Former attorney general Ramesh Lawrence Maharaj says even though Senate President Timothy Hamel-Smith is a member of the governing party, his actions must appear to be impartial and "out of the party political arena".
Maharaj, in a telephone interview on Monday, was commenting on Hamel-Smith's legal advice in relation to contractual obligations entered into by the Tobago House of Assembly (THA).
Maharaj was also asked to weigh in on the controversy involving the BOLT (build, own, lease, transfer) arrangements made by the Tobago House of Assembly for the construction of two projects, which the Government has sent to the Integrity Commission, Director of Public Prosecutions and Commissioner of Police, as well as planning to challenge the arrangement in the courts.
Asked about the fact that Hamel-Smith—who also acts as President when President George Maxwell Richards is out of the country—in his private capacity, had advised the THA that it was legally empowered to enter into BOLT arrangements, Maharaj said the Constitution did not make the President of the Senate/Acting President a full-time job and therefore the holder of this office has always been permitted to carry on with his profession.
"But it is up to the individual to determine whether a matter is likely to be in the political fray and whether it could be embarrassing if he participates or if he should withdraw from participating in that kind of advice."
Maharaj said sometimes in a law firm one attorney might not participate in a matter because there could be an appearance of conflict.
However, Maharaj said it was "totally irresponsible" for Government ministers (Prime Minister, Attorney General and others) to have made the statements they did about the BOLT projects.
"Because the Prime Minister would have known that under the UNC administration BOLT projects were done. And any lawyer who looked at it, would have known that the THA has the power to enter into that arrangement without the Ministry of Finance having regard to the provisions of the Act," Maharaj said.
"There is no basis for denying the legality of the BOLT agreement in Tobago. It is all within the law and it is a mechanism which has been done under previous administrations," he said, adding that anyone who has spent time in government or opposition would know it was an accepted mechanism.
Maharaj also said that the President of the Senate, though he is a member of the governing party, had not only to be impartial but to appear to be impartial.
"Since he also acts as President of the country, it puts a higher onus on him that he must not only be impartial and fair but must appear to be out of the party political arena."
He said Hamel-Smith's statement in a letter to Opposition Leader Dr Keith Rowley, that as far as he was concerned, it was only (former justice minister Herbert) Volney to blame for Section 34 could be construed as support for one side.
He said this was especially so because "the whole country is saying that it is not only Volney, it is the Prime Minister and the entire Cabinet (who were responsible and accountable on this issue)".
Maharaj also stated that while Hamel-Smith is acting as President of the country, matters which come to him in this capacity are confidential and therefore he cannot take such information and pass it on to the Executive, breaching confidentiality.
Maharaj was referring to a letter written from Hamel-Smith to the Prime Minister, which was read out in Parliament by Government leader Roodal Moonilal.