Tuesday, January 16, 2018

Who will get Kamla's nod?


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In 2011 the Prime Minister declared Reshmi Ramnarine's short-lived appointment, "a mistake but I will not make another one like that". Now the PM will single-handedly determine the country's next President, the electoral college being a formality. This appointment is not easily reversible, and the PM's past mistakes will underlie distrust and concern as she makes her choice. This is an open invitation to make an even bigger mistake.

Without our reconsideration of the division of power and accountability between the PM and President, the Constitution still holds an unacceptable method for selecting the head of state. Of course this is not unusual amongst leading Commonwealth countries including Australia, Canada, and New Zealand. In all three the governor general is head of state, selected in each case by the prime minister. Canada has an additional absurdity, with its PM filling vacancies in the nine-member supreme court of Canada. This lack of a process is therefore not the making of our current PM, but her previous shortcomings will exacerbate a constitutional absurdity that has become less tolerable with time.

Assuming the headlines are correct, one name will send us back to old debates. The country's Speaker of the House or Representatives, a loser in a few general elections, is amongst those considered. He was first appointed to the Senate in 1990, was one of the country's longest serving senators, and was appointed Speaker in 2010. The Speaker's nomination to the presidency will stir debate on the choice of a several-times general elections loser to the position of head of state. While the nomination will revive past debates on the appointment of losing elections candidates to the positions of Speaker and Senator, it is entirely permissible.

If the Speaker is appointed Head of State, constitutional expert Dr Hamid Ghany is being tipped for the position of Speaker. Dr Ghany has devoted his career to the study of regional constitutions and in the last 15 years has been a leader on local constitutional reform. Part of Dr Ghany's work has been a more acceptable appointment process for the country's head of state, including a convoluted process in which the candidates are nominated by political parties and voted as part of the periodic general elections. It would be ironic if the current maligned process causes Dr Ghany's exit from constitutional reform.

Much of Dr Ghany's recent views on constitutional reform are contained in his publication Changing our Constitution. In that publication he considered this absurdity of having an electoral college rubber-stamp by simple majority the PM's nominee for head of state. Dr Ghany traced this to the need for the political leadership to have control over the choice of Head of State, noting that, "the political reality was that with just the House of Representatives and the Senate, any government of the day ought to be able to control the election of a President."

Dr Ghany would later explain the selection method for the President in this way: "After all, it was necessary to ensure that the replacement of the monarchy and the Governor-General was done in such a way as to permit the election of a President who would not challenge the Prime Minister and the Cabinet in the parliamentary system, but yet be the choice of the majority of the two Houses of Parliament. The legitimacy for the office of President would come from the dignified use of the power of the majority of both Houses, all ceremonially veiled for the occasion in the Electoral College."

Whoever ends up being President, the matter of constitutional reform will be kicked further down the road. Once appointed it is unlikely that any change will be made to the Office of the President until the next opportunity for selecting a President arises in 2018. By that time the country would have experienced further frustrations with its lack of control over the political leadership and the lack of power by the head of state. Those who look longingly towards His Excellency for unprecedented action against the political leadership are understandably desperate. Whilst the Constitution gives the President certain discretionary powers, the fact is that the President can only be persuasive, and in any event no President has an interest in feuding with the elected officials over the balance of power. Presidents merely have a vested interest in self-preservation.

Even before the current debate on Section 81 of the Constitution, Dr Ghany noted in Changing our Constitution that, "The public political wrangling that has taken place in the past between Prime Minister and President has now made the strongest case for changing the presidency at this time by merging the offices of Prime Minister and President into one. Future loopholes are likely to emerge if constitutional reform is not undertaken."

Using the collapse of the Integrity Commission as an example Dr Ghany says, "The political reality is that the President does not bear any political responsibility to any person or authority for the appointment or the failure to appoint an Integrity Commission or any other Commission or office holder for which he is required to make an appointment. That is a major loophole in the existing Constitution."

Unfortunately, part of the irony in Dr Ghany's firm views on the need to reconsider the roles of President and PM, is that this absurd electoral college process will be used to select a head of state, whom Dr Ghany could be asked to replace as Speaker of the House. If that happens, Dr Ghany's academic leadership and active role in constitutional reform will surely be lost.

We may be on the verge of another Reshmi-like mistake.

* Clarence Rambharat is a lawyer and university lecturer