Articles on this Page
- 02/10/18--20:39: _Questioning the Pre...
- 02/17/18--19:59: _Presidential transi...
- 02/24/18--19:04: _Who is accurate?
- 03/03/18--20:41: _The failure of fede...
- 03/10/18--21:08: _Carnival in Lent
- 03/17/18--22:03: _To leave or not to ...
- 03/24/18--22:03: _Internal election d...
- 03/31/18--23:01: _Tobago autonomy
- 04/07/18--21:46: _Diplomatic briefings
- 04/14/18--21:15: _Errors of judgment
- 04/21/18--21:10: _Preparing for the i...
- 04/28/18--22:02: _The persistence of ...
- 05/06/18--00:05: _Tobago self-government
- 05/12/18--20:41: _Remembering Dr Morg...
- 05/19/18--21:07: _Changing the guard ...
- 05/26/18--22:03: _Equality for Tobago...
- 06/02/18--21:55: _No Opposition
- 06/09/18--22:36: _BLP Government and ...
- 06/16/18--20:07: _A T&T federation
- 06/23/18--21:50: _Barbados and the IMF
- 02/10/18--20:39: Questioning the President
- 02/17/18--19:59: Presidential transition controversies
- 02/24/18--19:04: Who is accurate?
- 03/03/18--20:41: The failure of federation
- 03/10/18--21:08: Carnival in Lent
- 03/17/18--22:03: To leave or not to leave
- 03/24/18--22:03: Internal election dynamics
- 03/31/18--23:01: Tobago autonomy
- 04/07/18--21:46: Diplomatic briefings
- 04/14/18--21:15: Errors of judgment
- 04/21/18--21:10: Preparing for the inevitable
- 04/28/18--22:02: The persistence of the Westminster-Whitehall Model
- 05/06/18--00:05: Tobago self-government
- 05/12/18--20:41: Remembering Dr Morgan Job
- 05/19/18--21:07: Changing the guard at the CCJ
- 05/26/18--22:03: Equality for Tobago and Trinidad
- 06/02/18--21:55: No Opposition
- 06/09/18--22:36: BLP Government and BLP Opposition
- 06/16/18--20:07: A T&T federation
- 06/23/18--21:50: Barbados and the IMF
Two Fridays ago, the House of Representatives appointed a Special Select Committee on the “Nomination of a Commissioner of Police and Deputy Commissioner of Police”. According to the Leader of the House, Minister Camille Robinson-Regis, the Special Select Committee is being set up “for the purpose of obtaining additional and particular information to enable the House of Representatives to consider the notification submitted to it by His Excellency, the President, pursuant to section 123 of the Constitution, and…., in addition to the powers as outlined in Standing Order 111, that it be resolved that this committee be mandated to obtain information, documentation and or evidence relevant to and/or touching and concerning the method, process, criteria and considerations utilised by the Police Service Commission and/or the firm employed by the Police Service Commission in the selection of candidates for the position of Commissioner of Police and Deputy Commissioner of Police to enable the House of Representatives to consider the notification submitted to it by His Excellency the President pursuant to section 123 of the Constitution…” (Hansard, House of Representatives, February 2, 2018, p 24).
This is a remarkable turnaround for Dr Keith Rowley who is significantly deviating from his February 1999 philosophy of making Service Commissions subject to the scrutiny of Parliament. In debating the amendment to the Constitution brought by the then UNC administration to make Service Commissions subject to the scrutiny of Parliament, Dr Rowley was vehemently opposed to the idea as follows:
“They can go ahead and pass this and my advice to any person in Trinidad and Tobago who is a commissioner is, if this thing is passed and comes into law, if they want to defend Trinidad and Tobago, refuse to appear before any such parliamentary committee and let them take them to court. Because I want to see, when they pass it and decide to interfere in the commissions and the commissioners refuse to come, where are we? Can you imagine, Mr Speaker? They must refuse to come to the Parliament to take part in any travesty because this, if it is passed without a special majority, must be tested in the court.”
(Hansard, House of Representatives, February 24, 1999, p 568).
Mrs Kamla Persad-Bissessar was in that UNC administration and she supported the idea of making Service Commissions accountable to parliamentary select committees. Dr Rowley was an opposition MP opposed to that principle.
So when the issue was proposed two Thursdays ago by Mrs Persad-Bissessar that the Police Service Commission should subject itself to the scrutiny of Parliament to explain “the method, process, criteria and considerations utilised” by the commission in arriving at its selection of Deodat Dulalchan as Commissioner of Police, she was reviving the 1999 principle that she supported.
The fact that Dr Rowley made a complete turnaround from his 1999 philosophical position of advising commissioners of Service Commissions to “refuse to come to the Parliament” to subject themselves to any scrutiny is profound.
The arguments made in 1999 have now come home to roost and an independent Police Service Commission is now being summoned to appear (minus a chairman whose term of office has expired and another commissioner who has not yet been appointed) to answer questions about its process.
The only item that is before the House of Representatives is a notification from the President. There is nothing from the Police Service Commission that can stand questioning and scrutiny.
The reality of what is being questioned is the notification from the President. The Police Service Commission has tendered its advice and the House of Representatives wants to apply the Anisminic principle to the Office of the President by going behind it to find out what happened. Will the commissioners heed Dr Rowley’s 1999 advice and “refuse to come” or is it really the Office of the President that is being questioned?
One month from now, Trinidad and Tobago will have a new President. As the arrangements for the transition are being put in place, one can only hope that there will not be any controversies associated with it.
There is one potential item that could become controversial, which relates to the desire of the House of Representatives to investigate the circumstances surrounding the decision of the Police Service Commission to select Deodat Dulalchan as its choice for Commissioner of Police and Harold Phillip as its choice for Deputy Commissioner of Police.
With the Special Select Committee of the House of Representatives embarking on a task that will seek to go behind the notification made by President Anthony Carmona and interrogate those members of the Police Service Commission who remain from the initial group that made the decision, the potential for controversy exists.
The Government had the opportunity to dispense with the notification on February 2 instant, but chose instead to accept the advice of the Opposition and appoint a Special Select Committee. That committee has until March 31 to report to the House and the current acting Commissioner of Police, Stephen Williams, has been extended in office until April 1.
President Carmona is demitting office at midnight on March 17 and President-elect Paula-Mae Weekes will assume office later in the day on March 18 (one presumes that Senator Christine Kangaloo will be sworn in at midnight on March 17 to act as President until Madam Justice Weekes is administered her oath of office on the afternoon of March 18, unless President-elect Weekes is privately administered the oath at midnight and then takes another oath for public consumption later on March 18).
The potential for controversy in the matter involving the presidential notification relates to when the House of Representatives plans to take a vote on it. Will they dispense with it one way or the other before President Carmona demits office, or will they seek to let this carry over into the term of the new President?
It would be better if the matter is settled before March 18 and not left hanging after the President has left office. This will recall the controversy involving the appointment of the late Justice Cecil Kelsick to be a member of the Judicial and Legal Service Commission (JLSC) in March 1987, mere days before president Ellis Clarke demitted office.
On that occasion, president-elect Noor Hassanali had previously resigned as a member of the JLSC at the time of his nomination for the presidency. The controversy arose over who was going to fill that vacancy and when.
President Clarke insisted that he would not leave office with a vacancy pending in his name. Prime Minister ANR Robinson suggested that President Clarke should not trouble himself with filling the vacancy, as it could have been filled by the Acting President Michael Williams during the five days between Clarke’s departure for London and Hassanali’s inauguration. Hassanali was very clear that he did not want to fill his own vacancy.
Clarke appointed Kelsick on March 14, 1987 and left for London that night. Hassanali assumed office on March 19 1987 and Michael Williams never got the chance to make the appointment.
