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Sunday, June 5, 2016

Last week, President Anthony Carmona issued a statement announcing that he had assented to the Strategic Services Agency (Amendment) Bill 2016. The release said in part:

“The assenting to bills can neither be pre-emptive or instanter, often dependent upon His Excellency’s consultation and receipt of legal advice. Accordingly, assenting to bills of this Republic, will continue to be for His Excellency the President, a process of constitutional and legal reflection, analysis and determination vis-a-vis his duties and responsibilities pursuant to section 61(2) of the Constitution of the Republic of Trinidad and Tobago.” 

Section 61(2) states:

“When a bill is presented to the President for assent, he shall signify that he assents or withholds his assent.” 

This is rewrite of section 44(2) of the 1962 independence Constitution with the words “Governor General” being replaced by “President”.

In effect, the release from President’s House said that the President can make a determination after his self-initiated process of “constitutional and legal reflection, analysis and determination” to withhold assent from any bill if he thinks so.

The Rowley administration has been put on notice by President’s House that the withholding of assent to legislation could lie over the horizon if the President is not satisfied with any bill passed by the Parliament.

That is a dangerous presidential pathway. However, we did not get to this point by chance. In 2000 and 2001, then president Robinson openly defied the advice of then prime minister Basdeo Panday to refuse him the removal of two senators in January 2000. This was followed by a further refusal in December 2000 of his desire to have seven defeated candidates appointed as senators after the 2000 general election.

It was politically convenient back then for some people for such overt presidential defiance to take place. Alongside all of that, there was also Robinson’s tardy response to the request of the Panday administration to appoint a commission of inquiry into the judiciary under the chairmanship of Lord Mackay of Clashfern.

Fast forward to today, and we can realise that the zone of presidential defiance of the Executive has the potential to grow into withholding assent to legislation. 

All of this has to be understood as a defiance of Section 80(1) of the Constitution which reads in part as follows:

“In the exercise of his functions under this Constitution or any other law, the President shall act in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet, except in cases where other provision is made by this Constitution or such other law….”

Section 61(2) cited above, must be read in conjunction with Section 80(1). The President just cannot decide that he wishes to refuse assent to any bill properly passed by Parliament. Until such time as the Constitution is changed to permit the move from a quasi-ceremonial presidency to an executive one, the President must act in accordance with Section 80(1) regardless of whether it is the Rowley administration or any other.

President Carmona may have read commentaries by two senior counsels, Ramesh Lawrence Maharaj and Fyard Hosein in 2014 when they were commenting on the Constitution (Amendment) Bill 2014 that had just been passed with amendments in the Senate.

Writing under the headline Ramesh: President can veto Constitution Bill on September 5, 2014, Newsday reporter Stacy Moore wrote as follows: 

“President Anthony Carmona has the powers in his hands to determine whether the Constitution (Amendment) Bill 2014 becomes law by his decision to either giving assent to the bill, or veto it. This was yesterday revealed by former Attorney General Ramesh Lawrence Maharaj who said the Constitution of Trinidad and Tobago gives the President the right to veto legislation passed by both Houses of Parliament. Maharaj is of the view that the President must have extensive discussions and consultations with groups and individuals in order to ‘properly exercise his discretion whether he should assent to the Bill, or veto it’. The former attorney general was speaking at the launch of the ‘Democracy Watch’ at a press conference at his office on Irving Street, San Fernando.” 

Meanwhile, Senior Counsel Fyard Hosein writing in the Sunday Express of September 14, 2014, under the headline The Limits of Presidential Authority said in part: 

“The plain meaning of the Constitution is that the President may withhold his approval of a bill passed by the Parliament. That is not in itself extraordinary. After all, the process of making a statute is not complete unless the President assents. His Excellency exercises an independent law making power, which forms an integral step in the legislative process. To deny the existence of that power is to defy the plain meaning of the Constitution and to deny the true meaning and intent of Parliament.”

In disagreeing with both points of view, it is necessary to point out that our system of government gives political responsibility to the Cabinet and not to the President for the general conduct of the affairs of the State for which Cabinet is accountable to Parliament. The President is not accountable to anyone.


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