I had not intended to write a third article on governance but in view of the many comments on the recent action of the President of the Republic with respect to the Section 34 issue I am convinced that some discussion on the role of a President in our governance arrangements is needed.
When we became a Republic in 1976 the Governor General (who represented the Queen) was replaced by the President of the Republic. Why did we not just have an elected Prime Minister as Head of State? The presidential office is sometimes referred to as being ceremonial. Why could not the Prime Minister (with a deputy, if necessary) perform all ceremonial duties? Clearly there is more to this office. In my view the position was retained to provide some measure of safeguard to the possible misuse of power by a Prime Minister and/or a Cabinet. The need was recognised for independent bodies and the system whereby such bodies were to be appointed by an independent Head of State was included in our Constitution.
There are some duties which the President must perform on the advice of the Prime Minister and on which he/she has no discretion of his/her own. But the fact that such items have to pass through the President indicates to me that he/she must at least be required to raise questions when necessary (no doubt under confidential cover if appropriate). It would be a waste of time and resources for a President to be a rubber stamp.
There are some functions which the President must perform entirely on his/her own discretion, such as the appointment of "Independent" Senators. I have written in the past on the usefulness of Independent Senators and shall quote from those articles before proceeding further on discussion of the role of the President. It should be noted that a vote by Independent Senators may stop a bill from being passed. A unanimous vote by Opposition and Independent Senators (15 in number) against a bill supported by all 15 Government Senators can result in rejection of the bill, since in practice (if not in law) the President of the Senate (normally a Government Senator) votes to maintain the status quo. However since the Senate has only delaying powers (for six months) the will of the elected representatives can prevail.
I quote from a previous article on the role of Independent Senators:
"It is not correct to state that the votes of Independent Senators are inconsequential. Further since Government and Opposition spend much time in debates criticizing each other the attention of the Independent Senators to details of the bills under consideration are often critical for the passage of good legislation.
Much depends on the way in which a President of the Republic exercises his discretion in selecting Independent Senators (as with appointing members of the Integrity Commission) and there can be little control over this. Perhaps the time has come that there needs to be discussion on other systems which might be used to select Independent Senators, but I am convinced that there is a useful and important role to be played by some such category in Parliament".
In the light of the foregoing I shall discuss the comments on recent actions of the President of the Republic. It has been suggested that the President has no role to play in actions he has to perform under the Constitution on certain issues sent to him in which he has to endorse the decision of Cabinet. It is my view that the Constitution does require some action on his part and that is to ensure that the best interests of the citizens are being served. He must take appropriate action including causing delays, raising queries and, in extreme cases, alerting the public. However this requires that the President must be provided with the (legal) staff (or have the resources to access legal advice) in order to properly carry out his function.
If however he does not in the first instance determine any flaw but subsequently flaws are brought to his attention it is clearly his duty to take appropriate action. To suggest that such action is necessarily politically motivated is, in my view, to be suggesting that the President should fail in his duty to citizens. He must call attention to the problem even if this seems to be action that supports one or other of the political divide. It is also being implied that the method of selecting the President, in which the majority party may have the opportunity to determine the outcome of the election may make him a political being. If this is the case then those who hold this view must suggest an alternative system. In the present arrangements an attempt has been made in this regard by making the election of President be held by secret ballot. In at least one such election the number of votes would suggest that voting was not exclusively by party line.
It is also being suggested that if an acting President has made a certain determination the substantive President must not take his own action. I can see no force in this argument for, as I have stated, I consider that a President could change his own position in the light of new knowledge or of public outcry.
To conclude, new discussions on the Constitution must include consideration on the way the President of the Republic is selected and also that of any office holder who is to act as President (currently the President of the Senate who may be considered a political appointment). In addition consideration must be given to the method of selecting Independent Senators, if it is decided to retain these positions. Also it may be necessary to discuss alternative ways of guarding against abuse of power by Governments and by a President and the possible role of the Judiciary.
I send greetings to all citizens for the Christmas season.
óJohn Spence is professor emeritus, UWI. He also served as an independent senator.