DR HAMID GHANY

Now that the To­ba­go House of As­sem­bly (THA) has been dis­solved, the next ma­jor step to be tak­en is for the Pres­i­dent to fix an elec­tion date. Ac­cord­ing to Sec­tion 22(1) of the THA Act of 1996: "The as­sem­bly shall con­tin­ue for four years from the date of its first sit­ting af­ter any pri­ma­ry elec­tion, and shall then stand dis­solved, un­less the as­sem­bly, by res­o­lu­tion, dis­solves it­self at an ear­li­er date."

It is clear that a po­lit­i­cal de­ci­sion was made by the ma­jor­i­ty in the THA to dis­solve the as­sem­bly be­fore the ex­pi­ra­tion of its term of of­fice on Jan­u­ary 22, 2013 (which would have been four years from the date of its first sit­ting on Jan­u­ary 22, 2009).

With the as­sem­bly hav­ing been dis­solved, the door is now open to a pro­ce­dure for fix­ing a date for the next THA elec­tion that in­volves the Pres­i­dent, the chief sec­re­tary of the THA and the Prime Min­is­ter.

This is so be­cause Sec­tion 22(2) of the THA Act of 1996 states that "the Pres­i­dent, af­ter con­sul­ta­tion with the Prime Min­is­ter and the chief sec­re­tary, shall fix the date of a pri­ma­ry elec­tion, which date shall not be ear­li­er than the ex­pi­ra­tion of two months af­ter the dis­so­lu­tion of the As­sem­bly, nor lat­er than the ex­pi­ra­tion of three months af­ter that dis­so­lu­tion."

This pro­ce­dure has now made the fix­ing of a date for the THA elec­tion a mat­ter to be de­ter­mined by de­layed pres­i­den­tial dis­cre­tion, that is to say, con­sul­ta­tion with the chief sec­re­tary and the Prime Min­is­ter in the first in­stance and then the Pres­i­dent will make up his own mind as to when he would like the THA elec­tion to be held some­where be­tween De­cem­ber 26 and Jan­u­ary 25.

Giv­en the ten­den­cy of Pres­i­dent Richards over the last four months to pub­licly at­tack the Gov­ern­ment (the open­ing of Par­lia­ment in Ju­ly and the mid­night re-en­act­ment of the in­de­pen­dence flag-rais­ing cer­e­mo­ny in Au­gust) there­by de­part­ing from his na­tion­al role as Pres­i­dent for all and not for some, it is now dif­fi­cult to trust his im­par­tial­i­ty in seek­ing to fix a date that will favour one side over the oth­er.

The pow­er to fix a date for na­tion­al and lo­cal gov­ern­ment elec­tions has al­ways been de­ter­mined by the Cab­i­net and ad­vised by the Prime Min­is­ter over the years. How­ev­er, in 1996, the framers of the THA Act felt it nec­es­sary to give the Pres­i­dent a dis­cre­tion to fix the date for a THA elec­tion which es­sen­tial­ly took the pow­er out of the hands of the Prime Min­is­ter and placed it in the hands of the Pres­i­dent mere months be­fore ANR Robin­son be­came Pres­i­dent.

The Pres­i­dent bears no po­lit­i­cal re­spon­si­bil­i­ty for any of his ac­tions and he en­joys le­gal im­mu­ni­ty. Where an in­ter­est­ing sit­u­a­tion aris­es is in the fact that writs for elec­tion have to be is­sued un­der the Rep­re­sen­ta­tion of the Peo­ple Act, more specif­i­cal­ly Sec­tion 33 of the act.

The pow­ers of the Pres­i­dent un­der that act are ex­er­cised by him on the ad­vice of the Cab­i­net and so the Prime Min­is­ter will have a say in this mat­ter as these pow­ers of the Pres­i­dent un­der the act are gov­erned by the pro­vi­sions of Sec­tion 80(1) of the Con­sti­tu­tion.

Ac­cord­ing to Sec­tion 33 of the act: "An elec­tion shall be in­sti­tut­ed by a writ of elec­tion is­sued by the Pres­i­dent....ad­dressed to the Re­turn­ing Of­fi­cer for the elec­toral dis­trict for which the elec­tion is to be held..." Sec­tion 80(1) pro­vides for the Pres­i­dent to act on the ad­vice of the Cab­i­net ex­cept in cas­es where he is re­quired to act (i) on the ad­vice of some per­son or au­thor­i­ty oth­er than the Cab­i­net, (ii) af­ter con­sul­ta­tion or (iii) in his dis­cre­tion.

So we have a sit­u­a­tion where the Pres­i­dent can fix the date for the THA elec­tion af­ter con­sul­ta­tion (which is not di­rect­ed by the Cab­i­net) and where the writs for elec­tion have to be fixed on the ad­vice of the Cab­i­net.

The THA Act of 1996 was not ac­com­pa­nied by any amend­ment to the Rep­re­sen­ta­tion of the Peo­ple Act to per­mit the Pres­i­dent to ex­er­cise his own dis­cre­tion to is­sue writs for the elec­tion of as­sem­bly­men to the THA that could have ac­com­pa­nied the grant­i­ng of the pow­er to fix the date for the elec­tion.

For the time be­ing, the oth­er is­sues that arise are re­lat­ed to the procla­ma­tion by the Pres­i­dent on the ad­vice of the Cab­i­net for the nine-day pe­ri­od of elec­toral reg­is­tra­tion in To­ba­go that is cus­tom­ary when an elec­tion is to be held as well as the fix­ing of nom­i­na­tion day (which will have to be re­lat­ed to the elec­tion day that the Pres­i­dent will choose in his dis­cre­tion).

These pro­vi­sions have op­er­at­ed in the past in 2001 with ANR Robin­son (pres­i­dent), Ho­choy Charles (chief sec­re­tary), and Bas­deo Pan­day (prime min­is­ter). In 2005 and 2009 they were han­dled by Pres­i­dent Richards (Pres­i­dent), Orville Lon­don (chief sec­re­tary), and Patrick Man­ning (prime min­is­ter). Hope­ful­ly, pres­i­den­tial im­par­tial­i­ty may pre­vail in choos­ing be­tween the date pro­posed by the chief sec­re­tary and the date pro­posed by the Prime Min­is­ter.