ATTORNEY- PARLIAMENT LACKS POWER

TO PASS INDUSTRIAL PROPERTY LAWS UNDER WIPO.



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.