Bill Essentials - The Constitution (Amendment)(Tobago) Bill, 2013
17 Jan 2013
New Tobago Bill to change the Constitution...
The Constitution (Amendment)(Tobago) Bill, 2013 was first read in the House of Representatives on January 7, 2013 by the Honourable Prime Minister of Trinidad and Tobago, Kamla Persad Bissessar, SC, MP. The Prime Minister moved the second reading on January 16, 2013.
What is the purpose of the Bill?
The Bill proposes to amend the Constitution of the Republic of Trinidad and Tobago to enhance the legislative and executive powers of the Tobago House of Assembly in order to promote the internal self-government of Tobago.
The Bill would alter Sections 5, 53, 54 and 61 of the Constitution and would therefore require a special majority of three-fourths of all members of the House of Representatives and a two-thirds majority in the Senate.
What are the key features of this proposed legislation?
- The Bill would provide for a new Fourth Schedule outlining the Concurrent List and Tobago List.
- Section 53 of the Constitution would be amended to limit the powers of Parliament to make laws in relation to Tobago. However, the Bill will allow for the Parliament to:-
- make laws for Trinidad and Tobago on any matter listed on the Concurrent List. Notwithstanding the Legislature of Tobago will also have power to make laws for Tobago with respect to any matter on the Concurrent List once it is not inconsistent with a law made by Parliament or a law in force before the coming into force of the proposed Act.
- have power after consultation with the Assembly, to make laws for Tobago that require a special majority of both Houses of Parliament under Section 13 on matters listed on the Tobago List.
- have exclusive power to make laws for Trinidad with respect to matters on the Tobago list. Notwithstanding, the Legislature of Tobago would have power to make laws for Tobago on matters on the Tobago List.
- have exclusive power to make laws for Trinidad and Tobago with respect to matters on the National list.
- The Bill would allow for the powers of the Cabinet of Trinidad and Tobago as recorded in Section 75 of the Constitution of Trinidad and Tobago to be amended by repealing subsection 1 and substituting a new subsection. As such, the Cabinet will assume the following new duties:-
- the right to formulate policies for Trinidad and Tobago for matters on the National List;
- the right to formulate policy for Trinidad on matters in the Concurrent List and the Tobago List; and
- consult with the Executive Council of the Assembly on matters which directly affect Tobago as listed in the Concurrent List.
- The Bill would amend Section 80 of the Constitution to authorize the President to act in accordance with the advice of the Executive Council of the Assembly or a Secretary (acting under the general authority of the Executive Council of the Assembly).
- A highlight of the Bill entails the amendment of Section 113 of the Constitution that would provide for after subsection (1) a new (1A) allowing for an appropriation for Tobago in respect of a financial year of not less than 6.9% or greater than 8% of the national budget and a new (1B) providing for the arrangement to be reviewed on terms and conditions as shall be prescribed.
- The Bill would provide for the alteration of Section 141A of the Constitution to allow for:
- The Legislature of Tobago to consist of the President the Tobago House of Assembly.
- The Legislature of Tobago to make laws for the peace, order and good government of Tobago.
- The Legislature of Tobago to have power make laws for Tobago styled "Assembly Laws" whereby the Assembly passes Bills and the President assents to such Bills except where otherwise authorized by statute.
- The President to signify whether he assents or withholds assent on Bills passed by the Assembly.
- Bills passed by the Assembly not to become law unless it has been duly passed and assented to in accordance with the Constitution.
- The option for Bills passed by the Assembly to be assented to between the end of one session of the Legislature of Tobago and the beginning of the next or at any subsequent time during the life of that Legislature.
The Bill would provide for the amendment of Section 141B of the Constitution to permit:
- The Assembly to have power to make laws for Tobago with respect to matters outlined in the Tobago List subject to Section 5, Section 53(4) of the Constitution and new subsections (2) and (3) of Section 141B.
- Parliament to have rights to pass a Bill to become an Act for Trinidad and Tobago with respect to any of the matters outlined in the Tobago list:
- once it is stated in the Act that the Act is necessary or expedient in the national interest and the Bill is passed after consultation with the Assembly.
- during a period of public emergency as defined in Section 10(4) of the Constitution; but any such Act shall cease to have effect in relation to Tobago on the expiration of the period of public emergency without prejudice to the validity of anything done under it.
- A law in force before of Section 141B comes into force to continue to be applied to Tobago until it is replaced by a law made by the Legislature in Tobago.
