from the national budget presented by Dr Williams on December 5, 1980, as follows:
“The decision of the Government to move boldly into the field of industry based on the use of our energy resources has been the subject of discussion, debate, criticisms, and at times outright hostility generated both internally and externally. Those decisions have been translated into one producing unit, Iscott, and by the middle of 1981, another addition to the productive sector of our economy, Fertrin.
“In parallel with these developments and in support of them have been the establishment of a modern industrial estate, 1,500 acres in extent at Point Lisas, a modern port and harbour facility to accommodate vessels of 50,000 tonnes dead weight, and a power plant to meet the demand of proposed industries at Point Lisas and the country as a whole.”
That vision was challenged when the State got out of the iron and steel business. On November 16, 1988, the Government of T&T applied to the IMF for a 14-month stand-by arrangement in the amount of SDR 99 million and a compensatory and contingency financing facility up to a maximum amount of SDR 42.5 million.
On March 14, 1990, the Government went to the IMF again and applied for a 12-month stand-by arrangement worth SDR 85 million and access to a contingency financing arrangement for up to SDR 42.5 million.
According to paragraph 15 of the 1988 letter, the Government told the IMF the following:
“In 1987, Iscott (the state-owned steel company) entered into a management contract with a foreign firm. As a result of some restructuring of the company and new management arrangements, the company’s operating losses were reduced from an average of about TT$210 million a year in 1984-86 to an estimated TT$80 million in 1988.”
According to David Renwick writing in the Caribbean Beat magazine, Issue 14 Summer 1995:
“Iscott was leased to the Ispat steelmaking group from India in 1989, after the government decided it could no longer remain a public sector responsibility. Ispat has now bought the company outright for US$70.5 million. Energy from natural gas is vital to the plant’s successful operation—it uses about 35 million cubic feet per day.”
Today, ArcelorMittal has ground to a halt at Point Lisas and the Williams dream has been severely compromised. There are calls for ArcelorMittal to be nationalised by the Government thereby returning the State to the iron and steel business once more.
The Rowley administration is not intending to do that and so a decision must now be made with regard to the giant iron and steel plant and facilities at Point Lisas. Once the proud legacy of the decision by the Williams administration in the late 1970s as part of a wider industrialisation programme for the development of the country, its twists and turns through its role in putting the country into the hands of the IMF in the late 1980s has now seen its privatisation stage come to a sudden flop.
Last Wednesday’s announcement that Tata Steel is to close its steel business in the United Kingdom is just another saga in the global steel downturn. Did anyone advising the Government see this coming or are they starting from scratch?
“It is possible with six candidates that the winning candidate might get 30 per cent of the vote. And we are saying that a leader with 30 per cent of the electorate is not going to have the credibility to run the Tobago Council and, by extension, to go into an election with any degree of confidence that he or she has support…You must have a leader in whom the majority of people have confidence.” (Orville London, Express, Monday, April 4, p 22).
The significance of this comment is that it represents a complete turnaround by the PNM on the issue of the run-off system of election. The party had vehemently opposed it in August 2014 when the Constitution (Amendment) Bill was debated in the Parliament at that time.
In 2012, when the PNM had made significant changes to its party constitution it introduced the run-off system of election for the post of political leader. In 2014, it argued against its application to the election of individual Members of Parliament. In 2016, it has now embraced it, quite logically, for the leadership elections for the Tobago Council of the party.
This ought not to be taken lightly as it is clear that the impetus for the introduction of this measure for the Tobago Council came from the General Council of the PNM. According to Ria Taitt, Express senior political reporter, writing under the headline, PNM makes changes to its constitution in record time:
“The convention approved the one-man-one-vote for the election of the chairman and political leader of the Tobago Council. Tobago leader Orville London said the Tobago Council at first did not have the run-off provision as one of its recommendations. But, he said, the Tobago Council saw the wisdom of it eventually, after the General Council ‘made a respect with sensitivity’ for the council to reconsider.” (Express, Monday, April 4, p 22).
Perhaps the most significant aspect of this particular reform is the fact that it did not come from the Tobago Council, but rather came from the General Council of the party in Trinidad. The whole philosophy of the run-off system had been the subject of virulent objection by the PNM in August 2014, that led to one newspaper having a blaring headline that read RUN-OFF RAGE.
