Wednesday, February 21, 2018



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The ecstatic reception given to President Anthony Carmona's inaugural address reminded me a little of the reception given to Barack Obama during his first inaugural address.

We had Obamania and we now have Carmomania. The speech brought joy to the faces of many.

Much was said aloud, and much pianismo. A new era was in fact being promised.

The President was radical and scathing in his analysis of the state, the society, and the leadership class.

My own reaction to the event was very mixed. I liked much of what the President said, but worried about their constitutional implications.

The public's reaction to the speech indicated quite clearly that there was widespread thirsting for a renewal of the moral and spiritual values enshrined in our Constitution.

One was clearly tired of the carnage that bloodies our urban-village landscapes each and every day, and also of all the allegations about corruption that too often sour our mood. The question, however, is what can the new President do to renew and restore the national spirit? How many and what kind of "battalions" does he have?

The President's statement that he has more power than people assume seems to have been a pointed reply to my contention that he had little real sustainable power. (See my "A Bifurcated Executive," Sunday Express February 10, 2013).

What we seem to have in terms of the law is diversification in the executive branch with two unequal officials sharing certain defined elements of power, some "hard" and some "soft".

The President understands the difference very well. As he told the crowd who loved it, "powers you think I have, I do not; powers you think I do not have, I do".

As he said further: "I do not have a magic wand, but the office of the presidency is not impotent. I do have constitutional clout."

It was a strange thing for him to emphasise in an inauguration address. Why did he choose to pick an institutional "fight" so early in his presidency? To whom was the message being sent? What constitutional powers does the new President have?

In terms of "hard" power, he has the power to appoint a significant number of important office holders after consultation with the Prime Minister and the Leader of the Opposition. What however constitutes consultation?

He however has the last word and not the Prime Minister as was the case before 1976. This is an important power resource.

The nine "independent" senators are however a different matter.

They are independent only in the sense that they are not the nominees of either the Prime Minister or the Leader of the Opposition.

I have argued elsewhere that the nine senators chosen by presidential fiat are or should be spokespersons for the vested interests and are not to be regarded as presidential patronage.

This element of pluralism was deliberately built into the 1962 Constitution.

The nine are accountable to the groups which suggested them to the President. No doubt, presidents have acted differently and have done otherwise, but what I am saying here reflects my understanding of the spirit of the Constitution.

The nine do not constitute members of a presidential party.

The President is not their leader.

They are nine individuals who speak and vote as their consciences and interests dictate. President Carmona has also made reference to Section 81 which prescribes that "the Prime Minister shall keep the President fully informed concerning the general conduct of the government...and shall furnish the President with such information as he may request with respect to any particular matter relating to the Government of T&T". It seems clear that the President is going to try and use this section of the Constitution as a power reservoir in his dealings with the other part of the executive branch.

I assume that there are conventions and a practice about what information is shared and used, but in the final analysis, it depends on the personalities involved. Ellis Clarke, Arthur NR Robinson, Noor Hassanali, and Max Richards used the section differently.

The question then is, what does the President do with the information or understanding that he gleans from the Prime Minister?

Can he use that information to put either the Prime Minister or leader of the Opposition at a disadvantage. We recall the way Robinson and Panday squared off before, and the way Robinson used the power to delay or checkmate Panday.

I can see a great deal of controversy surrounding the use of this provision as there was in the recent case of Section 34. An activist President can institute a "coup" without a "shot" being fired.

The Prime Minister has said that she is sure that as a lawyer, the President understands the rules of the game, but she must be wondering whether she may have found herself unwittingly blindsided by the President. Occupants of institutions always try to give themselves room to expand their functions.

Judges and politicians do not always see eye to eye on what is "real" and what ought to be.

The one talks of "power" while the other talks of "powers".

Will Carmona act like a "judge" or as a "politician"? Whose man will he be when the political jostling starts and he has to make choices that affect the parties differently?

What can he do to fulfill his reform manifesto and agenda?

What is the source of the "clout" or "soft" power that he says he has? What is the basis of his mandate? It seems to us that all he can really do when the chips are down is use his office as a populist pastor would a "bully pulpit", exhorting office holders and civil society groups to do A or B.

He can focus public attention on problems such as crime and restorative justice. Like Queen Victoria, he can "advise and warn, but not dictate". Beyond that, there is little that he can do within the four corners of the Constitution.

He can of course step out of the box or the Westminster paradigm, but overuse of these excursions into the power basket will pose problems for him, power brokers and future incumbents. We note that power is not a static commodity from which one steals a piece of fire to get or prevent something from happening.

Will the President be able to enhance his quest for power to do the things he wishes to achieve without alienating those on whom he must depend to get things done?

The President wants, inter alia, to give new life to our national watchwords which have become shopworn and tattered. He also wants to continue the work which he began as a judge of the High Court in respect of bail for young offenders.

Let us hope that he succeeds.

Let us give him the support he will no doubt need. Having picked up the ball, he has to continue running with it lest it drops, much to the chagrin of those who now celebrate his enthronement.

We of course know that Obama has had to recognise that there are limits to what executive chiefs can achieve.

What then follows after the hosanas have been sung?