- The Assembly to have other powers and functions in relation to Tobago as may be prescribe subject to the Constitution.
The Bill would amend Section 141C of the Constitution to provide for:
- An Executive Council of the Assembly consisting of a Chief Secretary and other Secretaries as may be prescribed (one of whom shall be an Attorney-at-Law who shall be responsible for legal matters) to be appointed in such as manner as may be prescribed.
- The Executive Council with respect to Tobago to have general direction and control with respect to any matter/s outlined in the Tobago List and be collectively responsible to the Assembly.
- The Executive Council to be responsible for the formulation and implementation of policy in Tobago with respect to matters on the Concurrent List subject to Section 75 of the Constitution.
- A new Section 141E would provide that with the approval of the Assembly, the Secretary responsible for finance may borrow in any year such sums not exceeding 15% of the allocation for that year to the Assembly under the Tobago Public Sector Investment Programme and in every subsequent year thereafter such borrowed sums are not to exceed in the aggregate such percentage as may be prescribed.
- The Bill would also consist of a new Section 141F which would provide that the power of the Assembly and the Executive Council to have effect in the island of Tobago, its offshore islands and such part of inland waters between Trinidad and Tobago of no less than eleven (11) miles, measured from the nearest points between the two islands and with respect to the territorial sea not less than eleven (11) nautical miles measured seaward from the baselines of Trinidad and Tobago as determined in accordance with Section 5 of the Territorial Sea Act as amended.
Important issues for consideration:
- The arrangements for the Tobago House of Assembly (THA) are being enshrined in the Constitution, therefore making them more difficult to amend in the future.
- Tobago will be given a degree of financial independence and more constitutional powers for internal self-government.
- The financial arrangements in the Bill require that a fixed proportion (a maximum of eight (8) per cent) of the annual national budget of expenditure be allocated to Tobago.
- Should there be consideration of a federal structure with Trinidad (similar to countries such as Canada, Australia and Mexico) instead of internal self- governance?
- Bill will require majorities of 2/3 in HOR and Senate for Section for alteration of Section 5 and 53 of the Constitution and ¾ in the HOR and 2/3 in the Senate for other parts in the Bill to be passed.
- Has there been proper consultation with Tobagonians? It is necessary to give affected citizens a fair chance to participate in the decision making process.
- The Bill may be viewed as a step towards eventual independence of Tobago and the secession of Tobago from the twin-island State.
- Greater legislative power for the Assembly to pass laws to deal with matters set out in a Concurrent List, such as Legal Affairs, Tertiary Education, Energy and Energy Affairs, Public Utilities and Telecommunications etc.
- However certain responsibilities that currently lie with the THA such as Air and Sea Transport, Customs and Excise and Airports and Wharves have been removed and placed on the Concurrent List.
- The Assembly will have the power to pass a Bill to make laws for Tobago with respect to matters on the Tobago List such as Housing, Education and Training (except Tertiary Education), Culture and Arts etc.
- The Bill would grant that the THA can borrow up to 25 percent of the sum allocated per year to the THA under the Public Sector Investment Programme (PSIP), without the approval of Parliament
- The jurisdiction of the THA will be extended from six (6) to eleven (11) miles from the baselines of Tobago. The Bill defines Tobago with an eleven-mile limit but is silent on a definition of Trinidad, which may be seen as restricting the jurisdiction and economic viability of Tobago.
- Should the ownership of Mineral Rights be addressed within the Bill? If oil or natural gas is discovered on land in Tobago, is it owned by Trinidad or Tobago?
- Clause 8 of the Bill limits the powers of Parliament in relation to making laws for Tobago as policy formulation for matters on the Concurrent List by mandating that the Cabinet must consult with the Assembly.
- The Bill provides that Parliament may make laws for Trinidad and Tobago with respect to any of the matters enumerated in the Tobago List if the Act is considered to be "necessary or expedient in the national interest" and is passed with the concurrence of the Assembly. This may lead to undue delay and bureaucracy and may effectively give the THA veto power.
- A matter on the Concurrent list can be handled by Legislature of Tobago but it must not be inconsistent with a law made by Parliament or a provision of an existing law. However, the Bill contains an overriding clause which states that Tobago can make laws on these items providing that they are not governed by existing laws but many items covered in the list are already governed by existing legislation.
Please take the opportunity to access the Bill via the link below and feel free to submit your comments and concerns to the Parliament