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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.
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