Sunday, February 25, 2018

Section 34's assent

The proclamation of Section 34 of the Administration of Justice (Indictable Offences) Bill 1911 has been one of the most controversial pieces of legislation since the Public Order Bill was introduced in the House of Representatives in 1970 and withdrawn as a result of public opposition to it.

The Administration of Justice (Indictable Offices) Bill 2011 on the other hand was passed by Parliament but only Section 34 thereof was proclaimed which, however, was subsequently revoked by Parliament as a consequence of questions raised by the Opposition and civic bodies as to the motive and the facts and circumstances that precipitated its proclamation.

However, notwithstanding the revocation of Section 34, the Opposition and the civic bodies have called on the President to invoke the provisions of Section 81 of the Constitution which empowers him to call on the Prime Minister to provide him with such information as he may request with respect to any particular matter relating to the government of Trinidad and Tobago. While it would appear that the President has invoked his powers under the section it is not clear what information has been requested in connection with the issue.

According to Section 61 of the Constitution the power of Parliament to make laws shall, except where otherwise authorised by statute, be exercised by bills passed by the House of Representatives and the Senate and assented to by the President. The section further provides that when a bill is presented to the President for his assent "he shall signify that he assents or that he withholds his assent". This section therefore confers on the President a power and discretion to assent or not to assent to a bill and the exercise of that power and discretion are those of the President and his alone and not subject to the direction and/or control of Cabinet or any other person or body. What would appear to be abundantly clear is that Section 34 could not have been proclaimed unless it was assented to by the President.

When Section 34 was presented to the President for his assent it was open to him to either assent or withhold his assent to it or return it to Cabinet for its reconsideration with such amendments as he may have recommended or to provide him with such further information as he may have required.

Some would seem to hold the view that when the President assents to a bill he does so under the advice and direction of Cabinet while others hold the contrary view. However, for the purposes of removal of this lingering doubt it may be useful to consider the other relevant sections of the Constitution governing the issue.

While Section 80 (1) of the Constitution provides that in the exercise of his functions under the Constitution or any other law the President shall act in accordance with the advice of Cabinet or a Minister acting under the general authority of the Cabinet the section also empowers the President to act in his own deliberate judgment when appointing a PM and the Leader of the Opposition or members of the Public Service Commission and for the performance of such functions he shall not be answerable to any court.

The question therefore, whether the President can invoke the provisions of Section 81 of the Constitution by calling on the PM for information concerning the general conduct of government is clearly not in doubt but whether he can, ex post facto, request further information that led to his assenting to it would not only appear to be contrary but also repugnant to the provisions of Sections 61 since it was clearly within his prerogative to refuse Cabinet's request to assent to Section 34 if he was not satisfied with the reasons proffered. While the controversy over Section 34 has raised issues of some magnitude it has also brought into sharp focus the urgency for constitutional reform.

Although ours is a democracy with a representative system of government in which the plenitude of sovereign power is vested in the people the Constitution provides for the tyranny of the majority over the minority. It makes no provisions for separation of powers, save and except in some limited measures or for the recall of elected representatives. Moreover, there are no established conventions or traditions governing our political system as may be found under the Westminster system of government and voting basically is polarised.

The Constitution is the supreme law of the land and the President and Parliament owe their origin to the Constitution, derive their powers from the Constitution and must act within the Constitution. As a consequence the President, members of Cabinet, members of the House of Representatives and the Senate are enjoined by the Constitution to abide by their oath or affirmation to bear true faith and allegiance to the sovereign people of Trinidad and Tobago and to preserve, defend and uphold the Constitution and the law.

Moreover, they owe to the people a duty to ensure that the affairs of the nation would be administered in the best interest of the people without fear or favour, affection or ill-will. This should clearly be the way forward in the new year.

Martin Daly's column returns next week