Wednesday, January 24, 2018

Section 81 versus real power


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It is now clear that the "Roundtable" political association is hell-bent on keeping the matter of the infamous Section 34 alive at all costs.

Indeed, it is clear that the Opposition grouping feels that this is an issue with which it can draw blood from the Government, hence the newfound ammunition in the form of Section 81 of the Constitution being used as a conduit.

I have taken note of the several arguments and counter- arguments which have been taking place among learned and knowledgeable members of the public, particularly among members of the legal profession.

It must be made clear, however, that decisions in matters of a constitutional nature are scarcely settled in "straight-jacket" legal settings, hence the existence of constitutional courts in many countries in order to place such matters in their historical and political perspective.

With respect to Section 81 of the Constitution of Trinidad and Tobago, I am of the view that this section, like so many others in our Constitution, is intended to give effect to a centuries-old convention in the Westminster/ Whitehall tradition.

It is an established convention of the British that, after a Cabinet meeting, the prime minister, by way of a standing arrangement, would journey to the monarch in order to brief him or her of what had transpired at the meeting. It must be pointed out that this convention does not, in any way, constitute the seeking of approval of any course of action by the monarch but is a recognition that, notwithstanding the true seat of executive power, homage must be paid to the constitutional head of state. As an aside, it has been said that in the UK a long-reigning monarch could be influential behind the scenes at these briefings with a prime minister in light of the knowledge which he or she may have acquired over an extended period of reign as in the current case.

While Section 81 appears to be an attempt to put the above convention in legal terms, it seems doubtful whether this has been done in the manner as practised under the Westminster/ Whitehall tradition. Thus, could one have expected Dr Eric Williams to visit Sir Ellis Clarke, as President, in order to brief the latter after a Cabinet meeting? I doubt it. It also seems that this custom is not being practised a la Westminster. up to today.

What then is the established convention linking the Prime Minister to the President? Is it only by way of forwarding cabinet notes to the President? Something seems amiss here.

A few points of relevance. Could one envisage Queen Elizabeth II taking prime minister David Cameron to court in respect of any matter whatsoever? Bearing in mind that our presidency is, with a few exceptions, non-executive, could he or she act outside the realm of the Cabinet in any matter? The answers seem clear.

Errol OC Cupid