The response of Prime Minister Robinson was to appoint the Hyatali Constitution Commission. What is going to happen to President Carmona’s notification if it is not voted on by March 17? Will it still be valid or will someone attempt to argue that it has lapsed?
Will the Police Service Commission get to do another recommendation for the new President under a different chairman so that the process will not have to be redone, just another notification with another name? Could Carmona’s notification be recalled by an Acting President?
We are in uncharted waters over handling a presidential transition and a pending presidential notification.
According to CNN on its website on February 9, 2018, reporters Ryan Browne and Barbara Starr said:
“US troops participated in anti-terror raids Thursday in the Caribbean nation of Trinidad and Tobago helping to capture four “high value targets,” two US military officials told CNN. The officials said US military personnel from US Southern Command, which oversees US military operations in the region, advised and assisted local Trinidadian security forces in apprehending the four extremists who are believed to be part of a network engaged in plotting terror attacks. The US troops did not participate in any direct combat.”
Answering Prime Minister’s Questions in the House of Representatives on Friday, February 16, 2018, Dr Keith Rowley said:
“For the nth time, the interrogation and picking up of people in (TT) has been done 100 per cent by the state agencies of Trinidad and Tobago.”
Which one was it? The CNN report or the answer given by the Prime Minister in Parliament? If we accept the Prime Minister’s response, then was the CNN report inaccurate?
The Guardian reported on February 17 instant at page A2 as follows:
“Rowley said the operation was led ‘100 per cent’ by T&T security personnel. However, he noted other personnel from other countries supply support, information and equipment to the effort.”
It is clear that there are two narratives being advanced about the raids and the detention of people over the Carnival period. The CNN reporters were very specific when they said that US troops “participated in anti-terror raids” in this country on Carnival Thursday. That suggests more than just tactical support.
Dr Rowley has left no doubt that the operation was a “100 per cent” total local effort.
The CNN reporters also said that the US troops had also aided the capture of “four ‘high value targets’” and the source for this information was “two US military officials.”
Nowhere in any of the discussion by local officials was there any revelation that “four ‘high value targets’” had been captured. What has been revealed was that all the people who were detained were released and two were charged with offences unrelated to the purpose of the raids.
The same Guardian report went further to say:
“On why people detained during recent investigations were released if the threat was credible, Rowley added: ‘That’s a matter of and for law enforcement. However, to say that the fact they’ve been released or nothing happened is proof that nothing could have happened is pure folly.’”
This would have been a very strange way to treat “four high value targets” once they had been captured. Were these people local residents or were they overseas visitors who were hiding in this country? These are questions that arise from the CNN report. In matching that report against the local revelations from the Prime Minister, one has to try and figure out who these people could have been.
However, the responses from the Prime Minister on the subject of the Carnival raids and detentions do not seem to reinforce the report by Ryan Browne and Barbara Starr at CNN.
Did US troops play a more active role than the Prime Minister would have us believe or were Browne and Starr guilty of spicing up their report to get headlines? There has been little or no attention paid to this apparent discrepancy between CNN’s reporting and the local reporting on the same events.
As if that were not enough, Newsday reported an answer given by the Prime Minister confirming the existence of an ISIS cell in this country as a misquote. The next day the Attorney General, who gave Newsday the story line, changed his own story to say that he was misunderstood.
Can somebody get the stories straight at home and abroad?
Sixty years ago this month, the campaign for the election of the first Parliament of the West Indian Federation on March 25, 1958, was underway. Sir Grantley Adams and his party would emerge victorious and a Federal Government would be formed. Four years after that, by April 1962, the Federation would be terminated in the aftermath of the Jamaican referendum of September 19, 1961, on the issue of Jamaica’s self-determination to secede from the Federation.
The Caricom leaders of today still grapple with the failure of the Federation and failure to implement the Caribbean Single Market remains a major challenge.
Declassified correspondence sent to the Colonial Office by Arthur Lewis (the Federal negotiator) and a speech made by Eric Williams in 1965 provides insights into how the Federation eventually met its demise.
According to Williams:
“Where representation in the federal parliament was concerned, however, Arthur Lewis arguing on what he claimed was ‘the general consensus’ in the other territories that the formula arrived at in the Inter-Governmental Conferences should be maintained, committed himself to a Trinidad and Tobago representacomtion which was not based on the fact that Trinidad and Tobago accounted for approximately 60 per cent of the population of the nine territory federation. To put it bluntly, Trinidad and Tobago was to pay three quarters of the budget but to have less than half of the seats in the federal parliament. This was wholly unacceptable to the PNM Cabinet.” (Paul Sutton, Forged From the Love of Liberty, 1981, pp.297-298).
Arthur Lewis had been to see Eric Williams four times between the Jamaican referendum and the T&T general election of December 4, 1961, to discuss a future Federation of nine countries. His thoughts are captured in private correspondence (now declassified) that he sent to the Colonial Office about his meetings as follows:
1. “September 22: I went to see him to persuade him to declare in favour of a strong Eastern Caribbean Federation. He was full of venom and insisted that he wanted the whole Federation to ‘mash up’. Only then would he consider starting a new federation, on Trinidad’s terms...”
2. “October 6: I reported that Mr Bird of Antigua was willing to accept the main features of a strong federation, provided no attempt was made at a unitary state. He was pleased with my report that a reasonable settlement could be made. He informed me that Ellis Clarke had advised that the Federation would end in March, and I tried vainly to argue him out of this...”
3. “November 3: We had lunch in his house for two hours. He had previously read a first draft of my report, addressed to him. There was a marked shift in his thinking, towards a unitary state, but his mind still seemed to be open on this subject. The alarming shift was in his attitude to a conference. He could not have his party convention till mid-January. This would have to be followed by educating the public. Clearly he was thinking in terms of months. By now he had also publicly committed himself to the ending of the Federation in March. I gained the impression that destroying the Federation had become an obsession…”
4. “November 8: He had not yet received comments on my report. His mind was still toying with a unitary state, and seemed a little less open. But he argued in a friendly way…He would attend a conference if it was clear that the Federal Government would not keep interfering in the discussion...”
These exchanges show that the arguments between Williams and Lewis were pivotal and their failure to find consensus back then left the regional integration movement sadly handicapped. Caricom leaders of today are still contesting some of those battles that Williams and Lewis fought in 1961. Hopefully consensus will come in short order.
With the Carnival season having officially ended at midnight on Carnival Tuesday, it appears that there are lingering elements of a Carnivalesque nature that have overtaken the public square now that we are in the Lenten season.
One main element of this is the discussion emanating out of the Special Select Committee of the House of Representatives that is investigating the process by which a nomination was made by the Police Service Commission to the President for a Commissioner and Deputy Commissioner of Police.
The second element has to do with the ongoing soap opera inside of the Judiciary of this country that continues to draw gasps from time to time as it plays itself out. The latest controversy about the assignment of judicial sabbatical leave benefits has caused a major uproar among judges as the Chief Justice prepares to proceed on sabbatical leave from today.
With assistance from the Twitter account of CNC3 Morning Brew host Hema Ramkissoon, the actual letter from the Chief Justice to President Anthony Carmona dated February 26, 2018, was revealed and the public got to see what was actually stated by Chief Justice Archie on his sabbatical leave.
Within the last few days, the Chief Justice’s sabbatical leave has now taken the lead in the homestretch in what was originally shaping up to be a photo finish between the Police Commissioner notification and the Chief Justice’s performance of duty.
There is no doubt now that two main arms of law enforcement in this country are engaged in a homestretch duel to determine which one can undermine the confidence of the society in two of its law enforcement institutions (the Judiciary and the Police Service Commission).
The hedonistic nature of our society will ensure that all of this continues to be treated with the same level of blissful ignorance that has been associated with serious challenges in our society that go by without a whimper of public concern.
So far, concerns have been confined to political and legal elites who have a vested interest in these matters, but the rest of civil society seems largely unconcerned. However, other judges are now publicly calling for Archie to go. This is serious.
