Article 49 – The Tobago House of Assembly – A State of Independent Dependency?

_{The Tobago House of Assembly – A State of Independent Dependency?}

By: Mr. Martin George
Attorney-at-law
Martin Anthony George & Co.
Attorneys-at-law

_{(Research Assistance provided by
Darrell Bartholomew, Attorney at Law)}

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INTRODUCTION

The Tobago House of Assembly (THA) is the administrative body responsible for the management of the affairs of the island of Tobago. The THA can be thought of as akin to the local

government bodies in the sister island of Trinidad such as the city, borough and regional corporations. The THA in its current format was established by the Tobago House of Assembly Act Chapter 25:03 (Act 40 of 1996), and in its preamble, the Act sets out as its purpose, inter alia, as being an Act “to provide for the membership, powers and functions of the Tobago House of Assembly and its Executive Council”.

The THA is made up of two arms, a legislative arm and an executive arm. The legislative arm functions as a legislature of sorts, though typically the end result is that policies with respect to Tobago are discussed, debated and developed, and any regulations which are made by the Assembly legislature is normally limited to the functioning of the Tobago House of Assembly. The Assembly legislature has absolutely no power or authority to make National Laws, even in relation to Tobago. It currently consists of a Presiding Officer, fifteen (15) elected Assemblymen and four (4) appointed Councillors. The executive arm is headed by the Chief Secretary and those Secretaries which are members of the Executive Council, and they are charged with carrying out the THA’s mandate through its Divisions, of which there are presently nine (9), each of which is headed by a Secretary, inclusive of the Office of the Chief Secretary.

The THA, while seeking to be or to become a truly independent body over the years, is really in a state of independent dependency. with a slew of areas of responsibility set out in its Fifth Schedule as areas under the exclusive control of the THA, however this control and authority is actually ringfenced and surrounded with Central Government guardrails so much so, that it is really just an illusion of Independence. Undoubtedly, this has in the past led to clashes between the THA and the Central Government, with the most recent instance being that of the THA’s proposed construction of the Shirvan/Store Bay Local Connector Road, in which the EMA has intervened and said to the THA, you can’t do so without first applying to us and obtaining our permissions. It is a matter which at this time is engaging the attention of our local courts, resulting in yet another chapter being written in the ongoing book of discourse on the THA’s independence or lack thereof.

LAW     

Section 25 of the THA Act sets out the functions of the THA and provides as follows:

“25. (1) Without prejudice to section 75(1) of the Constitution, the Assembly shall, in relation to Tobago, be responsible for the formulation and implementation of policy in respect of the matters set out in the Fifth Schedule.

(2) For the better performance of its functions, the Assembly is hereby empowered to do all such acts and take all such steps as may be necessary for, or incidental to the exercise of its powers or for the discharge of its duties and in particular the Assembly may –

(a) devise mechanisms to ensure the protection and security of property, buildings, or other assets under its control;

(b) enter into such contracts as it deems fit for the efficient discharge of its functions;

(c) obtain from international donors any grant, aid or technical assistance.

(3) Where a statutory authority or a State enterprise provides services in Tobago, that authority or enterprise shall, in exercising its duties in relation to those services, act in accordance with the policies or programmes of the Assembly and to this end may enter into a Memorandum of Understanding with the Assembly.”

Areas of responsibility of the Assembly according to the Fifth Schedule of the THA Act

1. Finance, that is to say the collection of revenue and the meeting of expenditure incurred in the carrying out of the functions of the Assembly;
2. State Lands;
3. Land and marine parks;
4. Museums, archives, historical sites and historical buildings;
5. Public buildings and the maintenance of the residences of the President and the Prime Minister;
6. Tourism;
7. Sports;
8. Culture and the Arts;
9. Community Development;
10. Co-operatives;
11. Agriculture;
12. Fisheries;
13. Food Production;
14. Forestry;
15. Town and Country Planning;
16. Infrastructure, including air and sea transportation, wharves and airports and public utilities;
17. Telecommunications;
18. Highways and roads;
19. Industrial development;
20. The Environment;
21. Customs and Excise;
22. Licensing;
23. Health Services;
24. Library Services;
25. Education including Curriculum;
26. Social Welfare;
27. Marketing;
28. Valuations;
29. Postal services and collection of revenue therefrom;
30. Statistics and Information;
31. Housing;
32. Plant and Animal Quarantine;
33. Such other matters as the President may, by Order, assign to the Assembly.

Matters for which the Assembly shall not be responsible according to the Sixth Schedule of the THA Act

1. The President;
2. National Security;
3. Foreign Affairs;
4. Civil Aviation;
5. Meteorology;
6. Immigration;
7. Legal Affairs including the registration of legal documents;
8. Judiciary;
9. Auditor General;
10. Ombudsman;
11. Service Commissions.

For completeness, the relevant part of Section 75 of the Constitution of the Republic of Trinidad and Tobago states:

“75. (1) There shall be a Cabinet for Trinidad and Tobago which shall have the general direction and control of the government of Trinidad and Tobago and shall be collectively responsible therefor to Parliament.”

