Pro­fes­sor Hamid Ghany

The an­nounce­ment by the Prime Min­is­ter last Tues­day that her Gov­ern­ment in­tends to bring to Par­lia­ment a con­sti­tu­tion­al amend­ment to guar­an­tee To­ba­go two Sen­ate seats from among the nine in­de­pen­dent sen­a­tors ap­point­ed in the dis­cre­tion of the Pres­i­dent is a wel­come de­vel­op­ment.

Ac­cord­ing to her, To­ba­go has had two guar­an­teed seats in the House of Rep­re­sen­ta­tives since in­de­pen­dence.

The Con­sti­tu­tion makes pro­vi­sion for that at sec­tion 70(2) as fol­lows:

“(2) Not less than two such con­stituen­cies shall be in the Is­land of To­ba­go.”

What has re­mained a glar­ing over­sight in re­la­tion to the rep­re­sen­ta­tion of the is­land of To­ba­go in the na­tion­al Par­lia­ment is the ab­sence of any spe­cif­ic To­ba­go cat­e­go­ry of mem­ber­ship in the Sen­ate.

There is cur­rent­ly no re­quire­ment for the Pres­i­dent to se­lect any Sen­a­tors from To­ba­go with­in the word­ing of sec­tion 40(2)(c) of the Con­sti­tu­tion, which reads as fol­lows:

“(c) nine shall be ap­point­ed by the Pres­i­dent in his dis­cre­tion from out­stand­ing per­sons from eco­nom­ic or so­cial or com­mu­ni­ty or­gan­i­sa­tions and oth­er ma­jor fields of en­deav­our.”

There is no oblig­a­tion im­posed on the Pres­i­dent to specif­i­cal­ly make any ap­point­ment of any­one from To­ba­go to the pres­i­den­tial bench in the Sen­ate that falls with­in the dis­cre­tion of the Pres­i­dent.

In oth­er words, if any­one from To­ba­go is now ap­point­ed to the Sen­ate among the in­de­pen­dent sen­a­tors that is a mat­ter for pres­i­den­tial dis­cre­tion.

Un­der the in­de­pen­dence con­sti­tu­tion be­tween 1962 and 1976, the Prime Min­is­ter de­ter­mined in­de­pen­dent sen­a­tors us­ing the fol­low­ing for­mu­la in sec­tion 23(2)(c) of that con­sti­tu­tion, as fol­lows:

“(c) sev­en shall be ap­point­ed by the Gov­er­nor-Gen­er­al act­ing in ac­cor­dance with the ad­vice of the Prime Min­is­ter af­ter the Prime Min­is­ter has con­sult­ed those re­li­gious, eco­nom­ic or so­cial bod­ies or as­so­ci­a­tions from which the Prime Min­is­ter con­sid­ers that such Sen­a­tors should be se­lect­ed.”

There was no spe­cif­ic con­sid­er­a­tion for To­ba­go un­der this for­mu­la un­less the Prime Min­is­ter felt that there were “re­li­gious, eco­nom­ic or so­cial bod­ies or as­so­ci­a­tions” from which the Prime Min­is­ter con­sid­ered that such sen­a­tors should have been se­lect­ed from To­ba­go.

When the re­pub­li­can con­sti­tu­tion was draft­ed in 1976, there was still no spe­cif­ic for­mu­la for To­ba­go to be guar­an­teed any sen­a­tors on the in­de­pen­dent bench.

The Pres­i­dent was giv­en the au­thor­i­ty to ap­point “out­stand­ing per­sons from eco­nom­ic or so­cial or com­mu­ni­ty or­gan­i­sa­tions and oth­er ma­jor fields of en­deav­our.”

So the con­ver­sion in 1976 moved the au­thor­i­ty away from the Prime Min­is­ter de­ter­min­ing in­de­pen­dent sen­a­tors to the Pres­i­dent mak­ing those choic­es in her dis­cre­tion us­ing slight­ly dif­fer­ent cri­te­ria.