The relative ease with which these amendments to the party’s constitution were accepted is best captured by Ria Taitt as follows:
“Things went smoother and faster than expected, as delegates unanimously accepted the two amendments with hardly any debate.” (Express, Monday, April 4, p 22)
This was also significant as the party had a clear position in opposition to the run-off system both inside and outside of Parliament. The essence of the argument against the run-off system was best captured by then Opposition MP Colm Imbert when he said:
“And the countries that have it like France, they have a presidential system, Mr Speaker, they follow the Napoleonic Code. Their laws are not based on English common law. It is a completely different system. (Interruption) Yes, the entire court system, the judicial system, the administration of justice, they are based on that Napoleonic Code, completely different to our English common law system.” (Hansard, House of Representatives, August 11, 2014, p 336)
In many respects, Imbert was arguing that the introduction of such a measure as the run-off system of election was alien to our political culture by virtue of the fact that we would be importing an alien system that belonged to the Napoleonic Code and not English common law.
Quite frankly, it is refreshing that the PNM has had a change of heart on the run-off system and that their General Council was able to convince their Tobago Council to accept the amendment. What was even more attractive is that there was not a single dissenting voice in embracing the run-off system just 18 months after such fierce resistance to the proposal.
This could mean that there is hope for a more dispassionate consideration of the reform at a future date so that all of the very logical arguments advanced by Orville London in his interview with Ria Taitt last Sunday could be advanced on the national scale. His very reasoned arguments that the run-off system has the potential to enhance the “credibility” of the person elected because you can get a “leader in whom the majority of people have confidence” is precisely some of what was being advanced in August 2014.
The PNM has also shown that they are prepared to change the political culture of the party by embracing a system that has come out of what was called “the Napoleonic Code” which goes against the grain of “English common law”.
The hard reality is that Orville London’s cogent argument for having the run-off system for Tobago is precisely the justification that was used to advance it in the first place in 2014. The significance of that ought not to be underestimated as the idea did not emanate with the Tobago Council.
The run-off system was always a good reform idea.
The admonition to taxi drivers by Finance Minister Colm Imbert that they would be “unpatriotic” if they were to raise their fares was a very harsh statement to make to anyone who runs a business. The President of the Route 2 (Red Band) Maxi Taxi Association, Linus Phillip, responded as follows to the minister’s fuel price increase after his association met on the issue:
“I think commuters can rest assured at this time that there is no plan to increase the fares on Route 2. However, the association will closely monitor where the business sector is going to go with the increase but if they start increasing costs on us we will have no other choice.” (Guardian, April 13, 2016, p A7).
In the fuel sector, the real patriots must be the petroleum dealers themselves who operate gas stations across the country. The reality is that these dealers have seen their profit margins evaporate. When super gas was at $2.70 per litre up to last October, their profit margin was 17 cents on every litre sold. When the minister raised the price to $3.11 per litre, their profit margin remained at 17 cents on every litre sold. Two Fridays ago, he raised the price to $3.58 per litre and the profit margin for the dealers remained at 17 cents per litre.
That is a very large decline in their actual profit margin (from 17 cents out of $2.70 to 17 cents out of $3.58) in a business that does not have the luxury of adjusting profit margins to suit price increases owing to the existence of state control of the pricing of fuel. Added to that, the dealers also have a 0.9 per cent business levy to pay which puts their slim profit margin under further pressure. Additional pressure on the same profit margin will also come whenever a customer uses a credit or debit card as there are handling charges involved.
It is quite possible that many gas stations may have to reduce their opening and closing hours in order to eliminate operating different shifts because this will become more of a labour issue owing to the fact that jobs are involved alongside very slim profit margins.
The reality is that the country is not going to come anywhere near to the free-market style of operation of gas stations in other countries where the price can fluctuate between one day and the next. That would require a lurch in the direction of removing the duopoly of gas stations that is currently confined to NP and Unipet to allow other private sector providers into the marketplace. Also, it would be necessary to have another provider competing with Petrotrin as an alternative source supplier of fuel to the marketplace for real price competition to take place.
We are nowhere near that kind of free-market thinking, yet the whole fuel subsidy debate is being couched in a manner that would suggest that once we remove the subsidy then the forces of the marketplace will take over. That is not true. How it should work is that when the price of oil goes down, so too will the cost of fuel at the pump and when the price of oil goes up, so too will the cost of fuel at the pump. What we have is the minister fixing the price of gas at the pump, full stop.
