Two curious provisions, found in the laws on Industrial and
intellectual properties passed in July, 1996 by both houses of
parliament and assented to by the President, are
unconstitutional. It is legally impermissible for Parliament (
which is made up of the executive comprising of the UNC- NAR
coalition Government of National Unity, along with the PNM in
opposition and the independents ) to legislate away, either the
legislative exclusivity of Parliament which operates under a
supreme constitution, or the sovereignty of Trinidad & Tobago on
any subject matter. There exists a misunderstanding of the
legislative boundaries that apply to Trinidad & Tobago's
parliament and a failure to recognise the legislative impotence
of any treaty to which Trinidad & Tobago is a signatory. There
also appears a misunderstanding of the relationship between
international agreements or treaties to which Trinidad & Tobago
have entered into and the domestic laws which are passed by
parliament pursuant to any such agreements. The laws are not
sufficiently protective of industrial and intellectual
properties. These observations were expressed by Attorney- at Law
Mr Kulraj Kamta who attended the just concluded Industrial
Property seminar hosted by the World Intellectual Property
Organisation and the Ministry of Legal Affairs at the Hilton .

Mr Kamta was commenting on section 23 of the Industrial
Designs Act,1996 and section 19 of the Layout - Designs (
Typographies) of Integrated Circuits Act, 1996 . The former deals
with industrial property whereas the latter deals with
intellectual property. Both provisions are set out in identical
terms for each subject matter. To quote one of the laws, that is,
section 23 the Industrial Designs Act:
" The provisions of any international treaties in respect of
industrial property to which Trinidad & Tobago is a party shall
apply to matters dealt with by this Act and, in case of conflict
with provisions of this Act, shall prevail over the latter."

According to Kamta what the recently passed laws seek to do
is to give statutory force to any international treaties in
respect of industrial and intellectual properties to which
Trinidad & Tobago is or might be a party. The laws even went
further and provided that whenever there is conflict between the
treaties and any local laws the treaty laws shall prevail in
Trinidad & Tobago. Attorney Kamta says it is quite outside the
legislative competence of the parliament to pass any such laws.
In order to give effect to such treaties it is necessary to
recast and enact them on the statute books locally. The laws
really purport to surrender the sovereignty of the state on an
important subject matter. He argued that is surely
unconstitutional, null and void.

Kamta explained that there is a distinction between the
treaty obligations of Trinidad & Tobago and the domestic laws
passed by parliament. Kamta indicated that Treaty obligations are
enforceable under international law whereas laws passed by
parliament are enforceable in Trinidad & Tobago. Trinidad &
Tobago is obligated to observe the articles of a treaty to which
it is a party. That includes, in the case of the Tripps
agreement, which is an international agreement on industrial
property a legal requirement to enact certain laws in Trinidad &
Tobago. That requirement itself, Kamta argues supports his
contention, that it is necessary for parliament to pass domestic
laws in Trinidad & Tobago to give effect to its Treaty
obligations on industrial and intellectual properties. It is a
terrible thing to expects the provisions of Treaties which are
sometimes couched in general and imprecise language to have the
force of law in any country.

Parliament is the exclusive legislative authority that is
authorised by the constitution to make laws for the peace, order
and good government of Trinidad & Tobago . Parliament suffers
certain legislative restrictions . For instance, it cannot
generally abridge any of the fundamental rights of the citizens
and it cannot pass certain laws without a special majority. If it
wishes to transfer its legislative authority outside of Trinidad
& Tobago or to vest law making capacity solely to the executive
authority within the country it must firstly amend sections 53
and 54 of the constitution by a special majority. The executive
arm of Government really negotiates and agrees on any
international agreement or treaty, by whatever nomenclature one
may describe such agreements. Section 53 of the constitution
sets out its supremacy and makes it clear that it is wrong to
pass any law which cloaks, either the executive or any group of
foreign Governments, along with the Executive with potential or
real legislative authority. Even when both houses of parliament,
comprising in part, of the Executive has passed the legislation
mentioned above they are still unconstitutional. It is not a
question of what, either Parliament as a whole, or the Executive
as a component, may desire but it is a matter of the limitations
of Parliamentary powers and authority to dilute its own
legislative exclusivity. Parliament is presumed to know the law.
In so far as parliament has passed the two laws described above
it therefore seeks to impliedly repeal sections 53 and 54 of the
constitution without a special majority. That is a callosal
collision. That is an untenable position. The provisions of the
two acts are unconstitutional.

One needs to understand the legislative machinery set up by
law in Trinidad & Tobago. By section 39 of the constitution the
parliament is made up of the House of Representatives, the Senate
and the President. In other words a law must be passed by both
houses of parliament and whenever that receives the assent of the
President then it can have the force of law. The actual time when
a law is effective may be done by a proclamation by the
President. The bicameral parliament is legally comprised, in the case of the House of Representatives, of all elected members (
except the Speaker who may not be elected a member under the
Representation of the People 's Act ). The Senate is comprised of
all nominated members representing in varying numbers, the
Government and Opposition members, the Independents and the
President of the Senate who may be elected, either from among the
nominated members or from outside. According to the new
industrial laws Parliament expect the executive to negotiate with
other Governments and International Organizations agreements or
treaties on industrial and intellectual properties which will
have the force of law in Trinidad & Tobago without having to pass
the provisions of the treaties by parliament. That is an
untenable expectation as it lacks every constitutional basis.
This does not detract from another valid point that such
agreements will have the force in international law only. When
enacted by parliament each time they would also have the force of
law in Trinidad & Tobago. So that, in so far as the two pieces of
legislation seek to give effect, as statutory law, in Trinidad &
Tobago to any such international agreements present or future, to
which Trinidad & Tobago is a party, they are unconstitutional,
void and of no effect.

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