Over the years, there have been some Pres­i­dents who did not make any in­de­pen­dent sen­a­to­r­i­al ap­point­ments from To­ba­go. Yet that is­sue has nev­er been re­solved.

There will al­so have to be an amend­ment to the pro­vi­sions for the ap­point­ment of tem­po­rary sen­a­tors in sec­tion 44(4) of the Con­sti­tu­tion.

Based on the pro­vi­sions of sec­tion 54(3)(b) of the Con­sti­tu­tion, the Bill for such an Act to amend the Con­sti­tu­tion to give ef­fect to the amend­ment to sub­sec­tion 40(2)(c) will re­quire a three-fourths ma­jor­i­ty in the House of Rep­re­sen­ta­tives and a two-thirds ma­jor­i­ty in the Sen­ate, while the amend­ment to sub­sec­tion 44(4) will on­ly re­quire a sim­ple ma­jor­i­ty.

Both the UNC and the PNM will have to col­lab­o­rate with each oth­er to make this hap­pen in the House of Rep­re­sen­ta­tives. In the Sen­ate, Op­po­si­tion and/or In­de­pen­dent Sen­a­tors will have to take a po­si­tion de­pend­ing up­on how the de­bate goes.

There is re­gion­al prece­dent for such spe­cial sub-re­gion­al arrange­ments with­in na­tion­al bound­aries to ad­dress the spe­cif­ic sen­a­to­r­i­al rep­re­sen­ta­tion needs of an­oth­er is­land with­in the bor­ders of a twin-is­land na­tion-state.

Such pro­vi­sions are made in the Con­sti­tu­tion of An­tigua and Bar­bu­da (The An­tigua and Bar­bu­da Con­sti­tu­tion Or­der 1981, SI 1981 / No. 1106, Sched­ule 1 to the Or­der) in re­spect of the rep­re­sen­ta­tion of the is­land of Bar­bu­da in the Sen­ate of An­tigua and Bar­bu­da. Ac­cord­ing to sub-sec­tions 28(5) and (6) of their con­sti­tu­tion:

“(5) One Sen­a­tor shall be ap­point­ed by the Gov­er­nor-Gen­er­al act­ing in ac­cor­dance with the ad­vice of the Bar­bu­da Coun­cil.

(6) One Sen­a­tor, be­ing an in­hab­i­tant of Bar­bu­da, shall be ap­point­ed by the Gov­er­nor-Gen­er­al in ac­cor­dance with the ad­vice of the Prime Min­is­ter.”

The recog­ni­tion of the is­land of Bar­bu­da with­in the Par­lia­ment of An­tigua and Bar­bu­da brings both the Prime Min­is­ter and the Bar­bu­da Is­land Coun­cil in­to the pic­ture. Prime Min­is­ter Kam­la Per­sad-Bisses­sar did not ad­vo­cate any pow­ers for her­self, but rather was ad­vo­cat­ing for To­ba­go to get two guar­an­teed sen­a­to­r­i­al seats away from the na­tion­al po­lit­i­cal di­rec­torate of the PM and Op­po­si­tion Leader.

Just like the new air­port ter­mi­nal in To­ba­go, there was a joint ef­fort to make it hap­pen. Per­haps that ap­proach might be adopt­ed to make this pro­pos­al hap­pen for To­ba­go.

Pro­fes­sor Hamid Ghany is Pro­fes­sor of Con­sti­tu­tion­al Af­fairs and Par­lia­men­tary Stud­ies at The Uni­ver­si­ty of the West In­dies (UWI). He was al­so ap­point­ed an Hon­orary Pro­fes­sor of The UWI up­on his re­tire­ment in Oc­to­ber 2021. He con­tin­ues his re­search and pub­li­ca­tions and al­so does some teach­ing at The UWI. He was se­lect­ed by the THA to guide the dis­cus­sions on To­ba­go au­ton­o­my.