The minister stated that the paradigm has changed and these are different times. Unfortunately, there has been no philosophical position articulated that can guide the nation. Are we using a free-market approach, a state-control approach, a mixed-market approach or a make-it-up-as you go approach?
There are divisions inside of the Economic Advisory Board led by Dr Terrence Farrell which are apparent on the outside when one listens to the public commentaries of trade unionist/politician David Abdulah who is also a member of the same board. Abdulah’s latest comment on the measures announced by Finance Minister Colm Imbert was:
“There has been no significant—if any at all—consultation or engagement of citizens, or of stakeholders with respect to the state of the economy and proposals going forward…We do not count individual conversations a minister or prime minister may have had with a businessman or representatives of a firm as representing proper consultation or stakeholder engagement.” (Guardian, April 11, 2016, p A7).
As if that evidence of division was not enough, the philosophical contrast between himself and Imbert’s policy of divestment was best observed in the same article:
“Everything is wrong with the sale of Clico and with the sale of Republic Bank and therefore we are opposing it and the MSJ will campaign strenuously against that sale.”
Imbert announced that the shares in these companies will be vested in the State before they are put on the open market for sale. In the interest of transparency and good corporate governance, all of the directors of these companies should be required to declare their assets and liabilities to the Integrity Commission before the sale because these entities would have become state enterprises.
Two Saturdays ago, Prime Minister Keith Rowley held a special event at Sogren Trace Recreational Ground to announce a major development initiative for Laventille entitled “Laventille 123: A Different Me.” According to Joel Julien writing in the Guardian on April 18, 2016:
“Hundreds of specially invited guests stayed away from an event in Laventille on Saturday, in which Prime Minister Dr Keith Rowley was the feature speaker, because they were afraid of rising crime in that area.”
However, the major policy announcement that he made that night was a return to earlier initiatives that were not carried through when he was a minister in the Manning administration.
Prime Minister Rowley now has a second chance to do something about the development of Laventille once more. In June 2003, according to then political reporter at Newsday, Ria Taitt:
“Dr Keith Rowley was brutally frank in Laventille yesterday as he delivered the feature address at the sod-turning ceremony for the Beverly Hills project. In a tough talking speech, the planning and development minister fired verbal shot after shot at the people of Laventille, warning them that the crime and killing had to stop now. He said Government was fed up of gun crimes in Trinidad and Tobago, particularly in Laventille. Rowley warned that Government was moving to target the handlers of illegal guns. ‘And we are going to be rough and tough,’ he stated, to loud applause from his Laventille audience.” (Newsday, June 28, 2003).
On the day of the sixtieth anniversary of the birth of the PNM, former Port-of-Spain mayor Raymond Tim Kee went into the area and proclaimed that “life in Laventille is hell.”
Tim Kee, who is also the treasurer of the PNM, had made a serious indictment on the quality of life in the area after 60 unbroken years of PNM representation from Donald Granado in 1956 (when there was only one constituency in Laventille) to Fitzgerald Hinds (Laventille West) and Adrian Leonce (Laventille East/Morvant) in 2015.
On February 8, 2010, former prime minister Patrick Manning held a walkabout in the Laventille West constituency. According to Guardian senior political reporter Gail Alexander who covered that walkabout:
“Later, Manning told constituents at a meeting: ‘As I walked people talked to me. That’s the major reason we are here…we want to listen.’ He said nearly everyone had told him that area MP Nileung Hypolite was ‘trying,’ but didn’t have the resources to get things done. Manning said the view was ‘very refreshing.’
Stating that he, as political leader, had heard the concerns, Manning revealed at the meeting he would ask the Ministers of Sports, Works, Utilities, Culture, Social Development and Local Government and the East Port-of-Spain Development Company to meet yesterday with the MPs for Laventille East and West. Manning added: ‘After they talk, I want to see a programme for the continued development of Laventille and I give the assurance that the money required will be made available.’ Manning received a standing ovation at the meeting for that announcement.” (Guardian, February 11, 2010).
Three months later, the PNM would return to the opposition benches in the Parliament.