THE RELATIONSHIP BETWEEN THE THA AND THE CENTRAL GOVERNMENT

As mentioned briefly above, there is an ongoing matter between the Environmental Management Authority (EMA) and the THA, with respect to the construction by the THA of a road in Tobago. On or around 8^th May of this year, the THA began a project to construct the Shirvan/Store Bay Local Connector Road. Shortly thereafter, the EMA filed proceedings against the THA in the High Court, and was able to obtain an injunction against the THA in relation to the road development project, forcing the project to be halted. The EMA put forward as its major argument that the THA had not obtained the requisite statutory approvals from the EMA in the form of a Certificate of Environmental Clearance (CEC), with the EMA going as far as to assert that the THA had not even submitted an application to the EMA for a CEC. The THA had apparently embarked on the project, thinking it was not subject to the dictates on the EMA in this regard.

The Water and Sewerage Authority’s (WASA) pipe-laying project from Signal Hill to Crown Point has also attracted multiple instances of controversy.  Minister Gonzales accused the THA of taking affirmative steps to put a stop to the project due to “petty politics and foolishness”. It appeared that Officers of the Trinidad and Tobago Police Service (TTPS) went to the site of the pipe-laying project and instructed WASA’s contractor remove their equipment and tools from the road, citing the recent injunction which had been ordered against the THA in the matter between them and the EMA. However, when certain checks were made with the Assistant Commissioner of Police for Tobago, Mr. Collis Hazel, the ACP indicated that he gave no such instructions, and that he was unaware that his Officers had engaged in such action. The allegation of attempting to undermine the project was refuted by the Secretary of Infrastructure Quarries and Urban Development, Mr. Trevor James, who instead stated that all that his Division had done was to write to WASA asking for work to be paused until the matter with the EMA had come to an end. After yet another public spat, the work on the project eventually resumed and is still ongoing.     

In May of this year, Mr. Trevor James lamented the fact that Studley Park Enterprises Limited (SPEL), which operates the Studley Park quarry, had not been issued a blasting permit and a mining licence by the Ministry of Energy, both of which are required for its continued operations. Mr. James levelled accusations against the Central Government and asserted that they were trying to hinder Tobago’s development. Issue was also taken with the audit for SPEL to pay royalties to the Ministry of Energy for mining at the quarry, and Section 54 of the THA Act, which had the effect of vesting in the THA all of the lands in Tobago which were previously vested in the State, was relied on as the basis for asserting that the mineral rights of the lands in Tobago are vested in the THA (and not the Central Government).

In April of this year, Tobago’s roads were filled with scores of Licensing Officers attached to the Licensing Division, who, for a period of approximately one (1) week, conducted various road traffic exercises where drivers were issued with fixed penalty notices and demerit points for a variety of what were deemed to be infractions by the Officers. Both the Chief Secretary of the THA, Mr. Farley Chavez Augustine, and Mr. Trevor James, complained to the media about the manner and implementation of these road traffic exercises, particularly as it was Tobago’s peak season for tourism, and some of the offences that drivers were being charged with were seen as being relatively minor and trivial. Mr. Trevor James even wrote to the Minister of Works and Transport, Mr Rohan Sinanan, citing a lack of collaboration between the Licensing Division as an agent of Central Government and the THA and even going as far as to suggest that the Minister had been discourteous by not informing him about the Licensing Division’s intention to conduct such an extensive exercise in Tobago. This inability to co-operate on the issue of Licensing raises an interesting conundrum as Licensing is one of the areas for which the THA is responsible for pursuant to the Fifth Schedule of the Act, and as such it begs the question of whether or not in practice the THA really is responsible for Licensing, or whether the contents of the Fifth Schedule which suggest autonomy in certain areas for Tobago and Tobagonians are but a mere façade. 

In 2013, a very interesting standoff took place between the THA and the State over the true construction and meaning of Section 25 of the THA Act, and this led to the THA filing proceedings in the High Court (CV 2013-00153 Tobago House of Assembly v The Attorney General of Trinidad and Tobago), with the THA alleging that the Government had by-passed it and had failed to collaborate with it on issues arising from matters in the Fifth Schedule of the THA Act. When the Court was asked to interpret the true meaning of Section 25 of the THA Act in relation to Section 75 of the Constitution, the Honourable Justice Nadia Kangaloo decided that:

1. Section 25(1) of the THA Act in its plain and ordinary meaning means that any responsibility given to the THA pursuant to Section 25(1) must be subject to the overriding and overarching national policy directives of the Cabinet of Government of the Republic of Trinidad and Tobago.
2. Section 25(1) of the THA Act gives the THA responsibility to implement policies that are consistent with that of the Government in instances where the Government already has a policy in place.
3. Section 25(1) of the THA Act does not give the THA responsibility to formulate and/or implement policy in respect of matters set out in the Fifth Schedule to the THA Act which may frustrate or hamper the implementation of Government policy.

The above case settled the legal position by making it clear that the THA is “Independent” only insofar as the Central Government’s leash gives it room to run and the Central government can pull in that leash at any time and bring the THA to heel. The Chief Secretary has recently suggested that the law as it stands, should be amended to better reflect the desire of Tobago to move towards internal self-government, even referring to the current arrangements as “constitutional colonisation”. The Chief Secretary also reiterated that notwithstanding the areas of responsibility of the THA as set out in the Fifth Schedule of the THA Act, the Central Government has the ability to veto and override any exercise of the THA’s authority pursuant to the Fifth Schedule and that is indeed the case so it’s really an illusion of independence which the THA has vis-à-vis the Central Government and it is in reality an “Independent Dependency”.

_{Article 49 – The Tobago House of Assembly – A State of Independent Dependency?}

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