Hamid Ghany

The ex­plana­to­ry notes ac­com­pa­ny­ing the The Tax In­for­ma­tion Ex­change Agree­ments Bill, 2016, read, in part, as fol­lows:

"This bill seeks to im­ple­ment cer­tain tax in­for­ma­tion ex­change agree­ments en­tered in­to be­tween Trinidad and To­ba­go and oth­er States. The bill con­tains thir­ty sec­tions and may af­fect the rights of in­di­vid­u­als to pri­vate life guar­an­teed by sec­tion 4 of the Con­sti­tu­tion of the Re­pub­lic of Trinidad and To­ba­go. As such the bill re­quires a three-fifths ma­jor­i­ty vot­ing for pas­sage in Par­lia­ment in ac­cor­dance with sec­tion 13 of the Con­sti­tu­tion."

The bill ex­plic­it­ly states at Sec­tion 2 as fol­lows: "This act is in­con­sis­tent with sec­tions 4 and 5 of the Con­sti­tu­tion" which con­firms that it in­fringes fun­da­men­tal hu­man rights and free­doms. Two Sun­days ago, I high­light­ed the fact that T&T is the on­ly coun­try in the Com­mon­wealth Caribbean that has adopt­ed the mod­el of the Cana­di­an Bill of Rights 1960 for its hu­man rights chap­ter in its Con­sti­tu­tion.

This clear­ly sets us apart for the en­act­ment of FAT­CA leg­is­la­tion to com­ply with Unit­ed States law. It must be not­ed that FAT­CA is not a free-stand­ing act, but rather an in­ser­tion in­to the Hir­ing In­cen­tives to Re­store Em­ploy­ment Act (HIRE) (Pub­lic Law 111-147, March 18, 2010).

The over­all ef­fect of non-com­pli­ance by states around the world is that they may be sub­ject to se­vere bank­ing penal­ties. This has been cast in T&T in many ways that range from the com­ments of the for­mer US am­bas­sador to this coun­try pub­licly talk­ing about peo­ple hav­ing "co­coa in the sun" to "what is the op­po­si­tion afraid of".

The Of­fice of the Prime Min­is­ter re­cent­ly threat­ened the pop­u­la­tion with the pos­si­bil­i­ty of eco­nom­ic in­con­ve­nience in their lives if Par­lia­ment does not com­ply with this US law. The OPM alert called for cit­i­zens to con­tact their MPs and tell them to sup­port the leg­is­la­tion.

It is un­for­tu­nate that this twist has oc­curred be­cause cit­i­zens are be­ing asked to sur­ren­der their rights and their sov­er­eign­ty be­cause of the fear of the "Big Stick" of the Unit­ed States. Us­ing the Unit­ed States as a con­ve­nience for car­ry­ing out a lo­cal po­lit­i­cal agen­da is un­fair.

The re­al is­sue that should be probed is that T&T has no guar­an­tee that it will still not be sub­ject to the US "Big Stick" even if it pass­es this law. That is be­cause of the com­plete pro­vi­sions of Sec­tion 13(1) of our Con­sti­tu­tion which say as fol­lows:

"An act to which this sec­tion ap­plies may ex­press­ly de­clare that it shall have ef­fect even though in­con­sis­tent with sec­tions 4 and 5 and, if any such act does so de­clare, it shall have ef­fect ac­cord­ing­ly un­less the act is shown not to be rea­son­ably jus­ti­fi­able in a so­ci­ety that has a prop­er re­spect for the rights and free­doms of the in­di­vid­ual."

Sec­tion 13(2) makes pro­vi­sion for such a bill to be passed by a three-fifths ma­jor­i­ty in both Hous­es of Par­lia­ment. The bot­tom line here is that even though the pro­posed leg­is­la­tion makes a pub­lic con­fes­sion at the out­set that it is know­ing­ly in­fring­ing your hu­man rights and that in do­ing so, it re­quires a three-fifths ma­jor­i­ty, the re­al­i­ty is that the will of the par­lia­men­tar­i­ans can be over­turned by a judge on the ground that such leg­is­la­tion is deemed to be "not rea­son­ably jus­ti­fi­able in a so­ci­ety that has a prop­er re­spect for the rights and free­doms of the in­di­vid­ual".

What will hap­pen to T&T if its in­de­pen­dent ju­di­cia­ry from the High Court to the Privy Coun­cil were to over­turn the FAT­CA leg­is­la­tion that is cur­rent­ly be­fore the Par­lia­ment?

Are we go­ing to bul­ly our ju­di­cia­ry and tell them to just by­pass the hu­man rights im­pli­ca­tions in the same way as par­lia­men­tar­i­ans are be­ing told to "just pass the dam bill"? As I have said be­fore, there is an amaz­ing lack of crit­i­cal think­ing on the im­pli­ca­tions of FAT­CA for T&T and the ap­proach that is be­ing adopt­ed is that we have to live in fear of the Amer­i­can "Big Stick". Why ?

While the po­lit­i­cal changes are tak­ing place in Wash­ing­ton, DC, T&T does not have to go off to the races to com­plete this FAT­CA bill be­cause the di­rec­tive of the Oba­ma Trea­sury De­part­ment may not be the same di­rec­tive to be ap­plied by the Trump Trea­sury De­part­ment. We should demon­strate some po­lit­i­cal aware­ness be­fore we sur­ren­der a part of our na­tion­al sov­er­eign­ty to the Unit­ed States.

The nom­i­nee for the po­si­tion of sec­re­tary of the Trea­sury in the Trump ad­min­is­tra­tion, Steve Mnuchin, has had his nom­i­na­tion ad­vanced out of the Sen­ate Fi­nance Com­mit­tee to the floor of the Sen­ate for a vote very soon. The nom­i­nee for the po­si­tion of di­rec­tor of the Of­fice of Man­age­ment and Bud­get is fol­low­ing close­ly be­hind him. These two nom­i­na­tions are like­ly to be ap­proved short­ly by the Sen­ate. Can we wait just a bit longer to know whether en­force­ment (as op­posed to re­peal) will or will not be on the cards for FAT­CA from the US end?