Most things pass off as just another joke on another day that can range from the sea bridge between our islands to the imaginary Great Wall of China that has prevented any prior prime ministerial intervention until now.
The Chief Justice’s sabbatical leave is an issue that has finally caught the attention of the Office of the Prime Minister. The timing comes just when there is a transition about to occur in the Office of the President. That could be an ominous sign for the Chief Justice, because this is the first time that the Prime Minister has decided to attempt to climb onto his mythical Great Wall of China to ask any questions of the Chief Justice or the President on any matter pertaining to the office of the Chief Justice.
The appearance of Minister Stuart Young taking a public stand to question the so-called benefit that was mentioned in the 98th Salaries Review Commission Report “in principle” was a powerful statement by the Prime Minister. Whenever Stuart Young speaks, it is the Prime Minister speaking.
Meanwhile, over at the Parliament on the Waterfront Complex, it was not smooth sailing for the former chairman and other members of the Police Service Commission at the hands of committee chairman Fitzgerald Hinds. The tempo got so hot during last week’s session that MP Ganga Singh had to ask chairman Hinds whether he was badgering the witness, former chairman Dr Maria Gomes.
Also taking some heat at these hearings was the accounting firm KPMG which had been paid $3.1 million to assist the Police Service Commission with their task of selecting nominees for CoP and DCP.
Carnival in Lent continues.
At the post-Cabinet media briefing last Thursday, Prime Minister Dr Keith Rowley rejected the position adopted by President Carmona that the Chief Justice is entitled to take sabbatical leave. He indicated that he had taken the advice of senior counsel before arriving at that determination.
Curiously, the Attorney General had also taken advice from a different senior counsel and that advice suggested that the Chief Justice was entitled to sabbatical leave.
Faced with conflicting advice inside the Government, the Prime Minister has instructed the Attorney General to go to court to seek an interpretation of what the law is in this case.
There is no doubt that President Carmona has found himself in a last-minute constitutional controversy of major proportions as he prepares to demit office at midnight tonight. His presidency has had situations before where he crossed swords with this Prime Minister. This final salvo is clearly one where the Prime Minister is saying openly that he rejects the President’s view about judicial entitlement to sabbatical leave.
Why has the Chief Justice been so insistent that he must travel ahead of the inauguration ceremony for the new President? Why was the current President so will ing to grant him sabbatical leave to travel out of the country for six months from March 11 when it has been known for months that a new President is to be sworn into office on March 19?
Surely some consideration ought to have been given to that. People have been raising questions about whether or not there is some other reason why the Chief Justice would not want to be present to administer the oath of office to Paula Mae Weekes tomorrow.
According to the Prime Minister, if the Chief Justice had travelled out of the country on sabbatical leave there would have been “consequences”. That is about as ominous as it could get for the invocation of section 137 of the Constitution which would see the commencement of impeachment proceedings against the Chief Justice.
This is where our country has reached. A President taking it upon himself to grant sabbatical leave to a Chief Justice on authority that is questioned by the Prime Minister, with the Chief Justice wanting to miss the inauguration of a new President on March 19 by publicly stating that he will be travelling out of the country on March 11. What is this?
When average citizens look on at political and judicial elites operating in this way, they lose respect for high offices of State. President Carmona has several times before talked about “donkey cart politics” in this country. The last days of his tenure have not exactly been stellar and he will be remembered for this controversy as he leaves office at midnight.
If section 137 is invoked against this Chief Justice, it would be the second time in 12 years that these provisions have been invoked against a sitting Chief Justice. The last time, there was no case for Chief Justice Sharma to answer at the end of the process. We wait to see what will happen going forward in this instance seeing that the Prime Minister actually uttered the words “section 137” from his mouth, but not in the context of invoking it.
Perhaps, what was most significant was that Prime Minister Rowley was asked by reporters to indicate why he sought legal advice on his own, separate and apart from the Attorney General. His answer was quite simple. The powers of the Prime Minister under section 137 of the Constitution apply to the Prime Minister alone and no one else.
As it stands now, the Chief Justice finds himself in the horns of a dilemma—to leave or not to leave. That applies beyond the boundaries of the controversy about sabbatical or accumulated vacation leave and constitutes his third option.
“Permit me to get personal on this, I heard my colleague talk about our political opponents. It is not only your political opponents that can do bad things, your political friends can do bad things too. This project wasn’t stopped by our political opponents, it fell prey to our own politics in the PNM.”
With those words, it would appear that Prime Minister Dr Keith Rowley launched his re-election campaign for the post of political leader of the PNM. If there is any slate that is running against him, then he has laid the groundwork for battle.
It is difficult to see why he would specifically blame the PNM itself in such a frontal manner when this could so easily be passed off as People’s Partnership victimization or incompetence or any of the other allegations that can so easily be used to defend against policy delays or lapses in the transition from one government to another. But to turn his fire on his own party was a most unusual development.
Subsequent to that, Mrs Hazel Manning, widow of the late prime minister Patrick Manning, as well as former PNM housing minister Emily Gaynor Dick-eduFord both responded to Rowley with denials of their own with Dick-Ford going even further to threaten the possibility of legal action.
The PNM Women’s League was quick on the draw to defend their political leader. This has laid the groundwork for whatever action is likely to take place with the filing of nomination papers for the PNM internal elections which seem set for June.
Concurrent with all of this is the reality that there may be two local government by-elections being held while the internal campaign for the PNM elections is under way.
This would appear to be a strategy to mobilise the party. Additionally, one does not know what the position will be with the La Horquetta/Talparo seat given the very difficult health situation being faced by MP Maxie Cuffie. This is a very challenging situation for his family given the uncertainty as well as for all parliamentarians because what Maxie is suffering could happen to anyone of them at anytime.
Based on announcements made by PNM Chairman Franklyn Khan at the post-General Council press briefing two Saturdays ago, nominations for the two local government districts were to be closed on March 19 and screening will take place on March 28 with the Prime Minister expected to announce the date for those elections shortly thereafter.
That is going to place those elections smack in the middle of the PNM internal elections seeing that there has to be a five-week campaign for the by-elections. Will La Horquetta/Talparo be included? That will be for the Prime Minister to decide.
Internal elections have become a feature of the local politics in the last two decades. What was pioneered by Basdeo Panday and the UNC and adopted by Winston Dookeran and the COP was adopted by the PNM in 2014. This has changed the political culture of political parties in this country.
The COP numbers have dropped significantly from what they once were, while the UNC and the PNM are the only two parties that have very large membership lists that can turn one of these internal elections into a mini general election.
Now it is the turn of the PNM to hold their internal elections. In the UNC, Kamla Persad-Bissessar was able to harmonise the elections for the position of political leader with that of the National Executive on two occasions—2015 and 2017.
The PNM has stuck to its four-year time cycle from 2014 to now. Some of the comments that are made by candidates for internal elections against their own colleagues can border on placing party unity at risk.
Dr Rowley has fired his first shot. Responses have been made. The internal election is now here.
A Bill “to amend the Constitution of the Republic of Trinidad and Tobago to accord self-government to Tobago, to repeal the Tobago House of Assembly Act, Chap. 25:03 and for related matters” was laid for First Reading in the House of Representatives on March 9 instant and has been referred to a Joint Select Committee.
The bill requires a three-fourths majority in the House of Representatives and a two-thirds majority in the Senate to be enacted because it seeks to amend some of the most deeply entrenched constitutional provisions.
Today’s column will not attempt to do a complete review of the bill as it is such a far-reaching piece of legislation that it requires several articles to properly review its contents.
In terms of general commentary, it is apparent that the bill seeks to reproduce in Tobago the Service Commission concept from T&T’s Constitution in respect of appointments, promotions, transfers, and discipline of public officers employed by the Tobago House of Assembly.
