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The Presidential bully pulpit
In more recent times the Office of the President has begun to make use of the proverbial presidential bully pulpit that is normally reserved for executive presidencies. President Richards has made some politically challenging statements in recent times that are unusual for a quasi-ceremonial presidency that bears no political responsibility and enjoys legal immunity.
The address at the ceremonial opening of Parliament in July, as well as the midnight re-enactment of the flag-raising ceremony for independence, represent two examples of the trend towards a presidential bully pulpit. The latest example comes from the acting President Senator Timothy Hamel-Smith.
In a statement released from the Office of the President, the acting President chose to discuss the matters surrounding the fiasco of the enactment and early proclamation of Section 34 of the Administration of Justice (Indictable Proceedings) Act 2011 in relation to his own personal involvement as President of the Senate and also in a wider sense from the Office of the President.
It was apparent that he chose to involve the Office of the President in the matter by virtue of the fact that he considered that he was in a position to play a dual role. His actual words were: “My first official duty after having been sworn in as acting President on 18th September, 2012, was to receive a petition presented that afternoon by the Leader of the Opposition, the Honourable Dr Keith Rowley, on behalf of concerned citizens, relating to matters arising from the Administration of Justice (Indictable Proceedings) Act 2011.”
As citizens will be aware, under our Constitution the President of the Senate is temporarily appointed to the Office of President in the absence of the substantive holder of that office. I believe that the dual roles which I am required to perform, place me in a unique position to reflect on the multi-dimensional issues flowing from dealing with the passage of legislation and more particularly those which have arisen from the passing of this act.”
This is where the acting President may have erred in exercising a judgment that he could be in a position to perform dual roles. The Constitution is very specific at Section 44(2) that the person who holds the office of President of the Senate shall “vacate” that office during “such period” that he is “acting” as President.
To all intents and purposes, the acting President is the President of the Republic during those periods when it is necessary for such constitutional provisions to be invoked. As a consequence, it was not proper for the acting President to make a statement on the matter in the context of his “dual roles” as the Constitution is very specific that no dual roles can exist.
However, the acting President chose to issue a statement from the Office of the President that included his performance as President of the Senate. To this end, he was able to use the presidential bully pulpit that has emerged in recent times.
The Office of the President, through the statement by the acting President, goes on to make a bold assertion as follows:
“With hindsight, I am clear that Section 34 of the act (as amended in the Senate and then passed in both Houses) was fundamentally flawed. It was simply wrong for legislation to be passed which imposed a time limit for the prosecution of indictable crimes which would start to run from the date of the alleged offence, without at least (i) excluding serious white collar crimes, including corruption and money laundering; or (ii) permitting the Court to exercise its discretion dependent on the facts of each case.”
This is not the President of the Senate speaking, this is the President of the Republic. The next paragraph in the statement involves the switch from being acting President to being the President of the Senate. The heading for this portion of the statement is “Lessons to be learnt” and has nothing to do with the Office of President as can be seen as follows:
“As the Presiding Officer at the time this act was passed in the Senate, I feel a sense of personal responsibility to ensure that this failure on the part of our parliamentary system, of which I am an integral part, does not recur. I consider that it is my duty to do whatever I can to assist the nation and its citizens to consider the lessons that are available to be learnt from this situation in which flawed legislation was passed and brought into force by proclamation.”
This is where he really ought to have exercised some caution as there were five independent Senators who voted against the repeal of Section 34 and as their presiding officer he ought not to have chastised them publicly in this way. They exercised a conscience vote and did not agree with the Government and the Opposition that Section 34 ought to have been repealed.
As President of the Senate, he ought to have avoided using the Office of the President as a bully pulpit for his Senate activities.
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