Wednesday, February 21, 2018

The relevance of the Office of President today


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The Prime Minister has said that the Government will announce its nominee for president on Monday February 4. This brings to the fore the question of whether this office as currently constituted has any real relevance to T&T today given the limited power of the President under the Constitution.

The President is chosen following election by the Electoral College. This is a unicameral body consisting of all the members of the Senate and of the House of Representatives. It is convened by the Speaker who presides as Chairman over the electoral proceedings.

Prior to that nominations are made for election at least seven days before and the nomination papers must be signed by at least 12 or more members of the House of Representatives (Section 30 of the Constitution). Since the PNM only has 12 members in the House currently and Mr Manning is on sick leave the question obviously arises whether the Opposition will be in any position to nominate a candidate to oppose the Government's nominee. In any event since it is the candidate who obtains the greatest number of the votes cast who will be declared elected, it stands to reason that if there are two nominees it is the Government's nominee who will be President.

So the Government will have its nominee as President. This has been the position in the last 30-odd years and in the two or three times there has been a contest the government's nominee has prevailed by dint of the sheer greater numbers on the government's side. All of the above having been said what is the importance of this election or this office to the country? Is it relevant to governance in T&T at all?

In order to make such an assessment it is necessary first of all to consider the powers and functions of the President. These are captured primarily in the Constitution. Section 74 provides that the "executive authority" of Trinidad and Tobago is vested in the President to be exercised by him "subject to" the very Constitution. Similarly "supreme command" of the armed forces is vested in the President (not the Minister of National Security).

Such apparent wide authority however is deceptive since the Constitution itself requires the President to act in accordance with the advice of Cabinet or a Minister designated by Cabinet. The word "advice" is euphemistic and is just a polite way of saying "directive" (in much the same way the Queen of England is expected to follow the "humbly" proffered advice of her government). The only exception to this is where the Constitution or some other law requires the President to act (i) in his own discretion (ii) after consultation with any person other than Cabinet or (iii) on the advice of any person other than Cabinet.

The Constitution specifies only one occasion when the President acts fully in his own discretion and that is in the selection of the nine Independent Senators said to be from outstanding persons in the community. Other than that in all other occasions where power appears to be granted to the President to make appointments he is required to consult first before acting.

The President does have power to select the following: members of the Election and Boundaries Commission; the Chief Justice and members of the Judicial and Legal Service Commission; the Ombudsman; the Teaching Service, Public Service and Salary Review Commission. All of these appointments must however be made "after consultation with the Prime Minister and Leader of the Opposition".

It would be interesting to know whether any of our presidents in recent times have acted against the desires of the prime minister of the day. Certainly no president who wants a second five-year term would be bold enough to do so. The last president who we know who did so was Sir Ellis Clarke. It was reported that in the appointment of one Jimmy Bain he picked up the phone and informed the then PM of his decision. He thus considered he had "consulted" and so went ahead to make the appointment.

Certainly President Robinson demonstrated the inclination to play a more active role when he was the sitting president. He emphasised his right under the Westminster system to "delay, warn and advise" the Government on a proposed action, revoke the appointments of two government senators and make certain others. At the end of the day however he had to accede to the wishes of the government.

There is one provision in the Constitution which appears to give the President sole authority albeit only in exceptional circumstances. In respect of the appointment of a prime minister where it appears to the President that "no party commands the support" of the majority of members of the House he may appoint as Prime Minister the member who, in his judgment, is most likely to command the support of the majority of members of that House. This is the section that President Robinson purported to act under in 2002 in the face of an 18-18 tie in the general election.

But even this power is now almost irrelevant with the creation of 41 electoral seats instead of the previous 36. As such there can be no true tie since even if two parties should win 20 seats each the minority party with the one seat can just form a coalition with one or the other and this will command a majority.

This therefore brings us back to the original question is there any real role for the President in T&T in 2013 where we have already been constituted an independent Republic, we have an independent judiciary and where the government by virtue of being the government rules the roost? Are we fooling ourselves in believing that the office of president is ever capable of being independent and able to provide a real interpolation between the government of the day, the Parliament and the people?

* Dana S Seetahal is a former

independent senator