Prof Selwyn Cudjoe, writing in a post on the trinicenter.com website on February 21, 2008, said: “Fifty years ago the children of Laventille placed their faith in the PNM. In its greatest hour of distress, when NAR swamped the country, the people of Laventille kept the faith and supported the PNM. Today, the PNM has abandoned Laventille and betrayed the trust these children placed in them. Were he alive today, Jesus would say the PNM abandoned the people of Laventille in the ‘heat and burthen of the day.’
While the government has set up the East Port-of-Spain Development Company to develop the area no one knows what their plans are. Moreover, the people of the area are not involved in their own development. There are seen as mere objects of this grandiose project rather than subjects who are involved in constructing their lives. While lots of money have been spent (perhaps wasted is a better word) in the area no one has outlined what the issues are and how best to solve them. No transformational work is taking place and no one knows of any specific plans to stem this national blight.”
The reality is that there is no other political party for which the national community has an expectation to address the plight of Laventille than the PNM. The People’s Partnership, under Kamla Persad-Bissessar, made its own attempts through the East Port-of-Spain Development Company and other policy initiatives. The same can be said for the UNC under Basdeo Panday and the NAR under ANR Robinson.
However, the one political party that must be expected to make Laventille their top priority is the PNM, because the people of the area have trusted no other party to represent them for the last 60 years.
They have suffered many broken promises from the PNM over the years.
One can only hope that their time for meaningful development has finally come at last.
Recent statements being made by David Abdulah, former general secretary of the OWTU and current political leader of the MSJ, seem to suggest that the labour movement never expected to be treated in the way they are currently being treated by the Government. Abdulah’s most recent commentary included the following last Sunday:
"At no point in time in that presentation in the House and subsequently in the Senate did the Minister of Finance indicate that it was on his mind to get assistance from the IMF and World Bank. As far as he was concerned, he was on top of everything, the Government was in charge, in control, they knew what the problems are, they knew what solutions they would pursue and within 14 days he announces that he had made a request to the IMF and World Bank for advice and those persons are actually here in Trinidad and Tobago…This is an amazing indication of the abject failure of the Minister of Finance and speaks to the lack of proper transparency and accountability." (Newsday, April 25, 2016, p 9).
This was a stinging assault on the Minister of Finance and, by extension, the Government from a member of its own Economic Advisory Board. However, it was not the only adverse comment made about the Government by people in the vanguard of the labour movement. Rhondor Dowlat reporting in the Guardian had this to say about Ancel Roget:
"The Joint Trade Union Movement (JTUM) is asking for tomorrow’s mid-term review of the budget to be deferred until it is briefed on its contents and given a chance to contribute to the process.
Speaking after a two-hour meeting with Labour Minister Jennifer Baptiste-Primus yesterday evening, OWTU president general Ancel Roget said they were not privy to measures in the mid-term budget and therefore it could not get their support. ‘If there are measures that would bring hardship to the workers who are already reeling under pressure and it were not first discussed with us, although we have a Memorandum of Understanding that dictates to us that we would have meaningful, deep and wide consultation, and we did not have that, well certainly our position is clear…We should have meaningful consultation before major decisions that will impact workers in this country are taken. We cannot support any measure that will be adverse to workers,’ he added." (Guardian, April 7, 2016).
These comments relate to the signing of a Memorandum of Understanding between the Joint Trade Union Movement, led by Ancel Roget who is also the president-general of the OWTU, and the PNM led by Dr Keith Rowley on August 27, 2015. The provision of article four of that MOU stated the following:
"4. Recognizing that workers involvement within the country’s system of governance is central to the economic planning and therefore the cycle of confrontation can be brought to an end through genuine consultation." (MOU between the PNM and the JTUM Regarding Trade Union Involvement in Governance, signed August 27, 2015, by Dr Keith Rowley and Mr Ancel Roget).
This particular clause in the MOU is apparently the sticking point between labour and the Government as it is apparent that there was no consultation between the parties before Minister Imbert’s mid-year review on April 8 instant.
One is beginning to get the feeling that labour might have been outplayed politically given their support for the PNM leading up to, and coming out of, the last general election.
Their ideological position would not sanction the inclusion of IMF/World Bank advisers on the way forward for the economy. However, Minister Imbert made it clear in the Parliament last Monday that the approach of the Government is to listen to a wide range of views before settling on any one course of action.