There is no originality here as this is a modification to reflect the same Service Commission philosophy that already exists for T&T that will now be applied to Tobago alone.
As regards the legislature, the bill seeks to introduce a bicameral legislature for Tobago with the House of Assembly now being joined by a People’s House.
The arrangements for the House of Assembly appear to be relatively the same, except for an increase from 12 assemblymen to 15.
The introduction of the People’s House is where the legislature is made bicameral so that there are two chamb Tobago statutes that will have effect “in Tobago, Little Tobago, St Giles Island, Marble Island, Goat Island, Sisters Island and such area of the archipelagic waters of Trinidad and Tobago, including any islands, the seabed and the subsoil, that lies within eleven miles from the low watermark of Tobago.”
This jurisdictional boundary may become the subject of further discussion insofar as “the low watermark” is concerned in an era of climate change and rising sea levels.
Perhaps something more defined in terms of specific distance may be more appropriate.
The People’s House, nevertheless, is a very interesting proposal as it seeks to revive the old parish system that existed in Tobago in the colonial era alongside seeking to incorporate some of the thinking behind the composition of a part of the current Senate of T&T.
According to the bill, the People’s House will consist of:
“(a) one member elected from each of the seven parishes in Tobago; and
(b) one member elected to represent each of the six sectors specified in the Fifth Schedule in such manner as may be prescribed by Parliament.”
According to the Fifth Schedule, these six sectors to be represented are (i) The Commercial and Business sector, (ii) The Tourism sector, (iii) The Agricultural Sector, (iv) The Environmental sector, (v) The Services sector, (vi) The Legal Sector.
They are supposed to “be established and constituted by legally registered organisations” in these areas.
This will become one of the more controversial provisions in the bill as the issue of who is being excluded will arise. Based on the current difficulties being faced by Tobago on its seabridge, the exclusion of a shipping sector may come readily to mind.
The proposed People’s House has an elected element in it so that it is not a purely a nominated body.
Yet it is treated as having to defer to the House of Assembly in the same way that the Senate defers to the House of Representatives by not having a veto power, but only a delaying power over legislation.
The People’s House is not purely nominated because it has elected members chosen much like senators in the US Senate to represent clearly defined geographical regions.
It will have to be treated differently.
As the foreign policy conundrum involving this country’s vote at the OAS on the request by Dominica to seek a waiver of its annual fees to the organisation for the years 2018 and 2019 continues to simmer, there appears to be some hope that a resolution of the matter will come.
The Prime Minister has decided to place an interpretation of the facts into the hands of former ambassador Christopher Thomas who will try to make sense of what appears to be a very complex situation based on the report the Prime Minister has read.
That means that both Foreign and CARICOM Affairs Minister Dennis Moses and T&T Ambassador to the OAS, Anthony Phillips-Spencer, have been given a temporary reprieve pending the determination to be made by Thomas for the consideration of the Prime Minister.
The issue of the constitutional doctrine of individual ministerial responsibility must play a part in any analysis of this situation.
This doctrine is supported by three main rules, namely (i) the advice rule, (ii) the culpability rule, and, (iii) the propriety rule.
In breaking this down, it is critical to understand that ministers are entitled to departmental advice in the discharge of their duties before making any policy decisions.
Also, ministers are to be held culpable for policy error, and finally, ministers are required to maintain good standards of personal propriety.
The statement that was issued by the Ministry of Foreign and CARICOM Affairs clearly points to policy error on the face of the record.
An excerpt from that statement as reported in the Guardian on March 30 says:
“In an unqualified way, the Ministry of Foreign and Caricom Affairs regrets the misrepresentation of the position of T&T offered by a public official of T&T during a meeting of the OAS’ Permanent Council (held March 23) relative to a request from Dominica for a waiver of its financial contribution to that Organization for 2018 to 2019.
Currently, an investigation into the briefing arrangements of the public official and the circumstances involved in the discussion at the OAS is underway.”
For the ministry to state that it is investigating the “briefing arrangements” is ominous because it will eventually put the minister front and centre where this controversy is concerned.
The ministry has already publicly confessed to a “misrepresentation” of the position of the Government of T&T in respect of the statement made by its ambassador who is being referred to as a “public official” which is a slap down to him.
He was not even afforded the courtesy of being publicly addressed as an “ambassador” which is what he is.
In the diplomatic world, the use of words must always be very carefully examined to get clues to the intention behind what is being said.
What comes through in that statement was the attempt to temporarily shield the minister by putting the blame on “briefing arrangements” as opposed to the minister’s policy.
Secondly, the “ambassador” has been downgraded to a “public official” and, thirdly, there is an open confession of policy error.
Ambassador Thomas will have a lot more to consider than the documents that have been leaked to date in this matter.
The one thing that the public has is the official statement of the ministry. Prime Minister Rowley did not hide the fact that he was shocked by the contents of the report that he received.
It is apparent that the T&T delegation to the OAS was in favour of giving Dominica the two-year waiver however, the ambassador sought guidance from the ministry itself (not the kind of thing that a rogue diplomat would do).
He apparently got his directive and he faithfully complied with it. Now we hear that that was a “misrepresentation.”
If the ambassador deviated from his brief, then he is at fault. For everything else, there is individual ministerial responsibility.
Last week there were a number of errors of judgment that decorated the public square. The most glaring was the one committed by Prime Minister Dr Keith Rowley in demoting Darryl Smith from the position of Minister of Sports and Youth Affairs to Minister in the Ministry of Housing and Urban Development.
This was apparently done in response to a front page story in the Express about Smith that was most unpleasant. By Monday evening and overnight into Tuesday morning, it seemed as though the Prime Minister had made a serious error of judgment based on the information that he already had before him.
By Tuesday afternoon, it was apparent that there was “new information” that caused the Prime Minister to advise the President to have Smith’s appointment revoked. The fact that it took “new information” to convince the Prime Minister is where the discussion about an error of judgment will go.
What was already in the public domain was enough on the face of the record to warrant dismissal. The decision to demote was clearly a miscalculation and the public response was swift which caused the Prime Minister’s response to also be swift, once the backlash had hit home.
What was most disturbing was the error of judgment shown by some on social media and in the wider society who unfairly attacked the new President, Paula-Mae Weekes, with an uninformed narrative about Smith’s demotion. This forced the President to issue a forceful public statement which read, in part, as follows:
“It has come to the attention of Her Excellency President Paula-Mae Weekes that there is currently in circulation on social media a message stating that the President refused to act upon the Prime Minister’s advice and appoint Darryl Smith as Minister in the Ministry of Housing. Her Excellency denies unequivocally any such action.”
That should never have happened from people who ought to have known better. Those on social media who joined the fray with an ignorant rant about the Prime Minister making a “pappyshow” of the presidency was based on the erroneous belief that people who had their portfolios reassigned would be required to take an oath of office.
Nothing could have been further from the truth, but nevertheless, there were plenty of errors of judgment, and of fact, floating around between the Smith demotion and subsequent dismissal and the Maxie Cuffie re-assignment from Minister of Public Administration and Communications to Minister in that Ministry.
Prime Minister Rowley has been grappling with the political effects of Minister Cuffie’s situation. He has to balance compassion with the public interest. Apart from demoting Minister Cuffie to a position whereby he is unable to perform the duties of his office, the President would have had legitimate grounds to raise questions about this if it were an appointment, and not a reassignment.
Cuffie was granted leave of absence from the sittings of the House of Representatives for the month of April and we shall see how long this will continue. The challenge for Cuffie right now is to get better. It is obvious that he cannot continue to function as a minister or as MP for La Horquetta/Talparo. The revival of Marlene McDonald as a minister was designed to soften the administrative difficulties of operating the Ministry of Public Administration and Communications with an absentee minister and the Prime Minister holding on for him.
