Saturday, February 24, 2018

Charting a path to the truth


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Jack Warner's condemnation of President Max Richards, referring to him as a puppet of the People's National Movement, is unwarranted. But this kind of indelicate commentary by Mr Warner has become a common occurrence. More recently he was taking offence with the head of the Integrity Commission. Mr Warner sees the PNM behind every shadow. But the President is a vital part of the executive, one who must stand above politics. If there is evidence he is not doing so, the Government should ask him to leave and replace him with someone more to its liking. But there is no such evidence, and the public would not be inclined to go along with this. Max Richards was treated badly under the PNM. His official residence was allowed to fall apart, to the point where it became unlivable. He endured this and has stayed on with this new government, performing the role expected from one in this position.

If we take our cue from the British constitution, which largely informs ours, then like the British monarch, the role of our President is to be consulted, to warn and to encourage. Like the monarch, the President has little practical power, save in exceptional circumstances. But he does have legal and theoretical power exercised mainly through Parliament and through conventions where he is expected to display restraint.

For example, the President has the power to refuse to sign bills sent to him by the Parliament. But he is expected by convention to sign all bills that come his way.

To get a better understanding of the impasse over Section 34, brought about by the President's entry into the fray, we may begin by examining the relevant section of the Constitution to see what it says about the relations between the President and the Prime Minister; and what Section 81 says is: "The Prime Minister shall keep the President fully informed concerning the general conduct of the government of Trinidad and Tobago and shall furnish the President with such information as he may request with respect to any particular matter relating to the government of Trinidad and Tobago."

As we read this language, it seems quite unambiguous—saying the President may make requests of the Prime Minister for information pertaining to governance of the country. The Queen has weekly meetings with the British Prime Minister where she is informed, and can warn or encourage, for what it is worth.

What may be the cause of dispute here is whether this provision is to be taken as a law, or a convention. If Section 81 is to be treated as a law, then the Prime Minister may be taken to court if she ignores the request of the President. If it is treated as a convention, then the Prime Minister could be seen to have broken no law by refusing to comply with the President's request.

Part of the trouble is that the British ex-colonies borrow heavily from English legal logic in framing their constitutions without having the history that underpins English law. Many of the principles of English law derive from practices of times past, when sovereignty resided with the monarch. Many constitutional traditions of English law are in deference to times past, even though it is Parliament and not the monarchy that is the ultimate source of sovereign power.

What we can learn from the British here is to notice that the government affords the monarchy due respect and dignity. At all costs, the Prime Minister and her government should seek to be on good terms with the President. It should be common understanding that neither government minister nor the Prime Minister should publicly rebuke the sitting President.

We also should not be too dismissive of a provision such as Section 81, since under English law, conventions have standing at common law. If the Prime Minister refuses a simple request by the President to provide information he deems to be of relevance to governance of the country, and since a formal complaint by the Leader of the Opposition is the best evidence one can think of that governance is at issue, he could well decide to have the matter taken up in court, to help establish for posterity just what are the practical implications of this section. The British have worked out a procedure for this. And we have to decide what our procedure is or what has been precedence for us. We could benefit from knowing how former presidents Ellis Clarke, Noor Hassanali and ANR Robinson dealt with this clause.

But when the sacrosanct principle of Cabinet confidentiality is broken (by the Prime Minister's public version of Herbert Volney's supposed actions regarding Section 34), and when the Attorney General is basically immunised from culpability in a matter of law-making, then it seems the President should rightly intervene, especially since Mr Volney has a different version of events than does his Cabinet colleagues. We need a way to determine whose version of events is closer to the truth. That is a proper role for the President, in spite of what Jack Warner or others might think.

• Prof Theodore Lewis is currently

enrolled in the University of

London's online Bachelor of Laws

degree programme.