In pi­lot­ing the Con­sti­tu­tion (Re­pub­lic) Bill 1976 in the House of Rep­re­sen­ta­tives, Prime Min­is­ter Er­ic Williams said, “In the ab­sence or in­abil­i­ty of the Pres­i­dent of the Re­pub­lic, the Pres­i­dent of the Sen­ate will act. In the event that the Pres­i­dent of the Sen­ate might him­self be un­avail­able, the Speak­er of the House of Rep­re­sen­ta­tives will take over.” (Hansard, House of Rep­re­sen­ta­tives, March 12, 1976, p 679).

This was the Williams in­no­va­tion to use the pre­sid­ing of­fi­cers of Par­lia­ment for the act­ing arrange­ments for the new pres­i­den­cy. These arrange­ments per­mit­ted the ma­jor­i­ty par­ty to se­cure pre­sid­ing of­fi­cers of their choice to serve as act­ing pres­i­dent.

His pro­jec­tion was that the PNM would re­main the dom­i­nant par­ty be­cause all oth­er par­ties would con­tin­ue in op­po­si­tion be­cause of vote split­ting un­der the first-past-the-post sys­tem. Af­ter his death, the PNM en­tered op­po­si­tion in 1986, 1995, 2010, and 2025.

Williams de­scribed the pres­i­den­tial pow­ers un­der the new pow­er of con­sul­ta­tion as fol­lows: “In re­spect of Chap­ter 5, Ex­ec­u­tive Pow­ers, we have made pro­vi­sion for dis­cre­tion to be ex­er­cised in re­spect of con­sul­ta­tion by the Pres­i­dent of the Re­pub­lic; that ob­vi­ous­ly will be out of place when the Head of State was a Gov­er­nor-Gen­er­al as the rep­re­sen­ta­tive of a for­eign sov­er­eign. We made pro­vi­sion, tak­ing in­to ac­count the fur­ther rec­om­men­da­tion of the Joint Se­lect Com­mit­tee, for the un­for­tu­nate even­tu­al­i­ty where there might be no Leader of the Op­po­si­tion, or, as the Joint Se­lect Com­mit­tee rec­om­mend­ed, where the Leader of the Op­po­si­tion re­fus­es for one rea­son or an­oth­er to act.” (Hansard, House of Rep­re­sen­ta­tives, March 12, 1976, p 681).

The emas­cu­la­tion of the of­fice of Leader of the Op­po­si­tion for the new pow­ers of con­sul­ta­tion for the pres­i­den­cy and, by ex­ten­sion, the act­ing pres­i­dent, was im­ple­ment­ed at sec­tion 83(6):

“Where the of­fice of Leader of the Op­po­si­tion is va­cant, whether be­cause there is no mem­ber of the House of Rep­re­sen­ta­tives so qual­i­fied for ap­point­ment or be­cause no one qual­i­fied for ap­point­ment is will­ing to be ap­point­ed, or be­cause the Leader of the Op­po­si­tion has re­signed his of­fice or for any oth­er rea­son, any pro­vi­sion in this Con­sti­tu­tion re­quir­ing con­sul­ta­tion with the Leader of the Op­po­si­tion shall, in­so­far as it re­quires such con­sul­ta­tion, be of no ef­fect.”

The Williams mod­el on con­sul­ta­tion in­volv­ing the Leader of the Op­po­si­tion in­clud­ed an um­brel­la clause—“or for any oth­er rea­son”—to com­plete­ly ren­der the Leader of the Op­po­si­tion use­less in con­sul­ta­tion mat­ters. The re­pub­li­can Con­sti­tu­tion ex­pect­ed the PNM would re­main a dom­i­nant par­ty, win­ning elec­tion af­ter elec­tion. The op­po­si­tion par­ties were ex­pect­ed to re­main di­vid­ed and be per­ma­nent­ly in op­po­si­tion. The script has not worked that way.

The re­cent ap­point­ment of the Chief Jus­tice has not vi­o­lat­ed any as­pect of our Con­sti­tu­tion.

The Leader of the Op­po­si­tion com­plained about the time al­lo­cat­ed to her for con­sul­ta­tion over the Chief Jus­tice. Her com­plaints fall in­to the emas­cu­la­tion of her of­fice as de­signed by Williams. The crit­ics have con­ve­nient­ly avoid­ed this.

When Ivor Archie was ap­point­ed Chief Jus­tice by Pres­i­dent George Maxwell Richards in 2008, one day af­ter the tor­tured de­par­ture of Sat­nar­ine Shar­ma as Chief Jus­tice, there was no hue and cry over swift con­sul­ta­tion.

The re­al prob­lem with the ap­point­ment of the new Chief Jus­tice was that Pres­i­dent Chris­tine Kan­ga­loo did not make the ap­point­ment her­self. The out­go­ing Chief Jus­tice sud­den­ly changed his timetable for re­tire­ment once Kan­ga­loo left the coun­try.

This placed the mat­ter in the hands of the Act­ing Pres­i­dent, and he con­sult­ed be­fore mak­ing a sub­stan­tive ap­point­ment.

It is not sur­pris­ing that all of these vo­cal crit­ics have con­ve­nient­ly for­got­ten that for­mer pres­i­dent El­lis Clarke con­tro­ver­sial­ly left the coun­try for three days in 1986 and made no arrange­ments for an act­ing pres­i­dent so as to avert any sub­stan­tive ap­point­ments be­ing made by Pres­i­dent of the Sen­ate Dr Wahid Ali.

Ac­cord­ing to the Sun­day Guardian for April 13, 1986, Pres­i­dent Clarke said, up­on his re­turn: “If I had been leav­ing the coun­try on a Sun­day to re­turn the fol­low­ing Sun­day, I would have no doubt in my mind that the Pres­i­dent of the Sen­ate would act. But whether he should act when I am away for one or two days, that is for me to de­ter­mine.” (See “Pres­i­dent Clears the Air”, Sun­day Guardian, April 13, 1986, pp1 and 18).

Per­haps the crit­ics would have no prob­lem with that avoid­ance strat­e­gy to pre­vent an Act­ing Pres­i­dent from mak­ing pres­i­den­tial ap­point­ments.

Nor­mal­ly, the Cab­i­net and the Chief Jus­tice would be in­formed about any pres­i­den­tial ab­sence so that act­ing arrange­ments can be made be­cause the se­cu­ri­ty of the State is at risk.

Al­so, trav­el fund­ing may have to be ap­proved. Short mem­o­ries cre­ate fake present-day crises that should nev­er ex­ist.  

Prof Hamid Ghany is Pro­fes­sor of Con­sti­tu­tion­al Af­fairs and Par­lia­men­tary Stud­ies at The Uni­ver­si­ty of the West In­dies (UWI). He was al­so ap­point­ed an Hon­orary Pro­fes­sor of The UWI up­on his re­tire­ment in Oc­to­ber 2021. He con­tin­ues his re­search and pub­li­ca­tions and al­so does some teach­ing at The UWI.