The Prime Minister has now seen it fit to add to his workload by becoming the substantive Minister of Housing and Urban Development and he had planned to have a junior minister to assist him, but those plans were scuppered when he had to dismiss Darryl Smith.
With all of this controversy swirling around the Government, at some point, they will have to sit down and ask themselves: How did they get here?
In 1999/2000, the then Panday administration made significant alterations to the Sexual Offences Act 1986. The big issue in 1986 was the question of “marital rape” in section 4.
The Chambers administration left out marital rape as an offence in the law. The Panday administration criminalised it.
However, one issue that was left intact from the late nineteenth and early twentieth centuries was the act of buggery that had been criminalised by the British colonial authorities.
In 1986, the Sexual Offences Act left that intact by repealing and replacing what was existing law with some modifications and there was really no debate about buggery as an offence when compared to the marital rape debate.
The 1999/2000 amendment process for the 1986 Sexual Offences Act ended with Act No 31 of 2000. Marital rape was recognised, while the penalty for buggery was increased from ten to 25 years. In those days there was little or no debate or dialogue about increasing this penalty.
Fast forward to today and the case brought by activist Jason Jones has been decided in an environment that is substantially different from 1986 or 2000.
However, there is evidence that one independent senator at that time (1999/2000) spoke out on the issue of buggery during the debate on the amendment. According to former independent senator Diana Mahabir-Wyatt in the debate on the amendment to the Sexual Offences Act 1986 on December 1, 1999, she said:
“When it comes to an adult and another adult, though, I would like to recommend that this be removed, consistent with what is happening in the laws throughout the Commonwealth, and be replaced by another section which would be 13(a), I suppose, to read: “An adult person who commits buggery on another adult person is guilty of grievous sexual assault where the act is committed in circumstances which would constitute a grievous sexual assault under section 4(a)….” Hansard, Senate, December 1, 1999, p 61).
In many respects, her proposed amendment back in 1999, that was not accepted then, may become relevant now having regard to the global trends that will naturally affect the way in which the judicial process is likely to emerge on this issue.
The State may need to equip itself from now to prepare for what is likely to become a final outcome in law and be ready for it.
The Mahabir-Wyatt amendment of 1999 may have relevance today. That is a matter for the Ministry of the Attorney General to consider, especially since the Attorney General himself has adopted the view that the State will appeal Justice Devindra Rampersad’s ruling because the Attorney General feels that it would be best for a full adjudication of this matter up to the level of the final court of appeal—the Privy Council.
Perhaps, the real reason for the appeal is a political strategy to permit the Government to buy political time based on a gamble that they will placate many of their supporters who are opposed to this court ruling with a perceived opposition to it that will not be finally determined until after the 2020 general election having regard to how slow the wheels of justice roll.
If the Government were in support of the outcome, they would not appeal. Mahabir-Wyatt had this to say in her 1999 contribution:
“Where it is consensual, I would hate to think that married couples consenting to sexual activity to which they happen to have no objection, would be regarded as criminals and sentenced to 25 years in jail...I think it is time we stop being hypocritical about this kind of thing and remove consensual adult sexual behaviour in private from penalties in the law, because I think to leave them in is simply hypocritical.” (p 62).
The debate has started and the clash will now be between religion and man-made progressive thought.
Last week, the Sir Arthur Lewis Institute of Social and Economic Studies (Salises) held its 19th annual conference in Montego Bay, Jamaica, under the theme Sustainable Futures for the Caribbean.
Part of the reason for holding the conference in Montego Bay was to reconnect with the historical event in September 1947 when the Conference on the Closer Association of the British West Indian Colonies was held there. Just over 70 years ago the Secretary of State for the Colonies, Arthur Creech Jones, convened a meeting of representatives from all of the British West Indian territories to discuss the idea of a federation for the region.
Ten years after that historic meeting, the Federation of the West Indies was born only to die in 1962. It was a noble attempt, but the Royal Commission under the chairmanship of Lord Moyne had warned in their 1939 report that it was doubtful of success because of the insularity that they had seen, but nevertheless it was a laudable goal that should still be pursued.
Just over 70 years later, in the seventieth year of the University of the West Indies, the assessment of where the region stands on a whole host of issues was debated and discussed over three days (Wednesday to Friday). From my own perspective, my presentation addressed the fact that the Westminster-Whitehall model of constitutional systems that are operated in 11 of the 12 Commonwealth Caribbean countries will continue to persist as it has done since independence with no substantive foreseeable change in our immediate future.
All of the 11 other Commonwealth Caribbean countries have retained the parliamentary model that is the hallmark of the Westminster-Whitehall model. This persistence may be explained, in summary, by recourse to (i) historical antecedents; (ii) the persistence of an elite colonial mindset; (iii) single-state independence as a response to the 1962 demise of the West Indian Federation; (iv) widespread public ignorance of alternative constitutional options; (v) general public apathy for any change; (vi) difficult procedures for undertaking actual reform; (vii) debate about evolution or importation of constitutional institutions; (viii) absence of political consensus on the reform issues and process; (ix) the desire to insert Washington model techniques to create a new hybrid without departing from the parliamentary model.
In terms of historical antecedents, it must be noted that at the end of the very same Conference on the Closer Association of the British West Indian Colonies held in Montego Bay, the following resolution was unanimously passed as recorded in the official report of the proceedings:
16. Mr H A Cuke, OBE of Barbados, then asked permission, as a representative of the oldest of the British Caribbean Colonies, to move the following resolution, which was seconded by Mr F A Pixley of Jamaica, as members of the conference rising to their feet while recording their unanimous agreement:
RESOLUTION 15 RESOLVED:
That this conference humbly affirms its loyalty and allegiance to the Person and Throne of His Most Gracious Majesty King George the Sixth, and that the terms of this resolution be conveyed to the Secretary of State for the Colonies for transmission to His Majesty.
Last week, all Caricom Heads of Government joined their Commonwealth counterparts to reaffirm their commitment that His Royal Highness Prince Charles will succeed his mother Queen Elizabeth II as Head of the Commonwealth.
This is not a criticism of that fact, but an explanation that the psyche of West Indian peoples is not alien to a connection with its British imperial colonial past. There are other factors that I alluded to that will account for the persistence of the Westminster-Whitehall model of governance to which the region has clung tenaciously without substantive change, with the exception of Guyana and the influence of left-wing ideology and electoral abuse.
For the time being, the Westminster-Whitehall model is here to stay.
On April 1 instant, I wrote on the issue of the Constitution (Amendment)(Tobago Self-Government) Bill 2018. Today, I am following up with another instalment.
Section 8 of the bill seeks to empower the Tobago Legislature with the ability to infringe human rights separate and apart from the power of the national Parliament to do so, by using the same method as the national Parliament. That is to say, both Houses of the proposed Tobago Legislature will be able to enact Tobago Statutes with a three-fifths majority in either House that may be inconsistent with fundamental human rights and freedoms in the national Constitution. This is a very sensitive matter for a legislative body like the Tobago Legislature, that is cast in the bill as having inferior powers to the national Parliament.
These provisions may draw considerable commentary, as the prospect of Tobago Statutes that differ from national laws on the issue of the inconsistency of legislation that infringes the fundamental human rights and freedoms of citizens in one island, as opposed to the other island, could be quite controversial.
It is true that such legislation, as is the case now, will be subject to review by the courts on the basis that it may be deemed not to be “reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.” The granting of such powers to the Tobago Legislature does have the capacity to create a two-tiered system of infringed human rights and freedoms in relation to certain pieces of legislation that could cause unnecessary controversy between one island and another.
The proposed section 141U in the bill seeks to establish The People’s House and it revives the seven parishes of Tobago that existed from the colonial era. These parishes–St Andrew, St David, St George, St John, St Mary, St Patrick and St Paul—all have different population sizes that will not use the Elections and Boundaries Commission formula for having relatively equal population sizes for seats as is the case for the national elections.
