Dr Win­ford James

Max Al­bert and I con­tin­ue our dis­cus­sions on the To­ba­go Au­ton­o­my Ques­tion.

The PM’s pro­pos­al to guar­an­tee To­ba­go two seats in the Sen­ate is an at­trac­tive but un­cer­tain one. For too long, To­ba­go’s pres­ence in the Up­per House has de­pend­ed up­on the choic­es of na­tion­al po­lit­i­cal lead­ers or up­on the Pres­i­dent de­cid­ing, in the ex­er­cise of their dis­cre­tion, to ap­point To­bag­o­ni­ans.

A con­sti­tu­tion­al guar­an­tee would re­move that un­cer­tain­ty. But once we start prob­ing it se­ri­ous­ly, dif­fi­cult ques­tions arise: Who should choose the two sen­a­tors? In whose name would they speak?

The method of se­lec­tion would de­ter­mine whether To­ba­go is mere­ly rep­re­sent­ed by two peo­ple who hap­pen to come from the is­land, or whether To­ba­go, through its own in­sti­tu­tions, is giv­en a voice in the na­tion­al Par­lia­ment. Those are not the same things.

The Sen­ate now con­sists of 31 mem­bers. Six­teen are ap­point­ed on the ad­vice of the Prime Min­is­ter, six on the ad­vice of the Leader of the Op­po­si­tion, and nine on the dis­cre­tion of the Pres­i­dent.

That de­sign was in­tend­ed to give the rul­ing par­ty an au­to­mat­ic ma­jor­i­ty in the Sen­ate. The an­nounced pro­pos­al ap­pears to be that at least two of those nine In­de­pen­dent Sen­a­tors must come from To­ba­go.

The Gov­ern­ment seems to want to re­place (in the Sen­ate) two of the In­de­pen­dent Sen­a­tors with two Sen­a­tors from To­ba­go.

On the face of it, the pro­pos­al is sim­ple. The Sen­ate would re­main at 31 mem­bers and To­ba­go would al­ways have at least two peo­ple in the Pres­i­dent’s ap­point­ments. Yet the sim­plic­i­ty con­ceals a con­sti­tu­tion­al dif­fi­cul­ty. The Pres­i­dent would still de­cide which To­bag­o­ni­ans are ap­point­ed. To­ba­go’s elect­ed As­sem­bly, its Ex­ec­u­tive, and its peo­ple might have no for­mal part in that de­ci­sion.

The two ap­pointees might be high­ly re­spect­ed To­bag­o­ni­ans, but re­spectabil­i­ty and To­ba­go birth do not by them­selves qual­i­fy a per­son to be the con­sti­tu­tion­al voice of To­ba­go.

There is al­so the mat­ter of pres­i­den­tial dis­cre­tion. We do not ar­gue that the Pres­i­dent’s dis­cre­tion can nev­er be lim­it­ed. Con­sti­tu­tions fre­quent­ly pre­scribe qual­i­fi­ca­tions and re­quire in­sti­tu­tions to re­flect par­tic­u­lar in­ter­ests.

To­ba­go is not sim­ply an­oth­er pres­sure group seek­ing a place along­side labour, busi­ness, re­li­gion or the pro­fes­sions. It is one of the two con­stituent is­lands of the State, with its own his­to­ry, elec­torate, and House of As­sem­bly.

A ter­ri­to­r­i­al guar­an­tee is there­fore de­fen­si­ble. Our con­cern is whether the Pres­i­dent’s In­de­pen­dent Bench is the cor­rect place to lo­cate that guar­an­tee.

If two of the nine in­de­pen­dent ap­point­ments must al­ways be filled from To­ba­go, then more than one fifth of the Pres­i­dent’s dis­cre­tionary choic­es would be set­tled by ge­og­ra­phy. On­ly sev­en seats would re­main through which the Pres­i­dent could try to re­flect the coun­try’s many sec­tors and fields of en­deav­our. That may be a price worth pay­ing, but it should not be im­posed with­out ex­am­in­ing whether there is a clean­er way to se­cure To­ba­go’s rep­re­sen­ta­tion.

The gov­ern­ing par­ty in the To­ba­go House of As­sem­bly has an ob­vi­ous claim to par­tic­i­pate in the se­lec­tion.

