Friday, February 23, 2018

Election of a T&T President


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As I write this the Electoral College is about to convene to confirm the selection of Justice Anthony Carmona as our next Head of State when current President, Prof George Maxwell Richards, demits office in March this year. President Richards leaves office having served two five-year terms. Although nothing in the Constitution prevents a president from holding office for more than two terms only Sir Ellis Clarke, our first president, has had that distinction.

By now we all know that to qualify to be President a person must not only be at least 35 years of age and a citizen of Trinidad and Tobago but also be "ordinarily resident" for 10 years in this country, immediately preceding nomination. Prior to his nomination a question was asked as to whether Justice Carmona met the requirements of being "ordinarily resident" for 10 years before nomination. In the event, both the Government and Opposition agreed that they were satisfied that he had met the requirements.

The question only arose because it was well known that the judge had taken up a three-year posting to The Hague from 2001 to 2004 as an appeals counsel at the Office of the Prosecutor at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. Justice Carmona returned to Trinidad and Tobago in early 2004 to take up an appointment as a High Court judge in the Supreme Court. This would mean that he was physically resident here for about nine years before his nomination as President.

Ordinarily resident

Being resident, however, is not the same as being "ordinarily" resident. A person may well be resident in another country but remain "ordinarily" resident in their home country. This is particularly true of students, for instance, who attend university abroad, or a professional who works abroad for a while but is still based in his home.

The test is whether the person habitually and normally resides in the particular country by choice and for a settled purpose throughout the prescribed period, except for temporary absences. There is no specific time which could be defined as temporary although, naturally, the longer you are physically absent it will be harder to argue it was "temporary". A person's intention is important in determining whether he is still ordinarily resident in one country when he lives in another: was it his intention to emigrate?

This must be assessed by objective factors. One starts off with the presumption that a citizen who leaves his home country to work abroad for a specified period usually intends to return. If he maintains a home in his country, even if he only uses it for short periods over the year, this is evidence that he is ordinarily resident there. Was the home used by his family? Was there continuity in his connection with the country and was the connection substantive?

From all accounts Justice Carmona maintained a residence in T&T and there was nothing to suggest that in the three years he worked abroad he abandoned T&T as his place of ordinary residence. Add to that the fact that at the end of his contract he returned here and took up permanent employment. It seems certain therefore that Justice Carmona was ordinarily resident in T&T even when he was abroad and resident in The Hague between 2001 and 2004. In any event there are numerous cases which make it clear that a person may be ordinarily resident in more than one country at the same time.

The sole nominee

As the sole nominee for the office of President Justice Carmona, by virtue of Section 31 of the Constitution, is entitled to be declared elected at the sitting of the Electoral College. This College is really the two Houses of Parliament, the Senate and the House of Representatives sitting as one unicameral body. The Speaker convenes the Electoral College as Chairman of the proceedings. As such he determines how the proceedings are to be run, subject to the Constitution. The College must meet between 30 and 60 days before the expiration of the term of office of the sitting President.

Given that there is but one nominee there will be no casting of ballots as has happened in the past, as in 2003 for example, and no counting of votes. The Speaker may simply declare that Justice Carmona will be the next President but since we all like a little ceremony undoubtedly he will make a speech. Thereafter the Speaker will cause to be prepared an instrument which he signs and seals, stating that the person named in the instrument was the only person nominated for election and was in consequence declared elected. If there had been a contest he would have simply stated that the person named was declared elected in consequence of the ballot.

Now all that remains when President Richards on his return from vacation demits office in mid-March is for Justice Carmona to take the oath of office which will be administered by the Chief Justice. That oath of office, though similar to that taken by a minister or judge, is still peculiar to the office of President. The former swears to "uphold the Constitution and the law" and "do right to all manner of people" without "fear or favour, affection or ill will".

The President on the other hand swears to "preserve and defend the Constitution and the law" and to devote himself to "the service and well being of the people of Trinidad and Tobago". These words, if taken literally, highlight important differences in the role of the President, differences which I am sure our President designate has already noted.

* Dana S Seetahal is a former Independent Senator