Nevertheless, The People’s House will be no different from the Tobago House of Assembly because it will have both elected and nominated members sitting side by side with special interests being considered for nominated membership of The People’s House. The bill casts The People’s House as an inferior chamber to the House of Assembly as seen in the provisions of the proposed section 141A(17), yet they both have elected and nominated members sitting side by side.
It will be necessary to find a formula to remove the nominated element from the House of Assembly by having its councillors elected so that it can be considered an all-elected House, which will give it that higher-level legitimacy to justify its superiority over The People’s House.
Such a move can be attained by copying the proportional representation techniques employed in the city, borough and regional corporations in Trinidad that now use proportional representation for the election of aldermen. If that formula were to be used for the councillors in the Tobago House of Assembly, then that House could truly be called an all-elected one and thereby justify its superiority over The People’s House.
The results from the 15 seats cast on first past-the-post can be tabulated to calculate the allocation of the four councillors between the parties that contested seats. This could be an antidote for the possibility of one party winning all the seats and the office of Minority Leader having to be declared vacant as it is quite possible that with proportional representation for the four councillors, at least one of them would be likely to be allocated to a losing party that did not share in any of the 15 seats, but those voters will be guaranteed some kind of representation when all of the votes are calculated across the island.
Last Sunday, Dr Morgan Job, activist, media personality, former parliamentarian and intellectual, passed away. He was someone who made a mark in the society by the passionate manner in which he advocated his points of view. That passion caused him many moments of controversy that either endeared him to some and let others view him with disdain.
He was a patriot who felt very strongly about the path of development that his country was following. He was vehemently opposed to the model of state control of the economy and felt that poor people were continuously exploited by the political class who used them as tools of division in society by the machinations of race-driven electoral politics.
He felt that those vulnerable persons were being led like swine to the slaughter by political communicators who used divisive messaging to create anxieties of fear and panic of what would happen if the “other side” were to get into power. His manner of delivering the message was often highly controversial.
His entry into elected politics came as the replacement NAR candidate for ANR Robinson in Tobago East in 1997, which caused controversy as there was a split in the NAR in Tobago and Dr Winford James contested the seat against him as an independent after James was not selected as the NAR candidate. Job won the election and was immediately appointed into the Panday Cabinet.
Basdeo Panday told the CNC3 News last Sunday that Job always seemed more interested in ideas than in the business of Parliament.
In many respects, that characterisation may have been apt, because Job was always pushing ideas either through his media forums or in the hallways of the Piarco International Airport in his post-parliamentary life, where he encountered many local travellers whom he knew he could encourage to buy his books or his CDs.
The fact that he continued to produce both was a testament to the reality that he was a thinker.
During his parliamentary tenure, he made many contributions to bills before the House of Representatives. Some classic moments are as follows:
The Domestic Violence Bill 1999 “When these people come and day after day incite people to believe in this causal connection that is not there, that if you are unemployed you must beat up your wife, if you are unemployed you must rape your daughter, if you are unemployed you must commit domestic violence, it is specious and tendentious. It does not derive from any consideration of logic. It is merely a kind of Machiavellian mischief devoted to the purpose of canalizing emotions for a particular political objective which is the ascendancy to executive power. It has nothing to do with the bill, Mr Speaker.” (Hansard, HOR, 29 July, 1999, p. 443).
The Finance Bill 2000 “For the benefit of the Member for Diego Martin West, I have never at any time impugned the motives of the late great Dr Williams with respect to his ambitions to expand secondary education to benefit everybody.
What I am just asserting and repeating for the benefit of all of us, is that we must understand that we never had a proper evaluation.
We never had an incisive and dispassionate evaluation of the costs and consequences of that system, with the result that some people, minority groups, benefited from it more than the people who it was intended to benefit, and we have to rectify that. We must rectify that, because it is costing us too much.” (Hansard, HOR, 27 October, 2000, pp. 299-300).
These quotes capture some ofwhat Morgan Job stood for and somehow he seemed to have been very misunderstood about his views and his intentions. He never lived a life of luxury, so his passionate expressions were always principled and he never wavered for personal fortune. May he rest in peace.
The CCJ changed its guard at the farewell session of the court in Antigua last week for Sir Dennis Byron who ended his judicial career and handed the reins over to Mr Justice Adrian Saunders.
This will usher in a new era for the CCJ and there are ongoing matters of status and titles that will pass on to Justice Saunders that were hallmarks of the tenure of both Michael de la Bastide and Sir Dennis. One of these major issues is whether or not the convention of having the President of the Caribbean Court of Justice sworn in as a member of Her Majesty’s Privy Council, as was done in the cases of Michael de la Bastide and Sir Dennis.
It is extremely awkward to talk about moving from the Judicial Committee of Her Majesty’s Privy Council and embracing the CCJ as the final court of appeal if this is going to be the example shown at the top. The other issue of concern is the matter of the President of the CCJ being knighted if that person comes from a Caricom country that still uses the British honours system as part of its national awards. Antigua and Barbuda, Barbados, Grenada, and St Lucia have all instituted a system of absorbing the knighthood into their national honours. This means that the title has been assimilated into the Caribbean psyche in some countries so that the highest awards can still be “Sir” and “Dame,” but just not awarded at an investiture held by Queen Elizabeth II.
The deeper issue being analysed here is the intertwining of the CCJ with the British honours system or its regional reproductions and the extent to which the knighthood is regarded as the gold standard of public affairs accomplishment in our region.
There are still countries besides Barbados, Belize, Dominica, and Guyana that have not yet acceded to the appellate jurisdiction of the CCJ, while all countries of Caricom belong to its original jurisdiction. This issue of knighthoods and membership of Her Majesty’s Privy Council cannot be treated lightly as it goes to the core of the identity of the court.
There is another matter that was reported to the police in T&T in a criminal complaint last October regarding membership of the Regional Judicial and Legal Service Commission which has not been reported in the local press. This is a very serious matter as the complaint was made and threats of a libel action have made in retaliation to the person who made the complaint. Justice Saunders may have to keep a wary eye on this as he assumes office as President of the CCJ and the local police need to do their work expeditiously to make a determination in this matter soon.
The CCJ debate is going to continue as there have been statements out of Grenada that suggest that the Government will make another attempt to reform the constitution to abolish the Privy Council and replace it with the CCJ after it was rejected in a referendum in November 2016.
The reality is that Grenada is an interesting test case for the abolition of the Privy Council as it had been removed during the tenure of the People’s Revolutionary Government (PRG) by People’s Law No 84 in 1979. After the collapse of the PRG and the holding of a general election in December 1984, the new Government validated the abolition of the Privy Council in 1985. However, once the murder trials involving some of the former revolutionaries had been completed, the then government of Grenada re-joined the Privy Council in 1991.
What will happen this time around will be interesting to observe as there was only a 32 per cent turnout in the last referendum and a majority voted against having the CCJ as the final court of appeal.
Last Wednesday and Thursday, the Sir Arthur Lewis Institute of Social and Economic Studies (Salises) of The University of the West Indies (UWI) held two events in Tobago to launch its Outreach Programme.
The centrepiece of those events was the Constitution (Amendment) (Tobago Self-Government) Bill 2018.
Highlights of those discussions included the issue of whether T&T should consider the idea of becoming a federal state because the issue of internal self-government for Tobago will still leave Trinidad as the dominant partner in the union despite the proposal for there to be “equality of status” between “the Island of Trinidad” and “the Island of Tobago.” When read alongside section 13 of the bill which seeks to amend the powers of the Presidency in section 80(1) of the Constitution by replacing the existing provisions by proposing that the President shall act in accordance with the advice of “(a) the Cabinet or a Minister acting under the general authority of the Cabinet, in relation to matters under the Government of Trinidad and in relation to Tobago in matters under the Fourth Schedule…”
Nowhere in the bill is “the Government of Trinidad” defined, while the “Tobago Island Government” is clearly defined in section 6 of the bill. However, provision is being made for the President to exercise powers in respect of an entity called “the Government of Trinidad.” Subsection (b) then goes on to specify the manner in which the President shall act on the advice of “the Tobago Executive Council” separate and apart from the Cabinet.