It car­ries the cur­rent elec­toral man­date of To­ba­go and is an­swer­able to To­ba­go’s vot­ers. Sen­a­tors cho­sen through the As­sem­bly would there­fore pos­sess a de­mo­c­ra­t­ic le­git­i­ma­cy that pres­i­den­tial ap­pointees might not have.

They could speak with knowl­edge of the As­sem­bly’s poli­cies, To­ba­go’s de­vel­op­ment needs, and the is­land’s po­si­tion on au­ton­o­my.

But the mo­ment the gov­ern­ing par­ty choos­es the Sen­a­tors, an­oth­er prob­lem would present it­self. They could no longer be de­scribed con­vinc­ing­ly as In­de­pen­dent Sen­a­tors. Their au­thor­i­ty would arise from a po­lit­i­cal ma­jor­i­ty, and they would rea­son­ably be ex­pect­ed to ad­vance the pro­gramme of the To­ba­go ad­min­is­tra­tion that nom­i­nat­ed them.

There is noth­ing in­her­ent­ly wrong with that. What would be wrong is to place po­lit­i­cal nom­i­nees on the In­de­pen­dent Bench and pre­tend that their con­sti­tu­tion­al char­ac­ter had not changed.

The dis­tinc­tion should be faced plain­ly. An in­de­pen­dent To­bag­on­ian is not nec­es­sar­i­ly a rep­re­sen­ta­tive of To­ba­go.

In the same way, a rep­re­sen­ta­tive of To­ba­go is not nec­es­sar­i­ly in­de­pen­dent. The con­sti­tu­tion­al arrange­ment ought to say which of those two things it is try­ing to cre­ate.

There is a fur­ther risk. The par­ty gov­ern­ing the As­sem­bly may al­so be al­lied with the par­ty gov­ern­ing the coun­try. If its nom­i­nees are count­ed among the In­de­pen­dent Sen­a­tors, the Cen­tral Gov­ern­ment’s prac­ti­cal strength in the Sen­ate could be in­creased while the for­mal num­bers re­main un­changed.

That would al­ter the bal­ance among Gov­ern­ment, Op­po­si­tion, and In­de­pen­dent Sen­a­tors with­out ad­mit­ting that it had.

To our mind, the more hon­est arrange­ment would be to cre­ate two seats specif­i­cal­ly des­ig­nat­ed for the two To­ba­go Sen­a­tors. They should not be carved out of the Pres­i­dent’s nine in­de­pen­dent ap­point­ments.

The Sen­ate would in­stead con­sist of six­teen Gov­ern­ment Sen­a­tors, six Op­po­si­tion Sen­a­tors, nine In­de­pen­dent Sen­a­tors, and two To­ba­go Sen­a­tors, mak­ing it thir­ty-three mem­bers in all.

But since the Gov­ern­ment would lose its ma­jor­i­ty of one to the non-Gov­ern­ment Sen­a­tors (9+6+2>17), to re­dress the bal­ance, the Gov­ern­ment would need to cre­ate an ad­di­tion­al two Gov­ern­ment seats (16+2>18).

The Pres­i­dent could make the for­mal ap­point­ments on the ad­vice of the To­ba­go House of As­sem­bly, com­mu­ni­cat­ed by a res­o­lu­tion of the As­sem­bly. That would pre­serve the con­sti­tu­tion­al form of pres­i­den­tial ap­point­ment while plac­ing the pow­er of rec­om­men­da­tion where it prop­er­ly be­longs: in To­ba­go’s elect­ed in­sti­tu­tion.

The two mem­bers would en­ter the Sen­ate open­ly as rep­re­sen­ta­tives of To­ba­go, not as sup­posed in­de­pen­dents whose ap­point­ments had been shaped by a po­lit­i­cal process.

A start­ing pro­vi­sion might be­gin in the fol­low­ing terms:

Two Sen­a­tors shall be ap­point­ed by the Pres­i­dent on the ad­vice of the To­ba­go House of As­sem­bly, com­mu­ni­cat­ed by res­o­lu­tion of the As­sem­bly, to rep­re­sent the in­ter­ests of To­ba­go in the Par­lia­ment of Trinidad and To­ba­go.

Dr Win­ford James is a re­tired UWI lec­tur­er who has been analysing is­sues in ed­u­ca­tion, lan­guage, de­vel­op­ment and pol­i­tics in T&T and the wider Caribbean on ra­dio and TV since the 1970s. He has al­so writ­ten thou­sands of columns for all ma­jor news­pa­pers in the coun­try.