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Sunday, February 19, 2017

The recent statement by the Attorney General that the requirement for a three-fifths majority in certain legislation has made him tired of the way that the Opposition has handled such legislation in this Parliament is very disturbing.

The Constitution has built-in checks and balances for any occasion when Parliament seeks to legislate in a manner that will cause it to infringe fundamental human rights and freedoms.

As I indicated in my column on January 22 last, at the Queen’s Hall Conference on the independence constitution in April 1962, the 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 1950 model and replaced it with the Canadian model, suitably modified.

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 three-fifths majority in both Houses of Parliament was smaller than the special majorities required for amendment of the Constitution. By doing this, T&T had accepted a version of consensus government that no other Commonwealth Caribbean country would ever adopt. In terms of the Senate there was always a fixed formula that would require any government to seek the votes of senators other than those on the Government side because there is no built-in government majority there.

However, in the House of Representatives, if the Government fails to win a three-fifths majority of the seats at the polls, then it has to engage in consensus dialogue with the Opposition in order to enact legislation that infringes human rights. It cannot apply single-party hegemony to such a situation that it did not earn because the will of the electorate denied them such a majority.

The first time that any government ever faced such a situation was in the 1991-95 Parliament where the PNM won 21 out of the 36 seats.

On May 19, 1992, Mr Justice Aeneas Wills overturned the Maxi Taxi Act 1979 on the ground that it did not have the preamble and the certificate for a three-fifths majority and was therefore unconstitutional among other issues relating to property, etc.

The Parliament was required to urgently enact legislation in order to ensure that the country’s maxi-taxis could continue to operate legally. The PNM did not have a three-fifths majority in its own right and so it had to negotiate with the Opposition in the House of Representatives. The bill was passed in the Senate on May 28, 1992, with the Opposition abstaining, but there were enough independent senators to permit its passage.

When the bill went to the House of Representatives the following day, there was interesting debate between the Government and the Opposition. However, there was an adjournment based on prime minister Manning’s desire to negotiate with the opposition. The next day, the bill passed in a sitting that lasted only 25 minutes because of the overnight agreement and concessions made on all sides.

Prime minister Manning and attorney general Keith Sobion were able to solve an issue in 1992 that required consensus with the Opposition by not applying the single-party dominance model that is being expressed by the PNM today.

The recent decision to strip the Marriage Bill of its three-fifths majority requirement and the recent statements of the Attorney General with regard to future legislation that may involve infringements of human rights without the three-fifths majority are deeply disturbing and at variance with past PNM administrations that did not have a three-fifths majority.

When your party does not earn a three-fifths majority, it is necessary to have consensus governance with the Opposition under the constitutionally-grounded rules of engagement for infringing human rights that were agreed at Queen’s Hall and Marlborough House in 1962 and reinforced in 1976 when we became a republic.

The Hugh Wooding-led Bar Association in 1962 introduced these constitutional rules of engagement. The Reginald Armour-led Law Association of today has decided to reserve its position on the Attorney General’s recent statements until it sees something tangible put into the public domain.

They need to ensure that they do not lose sight of the long-standing traditions of the bar that are at stake here both in terms of the Wooding legacy and the societal need for human rights protection. If they surrender in the face of such a threat, then the society will lose a powerful voice that could protect it.

No Attorney General, faced with the need to uphold these enshrined constitutional protections because their party did not win a three-fifths majority at the polls, has ever publicly complained about the need to employ abandonment of these checks and balances in order to advance the legislative agenda of their government.

The fate of the Maxi Taxi Act 1979 is instructive.


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