Article ten of the MOU read as follows:
"The establishment of a National Tripartite Mechanism reflecting the Principle of Equality of Treatment, with dedicated resources and clear Terms of Reference."
It would appear that the Government honoured its undertaking in the MOU to establish the National Tripartite Advisory Council on March 15 last. Despite this, there still seems to be some angst in the ranks of the labour movement about the handling of the economy by the Government based on the public comments of Roget and Abdulah.
The examination of their public comments would seem to identify two sources of discomfort, namely (i) the lack of consultation, and (ii) the presence of the IMF and World Bank advisers.
The Economic Advisory Board was appointed on November 20 last year, and consists of Dr Terrence Farrell as chairman as well as Trevor Lynch, Alison Lewis, Dr Rolph Balgobin, Dr Selvon Hazel, Dr Ronald Ramkissoon, David Abdulah, Prof Karl Theodore and Dr Marlene Attzs. Last week, Dr Keith Nurse and Prof Godfrey Mungal were added to the board.
The tone of the comments from Roget and Abdulah are beginning to sound like they now feel that they might have been misled last August when the MOU was signed. Their next steps will reveal their true positions on the way forward.
Within the last two weeks, there have been situations within the Government that revealed a clash between individual ministers exercising their powers under the doctrine of individual ministerial responsibility contrary to the opinions of the Prime Minister.
The two ministers involved were Minister of Health Terrence Deyalsingh and Attorney General and Minister of Legal Affairs Faris Al-Rawi.
In the case of Minister Deyalsingh, he told the media the following at a press conference three Fridays ago:
“We are exactly where we were two weeks ago, two years ago. I have an oath of office and that implies every law of the land. I have made it crystal clear that that issue is already covered by the code of ethics of Trinidad and Tobago…If the conversation of Zika is only about abortion then we will be doing TT a disservice because the conversation was never about abortion, but about source reduction…I don’t deny that this is a convenient topic to sell news, but we are doing the country a disservice by only focussing on that when the focus should be squarely on source reduction…Let us keep our eyes on the prize. The prize is not to get bitten, clean your surroundings, pregnant women should wear long, light-coloured clothing. Let us work on this particular issue and not be sidetracked by this issue. I am very clear that my responsibility as Minister of Health is two-fold—source reduction and applying the laws of the land…Following your logic, would you go to all those parents who love their children and tell them that they should have aborted their children because it is a challenge for them whether poor, rich, middle class or indifferent?...I am ending this discussion of abortion. We are putting protocols in place to treat with babies who may be born with microcephaly. The same protocols that we use with our learnings with autism, cerebral palsy and everything else.” (Newsday, April 23, 2016).
Anna Ramdass reporting in the Express about Prime Minister Rowley’s response to his Health Minister wrote:
“Health Minister Terrence Deyalsingh is not the Government of Trinidad and Tobago and the discussion on abortion remains open, says Prime Minister Dr Keith Rowley. Rowley addressed the controversial issue at yesterday’s post-Cabinet news conference at the Diplomatic Centre, St Ann’s. Pointed out by a journalist that Deyalsingh last Friday at his news conference had said he was ending the conversation on abortion and no longer discussing it, the Prime Minister said the minister may have done this but the discussion is taking place in the country.” (Express, April 29, 2016).
Minister Deyalsingh’s response to his Prime Minister contradicting him in public was to say that he had been misquoted. However, it was absolutely clear that Minister Deyalsingh was exercising his individual ministerial responsibility to state clearly for the record that (i) he was upholding the law of the land that abortion was illegal, and (ii) he was ending the discussion on abortion. He chose not to challenge his Prime Minister in public.
The core principles of the doctrine of individual ministerial responsibility are (i) the advice rule under which every minister is entitled to departmental advice before making up their own mind on policy positions; (ii) the culpability rule under which the minister is responsible for policy error; and, (iii) the propriety rule under which ministers are expected to conduct themselves with a certain degree of public propriety.
Another situation involving individual ministerial responsibility arose last Monday at the pre-departure press conference held by Prime Minister Rowley before he left on his overseas travels. He was asked about a front page story in the Guardian under the headline AG Looks At Legal Ganja by senior political reporter Gail Alexander.