This issue has also raised the question of why the jurisdiction of the Tobago Island Government is defined and there is no definition for the jurisdictional boundaries of “the Government of Trinidad.” The jurisdictional limits for Tobago statutes are defined in section 18 of the bill as follows:
“A Tobago Statute shall have effect in Tobago, Little Tobago, St Giles Island, Marble Island, Goat Island, Sisters Island and such area of the archipelagic waters of Trinidad and Tobago, including any islands, the seabed and the subsoil, that lies within eleven miles from the low watermark of Tobago.”
With Tobago being specified to enjoy “equality of status” with Trinidad, there is a debate about why is there no definition of the equivalent jurisdictional boundary for “the Government of Trinidad” stated in the bill.
It is difficult to corral Tobago in the way defined without corralling Trinidad in a similar way, otherwise, the principle of “equality” will be difficult to enforce as Tobago will remain inferior to Trinidad.
Perhaps, where the issue of the continued inferior status of “the Tobago Island Government” is confirmed lies in section 18 of the bill that proposes in a new constitutional section 141 AD (3) (a) where provision is being made for a Fiscal Review Commission which will be empowered to “determine and recommend to Parliament the sums required to be appropriated to Tobago in each financial year.”
This particular section clearly does not confer on the Tobago Legislature any power to appropriate funds for Tobago and leaves intact the arrangement that Tobago will still have to depend on the national Parliament for its budget.
This Fiscal Review Commission will consist of (i) a Chairman appointed by the President in her discretion after consultation with the Chief Secretary and the Prime Minister, (ii) two members appointed by the Tobago Executive Council, and (iii) two members appointed by the Cabinet.
In the absence of any definition of “the Government of Trinidad” which is mentioned in section 13 of the bill, there is only a curtailment for Tobago. If the principle of “equality” is to be meaningful, there must be a similar “Government of Trinidad” defined in the bill with the same limitations as the “Tobago Island Government.”
Perhaps, the only way that such constitutional equality can be established will be to change T&T from being a unitary state and convert it into a federal state. In that way, the state of Tobago can be “equal” to the state of Trinidad which could have similar institutions as are being contemplated for Tobago and above the two “equal” states will be the Federal Government of T&T, much like California (very large) and Vermont (very small) being equal states of the union in the USA and the Federal Government being located in Washington, DC. This bill will offer that opportunity if adequately amended.
For the second time this year and for the seventh time overall in Commonwealth Caribbean national electoral history, one party won all of the seats in the May 24 Barbados general election.
T&T had this phenomenon in 1971, Jamaica had it in 1983, St Vincent and the Grenadines had it in 1989, Grenada had it in 1999, 2013 and 2018, and now Barbados.
At the sub-national level, it happened in the 2013 Tobago House of Assembly elections.
The effect of this type of outcome is one of the risks of the first past-the-post system in small-island territories either because of an overwhelming vote by the electorate for one party or because of a no-vote campaign as happened in T&T in 1971 and in Jamaica in 1983.
The reality is that overwhelming popular expression of electoral will can cause problems for small-island Westminster-Whitehall democracies in ensuring that there is an opposition to provide a check and balance on the exercise of executive power.
The reality is that, of the listed countries above, where there was a landslide election with one party winning all of the seats, only two of them have specific provisions for an alternative plan of action to ensure continued functionality of the process of government, notwithstanding the absence of someone to hold the position of Leader of the Opposition.
Both Jamaica and Barbados have such fallback provisions in their Constitutions at section 81 (Jamaica) and section 75 (Barbados).
While the Jamaican and T&T Constitutions were formulated around the same time in 1962, they both had very different provisions for vacancies in the office of the Leader of the Opposition.
Barbados has the following provision in its Constitution:
“75. During any period in which there is a vacancy in the office of Leader of the Opposition by reason of the fact that no person is both qualified in accordance with this Constitution for, and willing to accept, appointment to that office, the Governor-General shall-
(a) act in his discretion in the exercise of any function in respect of which it is provided in this Constitution that the Governor-General shall act in accordance with the advice of the Leader of the Opposition…”
This subsection would seem to confer on the Governor-General a right to substitute her own discretion for that of the advice of the Leader of the Opposition in cases where there is no Leader of the Opposition.
However, last Friday one of the BLP MPs, Bishop Joseph Atherly, the MP for St. Michael West, decided to cross the floor and become Leader of the Opposition. After campaigning on a BLP ticket, he suddenly decided that he is opposed to the Government he helped to elect.
Prime Minister Mia Mottley spoke last Sunday about a constitutional amendment to use a mathematical formula to determine the appointment of opposition senators when she said:
“We have discussed the need for an urgent amendment of the Constitution to allow the Opposition political party securing the highest number of votes to recommend two appointments to the Senate because we believe that even though there has been no official Leader of the Opposition, my government would wish to have accommodated the views of the main opposition party that secured the largest amount of votes.”
This proposition was thrown out of the window with Bishop Atherly’s decision to cross the floor and now two opposition senators will be appointed.
Grenada attempted to amend its Constitution in November 2016 when one of the seven constitutional amendment bills put before the electorate in the compulsory referendum sought to rectify their situation.
That bill proposed that someone who did not win a seat in the House of Representatives could become a member by virtue of the Governor-General consulting the “leadership” of the political party that got the second highest number of votes in the general election to appoint one of the members of that party as the Leader of the Opposition in the House of Representatives with all of the rights and privileges of the other elected MPs.
That proposition was rejected by the Grenadian electorate in the constitutionally-required referendum by a margin of 15,481 against, and 6,113 for, the amendment.
The deeper political issue for consideration is how to balance constituency representation with checks and balances for the executive.
A mixed system of proportional representation and the first past-the-post system might more effectively solve the problem.
The landslide victory by the Barbados Labour Party (BLP) in the general election on May 24 instant has had two significant outcomes. The first was the fact that they won all 30 seats at stake and that removed the prospect of there being any opposition in the House of Assembly.
That left the new Prime Minister Mia Mottley talking about a constitutional amendment to facilitate the need for an opposition in the Parliament. One week after the election, one of the BLP MPs decided to cross the floor and become Leader of the Opposition. Bishop Joseph Atherley, the MP for St Michael West, resigned from the BLP and he has now turned against the party that he encouraged Barbadians to vote for.
What was in his heart when he was campaigning for the BLP during the election campaign? Was he secretly harbouring the thought that he was going to become the Leader of the Opposition right after the election or was this an opportunistic move after the election because he was left out of being appointed to any ministerial portfolio when the Prime Minister named her Cabinet?
The outcome of the election is now effectively that the BLP has formed both the Government and the Opposition. Atherley cannot have undergone a conversion like Saul to become Paul on the road to Damascus. There is no earthly reason for him to have undergone such a conversion to be suddenly opposed to everything that the BLP stands for in its manifesto when he signed that document with his fellow candidates. Organically, he is BLP at heart. There is no way that such a change could take place just like that in one week after such an historic victory.
Atherley has only appointed one opposition senator so far. He has promised to appoint the other one very soon. The BLP manifesto has him starring prominently on page 32, which highlights the following headline: “Lay New Economic Planks for Growth and Development”.
As if that was not enough, all of the candidates put up by the BLP for the election signed their manifesto on page 72 of the document. Those signatures were placed in a circular fashion around the following message:
“Team BLP 2018. This is Our Commitment. This is Our Sacred Trust with The People of Barbados”
Really? A “Commitment?” ? A “Sacred Trust?” That was not the case for Atherley. He had other plans to convert his exclusion from the Cabinet into an opportunity to get some perks for himself. Technically, he solved a major constitutional problem by forming the Opposition in the House of Assembly contrary to the “sacred trust” and his “commitment” given under his hand.
