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Government and Opposition consensus

Sunday, October 9, 2016

At the Queen’s Hall Conference on the Independence Constitution in April 1962, then president of the Bar Association of T&T, Hugh Wooding, advanced a proposal for T&T to adopt the Canadian Bill of Rights 1960 as the model for its chapter on fundamental human rights and freedoms.

The Eric Williams Cabinet accepted the proposal and removed the European Convention on Human Rights 1960 model and replaced it with the Canadian model.

That decision was implemented in the final draft for the Independence Constitution and ushered into our system of government the need for special majority legislation outside of any constitutional amendment if ever Parliament were to consider any legislation that sought to infringe human rights and freedoms.

The size of the majority was smaller than those required for amendment of the Constitution, as it was set at three-fifths of both the House of Representatives and the Senate. Essentially, T&T had accepted a version of consensus government that no other Commonwealth Caribbean country would ever adopt.

The relevant ingredients of this constitutional adoption of the Canadian Bill of Rights 1960 model were twofold. Firstly, the government of the day will be required to make an open and transparent confession in any legislation that is deemed to infringe human rights and freedoms that it intends to do so. Secondly, the Parliament is required to arrive at a consensus greater than a simple majority, namely a three-fifths majority, in both Houses before it can be sent to the Head of State for assent.

For the first 30 years of our independence, no such situation ever arose that required both the Government and the Opposition to arrive at a consensus. The electoral outcomes in 1961—which carried over to Independence in 1962—in 1966, in 1971, in 1976, in 1981, and in 1986 gave those parliaments memberships dominated by a single party that exceeded the three-fifths majority threshold. 

The 1961-66 Parliament started off with a 20-10 PNM majority, the 1966 Parliament started off with a 24-12 PNM majority, the 1971 Parliament started off with a 36-0 PNM majority, the 1976 Parliament started off with a 24-10-2 PNM majority, the 1981 Parliament started off with a 26-8-2 PNM majority, and the 1986 Parliament started off with a 33-3 NAR majority.

It was not until 1991 that the country got its first Parliament dominated by a government majority that was less than three-fifths, namely a PNM majority of 21-13-2. For the first time in 1992, the then PNM government came face-to-face with a situation that required them to reach out to the Opposition to enact legislation that required a three-fifths majority that they did not have.

That situation arose because on May 19, 1992, Mr Justice Aeneas Wills held that the Maxi-Taxi Act 1979 was unconstitutional, null and void, primarily because it was not enacted by Parliament in 1979 with a certificate that ought to have stated that it would infringe fundamental human rights and freedoms. No such requirement was observed by the government of the day in 1979.

The 1992 Manning administration served notice of appeal, but it had a much larger problem on its hands. It had to enact a new Maxi-Taxi Act in order to regulate a part of the transportation system that suddenly had no legislation to govern it. 

For the first time under this particular constitutional requirement, a PNM government would have to reach across the aisle to the Opposition as its 21 MPs were not enough to pass the legislation because with the Speaker coming from outside in a 36-member House which now became 37, they would need the support of 23 MPs.

The bill to re-enact the Maxi-Taxi Act was passed in the Senate on Thursday, May 28, 1992, with the favourable votes of 23 senators which was a mix of those government and independent senators who were present and five abstentions from those opposition senators who were present.

On the following day, the bill was brought to the House of Representatives and the Government commenced by seeking to take it through of all its stages that day. Later in the proceedings, it emerged that if the Government were to agree to an Opposition demand for certain amendments, the Opposition would vote for the bill. The House was subsequently adjourned to 1.30 pm on the next day, Saturday, May 30, at 1.30 pm.

There were obviously discussions overnight between the Government and the Opposition which resulted in the House not commencing its sitting until 6.25 pm on Saturday. The Government had made concessions to the Opposition and there was such overwhelming consensus that the House was actually adjourned by 6.50 pm, with the remaining debate, committee stage and final vote all being taken within that 25-minute time frame. The Opposition abstention in the Senate the day before had turned into a positive vote by all 33 MPs present in favour of the bill with no absentions or negative votes.

The current FATCA legislative process could learn a thing or two from the Maxi-Taxi Act 1992 consensus. It can work.


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