Reporter Rhondor Dowlat writing in the Guardian on the next day reported:
“Rowley said he would be surprised if Al-Rawi spoke to decriminalising marijuana despite the fact that it was not discussed in Cabinet. ‘I lead the Cabinet and I don’t know that any such examination is taking place. I’ve seen the headline, I haven’t read the story but I’m pretty sure the Attorney General will really want to explain that. We have been in office for seven months and so whatever conversation generated that headline, there is certainly some misunderstanding there,’ Rowley said.” (Guardian, May 3, 2016).
The response of Al-Rawi was very different to that of Deyalsingh as reported in the same Guardian story when he said:
“I am the Attorney General of T&T and it is quite simple, the questions posed to me by Gail Alexander were in the context of the work that’s going on in the prison system. Specifically, the questions were posed in the context of the maximum sentencing approach and the issue that the Archbishop has raised, which coincides with the issue that we put into the public domain of really looking to see how people who are remanded have been managed by the criminal justice system.”
He publicly stated that he does not report to the Prime Minister on everything that is going on in his ministry, which revealed some defiance.
According to Attorney General Faris Al-Rawi: “We say specifically that there is no right to privacy as some people alleged exists in this jurisdiction, but which our courts do not recognise specifically so. Our Constitution does in section 4(c) recognise the right to private and family life. Our courts are replete with judgments that say that the right to privacy is not per se a right. Our common law recognises a right which says that there is breach of confidence. Our equitable jurisdiction has, most recently, in certain cases recognised an equitable jurisdiction to the protection of certain privacy issues, but the debate is still ongoing with respect to a right of privacy per se.” (Hansard, Senate, May 3, 2016, p 20)
This statement has started a controversy about whether or not there is any right to privacy in this country.
As far as the Government is concerned, there is none. However, instead of seeking to remedy that debatable lacuna in the law, the Government drove a bulldozer through that space to amend the Strategic Services Agency Act without stopping to fix a signpost for privacy along the way.
Former chief justice Michael de la Bastide said the following in response to Al-Rawi:
“The Constitution does provide for a right to privacy, the question is how is that defined. What are its limits? How does it reconcile with the right to freedom of expression? Obviously there has to be some balance...Respect for private life looks very much like respect for privacy and that is hardly distinguishable from the right to privacy.” (Newsday, May 5, 2016).
Perhaps, these differences of opinion might more easily be understood if there was some background understanding to how the Constitution has section 4(c) which reads as follows:
“(c) the right of the individual to respect for his private and family life.”
The reality is that the independent countries of the Commonwealth Caribbean, with the exception of T&T, adopted the template of the European Convention on Human Rights 1950, while T&T deviated in its adoption of the Canadian Bill of Rights 1960 template for the chapter on human rights in its Independence Constitution.
The Draft Independence Constitution published in the Guardian on February 20, 1962, contained the following provisions relating to privacy at section 11(c):
“(c) respect for the privacy of his home and other property….”
This draft wording would have been weaker than what obtains now had it been retained.
The change emerged out of proposals advanced by the Bar Association of T&T at the Meeting of Commentators on the Draft Constitution at Queen’s Hall over the period April 25-27, 1962. The President of the Bar Association at that time, Mr (later Sir) Hugh Wooding made a plea at the Queen’s Hall Conference for the adoption of the Canadian Bill of Rights, suitably amended, to replace the modified template of the European Convention on Human Rights that was included in the Draft Independence Constitution.
Mr Wooding said, inter alia:
“We have adapted things, amended them, added certain things, deleted certain things, and in the same way we can take the Canadian Bill of Rights and adapt them to suit us, and I do not see why we should be limited to choosing the Canadian Bill of Rights as it is or refusing to consider it altogether. I put forward, on behalf of the Bar Association, that it should be taken as a model, and it should be used as a means whereby we can help to shape our thinking in the matter, modifying it to the extent that may be necessary, and remembering also that this Canadian Bill of Rights is something which came into existence in 1960 and forms no part of the Constitution of Canada.”
The proposals advanced by Mr Wooding and the Bar Association were considered by the Cabinet, together with other proposals made at the meeting. The chairman of the Queen’s Hall Conference made the following statement at the commencement of the proceedings on Friday April 27, 1962:
“I am happy to be in a position to inform you, on the authority of the Cabinet, that your written comments and your suggestions made in this hall have received preliminary consideration. Further detailed consideration will of course be given to them but already certain decisions have been taken. These decisions are that at the Joint Select Committee to begin on Monday the Government representatives will propose :…..(c) the substitution for Chapter II of a Bill of Rights along the lines of the Canadian Bill of Rights with appropriate modifications including the introduction of safeguards. (Applause).”