Was he elected to be part of the Government or was he elected to jump ship as soon as his party got elected into office? Unlike T&T, there are no crossing-the-floor provisions in the Barbadian Constitution that would have permitted a by-election to be held if a person who is elected on the ticket of a party then resigns from, or is expelled by, that party and has their seat declared vacant.
The voters of St Michael West will have to swallow the actions of their MP as he enjoys the perks of the office of Leader of the Opposition which are better than those of an ordinary backbencher because the opportunity presented itself and he made an opportunistic move.
The reality here is that he is going to function like a pressure group inside of the BLP which will allow him to give critical support to the measures and policies that will emerge from the manifesto to which he affixed his signature.
The Democratic Labour Party (DLP) will have been crowded out by Atherley’s actions however, their task of rebuilding may be facilitated by them using Atherley as a whipping boy. They may be able to label him as a fake opposition in order to advance their cause.
Prime Minister Mottley has a huge task on her hands to turn the fortunes of Barbados around. If Atherley functions as an ally to her in the process while pretending to be opposed to her, the DLP will get what they need to rebuild from the licking of their lives.
On paper, there is an opposition in Barbados. In reality, it is a mirage.
As the Joint Select Committee on the Constitution (Amendment)(Tobago Self-Government) Bill 2018 continues, the issue of the “equality of status between the Island of Trinidad and the Island of Tobago within the sovereign democratic State of Trinidad and Tobago and the Island of Tobago shall no longer carry the designation of a ward…” as expressed in the section 5 of the bill needs to be examined.
The only way that such an intent can be accomplished is if this bill, in its current form, is amended. This bill is a very fundamental attempt at constitution reform which permits the Parliament and the citizens the opportunity to reset the foundation stone of the State in a way that will permit an age of renaissance in this country that is sorely needed.
However, to accomplish this desire to create “equality of status” between the islands will only come with a substantive amendment to the Constitution. The current proposed arrangements will only permit a nomenclature change which will leave Tobago in a position of dependency on Trinidad and not having the opportunity to have final responsibility lying in Tobago.
The concept of the unitary state will have to be set aside in favour of a federation whereby the jurisdiction of Tobago that is proposed to be defined as 11 miles from the low water mark around Tobago without such an equivalent definition for Trinidad will need to be revisited. For equality to be meaningful, there will have to be a similar limitation for Trinidad so that the remaining undefined waters will fall into the national space.
This concept will stretch the imagination to consider that only through a federation will true “equality of status” come. In section 4 of the bill, the preamble to the Constitution is proposed to be amended to include the following:
“(ca) recognise the right to self-determination of the people of Trinidad and Tobago including the right of the people of Tobago to determine in Tobago their political status and freely pursue their economic, social and cultural development.”
Why does this proposed section not include a similar right for the people of Trinidad to determine their political status and freely pursue their economic, social, and cultural development? If the bill were to do that, it would convey the equality of status that it envisages.
Tobago and Trinidad can co-exist very comfortably in a federal state with each island having its own government and there being a federal government in Port-of-Spain with powers that apply across both islands as a single nation.
There could quite easily be a Trinidad Legislature that would be responsible for government affairs in Trinidad only with an equivalent Legislature in Tobago that will be responsible for government affairs in Tobago only.
To accomplish this there can be a Concurrent List of powers and an Exclusive List of powers. Without that, there will be an isolation of Tobago inside of a defined geographical boundary, while the effective Government of Trinidad will be the central government of T&T with a domination of needs by Trinidad.
Part of the historical hurt that was imposed on Tobago in 1899 when the union was effected was the fact that the then existing laws of Tobago were set aside and the laws of Trinidad were imposed on the new twin-island colony as the existing laws of T&T.
Those existing laws and all others after that were deemed at independence to be the existing laws of T&T and further continued up to the acquisition of republican status when a new set of existing laws were defined. That is why there is a provision in section 5 of the bill that talks about Tobago no longer carrying “the designation of a ward.” That designation arose out of the 1899 arrangements that pushed Tobago backwards at the expense of Trinidad.
To simply say that in any laws that may exist since 1899 that still refer to Tobago as a ward that this reference shall no longer apply is laudable, but the effect of the rest of the provisions will still leave Tobago in a secondary position unless equality is guaranteed by a federal formula.
There is a tremendous opportunity to effect a renaissance in T&T with a completely different state formula that will ignite new opportunities for the society. A federation of T&T offers that possibility.
When she unveiled her party’s manifesto on May 10 at Kingsland, Christchurch, BLP Leader Mia Mottley told the crowd as follows: “I said it before that we would do whatever is necessary, that is legal and moral, to rescue this country. Does that mean going to the IMF? It may, we don’t know. But when we get the results in the first few days, we will be able to make the judgment.”
That position gave Mia Mottley the political leverage that she now needs as Prime Minister to take the steps that she outlined in her press briefing two Saturdays ago when she and her delegation returned from meetings in Washington with managing director of the IMF, Christine Lagarde.
By contrast, that was not a position that could have been adopted by the Rowley administration in T&T after the 2015 general election. Back then, the PNM signed an MOU with the Joint Trade Union Movement (JTUM) on August 27, 2015, that clearly bound the PNM not to pursue any approach to the IMF if it were to be successful in the general election.
As a consequence, the PNM in government has chosen not to approach the IMF however, their relationship with JTUM has deteriorated badly based on last Tuesday’s events in Fyzabad where JTUM leader, Ancel Roget, used a scorecard approach to measure the performance of the Government and he was scathing in his assessment.
Meanwhile, back in Bridgetown, Prime Minister Mottley told the press briefing that Barbados had to suspend its debt payments because of how bad the situation was with a debt burden of BDS$1.8 billion, although she admitted that the burden was closer to BDS$1.9 billion as more and more obligations were being discovered since she came into office. What was most interesting is that she told Barbadians: “Relax. We got this one.”
She indicated that the delegation that went to the IMF had to ensure that they addressed what she called “mission-critical issues.” She revealed that Madame Lagarde responded positively and that an IMF team will come to Barbados from July 2 to 12 instant.
Mottley’s main priorities are fixing a broken infrastructure and protecting the most vulnerable. Quite interestingly, she spoke about a pay increase for public servants who had not had an increase for several years and that the last decade saw the largest exodus of senior public servants since independence.
Her argument was that by signing up with the IMF, Barbados would find that new capital would be released which was vitally necessary and that the interest rate was at one per cent, which she highlighted in the press briefing. Her argument was that successive downgrades had prevented Barbados from going into the international markets, but with clearance through the IMF that would all be set aside and new capital would be made available to Barbados.
This is a most interesting development because she has the political capital necessary to spend on the decision to go to the IMF, while unlocking financial capital in the process. Two other goals that she highlighted were (i) protecting the quality of life for Barbadians, and (ii) protecting the value of the Barbados dollar. She argued that Barbados had nothing to gain by devaluing its dollar as it does not have a large manufacturing sector and any devaluation would hurt its economy.
This latter point must be contrasted with T&T where the approach of the Government has been to let the value of the TT dollar slip gradually to where it is now. There is a debate among economists about the devaluation of the TT dollar, while in Barbados the Government there is resolute about defending the value of its dollar.
Another matter addressed by Prime Minister Mottley was the fact that she wanted to approach the international market place by going through the traditional route of the IMF, while she contended that the former DLP administration wanted to pursue debt restructuring through the United Arab Emirates (UAE).
Her argument is that the IMF borrowing will be at one per cent and that the IMF has changed its approach and is now willing to complete these negotiations in three months as opposed to the much longer periods than before with other countries. The process has started and we now wait to hear the outcome of the negotiations with the IMF