This extract from the verbatim record of the Queen’s Hall Conference provides an understanding of how T&T switched from the modified template of the European Convention on Human Rights 1950 and adopted the Canadian Bill of Rights 1960 template for its bill of rights in 1962. That template was retained in 1976 when the country became a republic and it is from there that privacy can be debated.
The showdown last week between Attorney General Faris Al-Rawi and the Dean of the Faculty of Law at the UWI, St Augustine Campus, Prof Rose Marie Belle-Antoine over the issue of privacy rights in T&T has opened many eyes.
All of this has come about because of the controversy over the amendments to the Strategic Services Agency Act. There is one view that says that the expansion of the remit of the SSA links it overwhelmingly to the Interception of Communications Act (ICA) 2010 that a three-fifths majority ought to have been applied. The justification for that is based on the fact that the ICA required a three-fifths majority for it to be passed.
The other point of view is that the SSA Act on its own was not originally passed with a three-fifths majority and therefore no such majority was required to enact any amendments to it.
Inevitably, it appears that this matter is heading for the judicial system for an interpretation. In the meantime, there is a raging political battle about the existence of a right to privacy in this country.
On May 3, the Attorney General told the Senate:
“We say specifically that there is no right to privacy as some people alleged exists in this jurisdiction, but which our courts do not recognize specifically so. Our constitution does in section 4(c) recognize the right to private and family life. Our courts are replete with judgments that say that the right to privacy is not per se a right.” (Hansard, Senate, May 3, 2016, p 20).
However, at the UWI forum last week, he stated that “the right to privacy is a qualified one and is not absolute.” (Newsday, May 18 2016, p 5).
One senses that the Attorney General has shifted his position somewhat from the hard line about no right to privacy during the debate on the SSA Amendment Bill to a softer line about the difference between a qualified right and an absolute one.
In the intervening period he did come under fire from former chief justice Michael de la Bastide who challenged the original line of argument from the Attorney General when he argued that there is a right to privacy in this country.
The underlying political issue in this entire debate about privacy is why is the Government so adamant that its citizens should not enjoy a right to privacy? There has been so much debate and discussion in the law in other jurisdictions to advance the cause of privacy for people in a modern world, yet the Government of T&T, through its Attorney General, is fighting tooth and nail to ensure that there is no political concession on the question of privacy rights.
There must be a deeper political reason for adopting this position. Last week, the leader of the Opposition questioned the Attorney General about his statement in Parliament about how he became aware that the work of the SSA resulted in people standing before the courts in the Dana Seetahal murder case.
She challenged him to disclose to the public how he came into possession of that information. She raised the issue that the Attorney General might have access to information inside the SSA.
This is a serious matter, especially when so many undertakings were given during the debate on the SSA Amendment Bill about all of the firewalls that will exist to protect the personal data of individuals.
The entire episode surrounding the SSA Amendment Bill has been the subject of controversy. The manner of appointment of the director, the lobbying of some independent senators, the debate over whether the bill required a three-fifths majority or not, and, the fear of whether the data intercepted by the SSA would be used for political advantage by the incumbent Government without public disclosure, were some of the controversial issues.
The issue that may lie at the core of the legal challenge is the constitutionality of the bill once it gets presidential assent. That issue may be similar to what was litigated in the Maxi Taxi Act 1979 that was overturned in 1992.
The then attorney general, Keith Sobion, in piloting the replacement bill gave his core reasoning as follows :
“Before I look at the bill which is before this honourable Senate, I think it is important by way of background, that I refer to the original purpose for enacting the maxi-taxi legislation in 1979. I propose to take that course principally because this present bill is substantially the same as the Act of 1979. The difference which appears on the face of the bill is that we are seeking a specific constitutional majority in order to preserve this legislation from challenge, and that is as a consequence of the decision of Mr. Justice Wills.” (Hansard, Senate, May 28, 1992, p 153).
The reality was that the original Maxi-Taxi Act 1979 was not passed with a three-fifths majority. Essentially the same bill was re-enacted with the required majority. That may be where the SSA Amendment Bill could go.