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This column is being written prior to the sitting of the Electoral College that would have elected Justice Anthony Carmona to be the fifth President of the Republic of Trinidad and Tobago. This will provide a one-month period during which time there will be a transition from President Richards to President Carmona.
As with previous transitions, there are likely to be issues that will arise that may or may not become controversial depending upon how they are handled. The management of any transition process is a function of the personal interaction between the various office holders (the incoming, the outgoing and others).
In 1987, there was no contention between the outgoing president Ellis Clarke and the incoming president Noor Hassanali, but there was clear tension between prime minister ANR Robinson and president Ellis Clarke about whether the president should or should not make an appointment to the Judicial and Legal Service Commission on the eve of his departure to fill the vacancy caused by the resignation of Noor Hassanali who had become the President-elect.
As Clarke was due to travel to the United Kingdom on March 15, just four days before he demitted office, the issue arose over whether he should fill the vacancy or whether it should be left to the acting president, Michael Williams, to make the appointment during the four-day hiatus between Ellis Clarke’s departure and the end of his term on March 19, 1987.
Ellis Clarke insisted that he was not going to leave any vacancies unfilled before he demitted office and he appointed former chief justice Cecil Kelsick as a member of the Judicial and Legal Service Commission for a period of three years with effect from March 15, 1987. President Clarke travelled to London later that night. From my several personal meetings and interviews with the late president Clarke, I was able to get an insight into the situation from his perspective.
The incoming president, Noor Hassanali, did not wish to fill his own vacancy and he preferred that it be filled before he assumed office. President Clarke was being asked not to trouble himself with the burdens of consultation to fill the position on the eve of his departure and that it would certainly be filled before his official term ended (this was not told to him by Michael Williams but by another person).
President Clarke was adamant that he intended to fill the vacancy because it occurred during his term as president and that he would personally attend to it.
This controversy came a couple of months after another controversy that ended up in the courts between prime minister Robinson and president Clarke when the former accused the latter of not consulting him over the re-appointment of James Alva Bain as a member of the Public Service and Police Service Commissions for a further period of three years from December 31, 1986.
The collective effect of all of these presidential controversies led to the appointment of a Constitution Commission in June 1987 chaired by Sir Isaac Hyatali. As Justice Carmona prepares himself for assuming the Office of President on March 18 instant, there are two matters that have arisen in the public domain. One has to do with the appointment of members of the Integrity Commission (other than the chairman) and the other has to do with the continuance of the independent senators in office.
In respect of those members of the Integrity Commission whose term of office will end, President Richards has the option of making those appointments or deferring them as their termination date is March 15. These appointments fall properly within the remit of President Richards and he is fully entitled to make the appointments if he so desires.
Any issue with regard to deferral may arise during the consultation process that will involve both the Prime Minister and the Leader of the Opposition. However, the terminal point of the consultation process is that the final decision always rests in the hands of the president to act in his sole discretion.
In other words, President Richards will make his own determination as to whether he will make substantive appointments to the Integrity Commission or whether he will defer the matter for the attention of the new president.
As regards the issue of the independent senators, section 40(2)(c) of the constitution is explicit that these appointments are to be made by the President acting in his discretion. Over the years, the opportunities for changes to be made to the independent benches as a consequence of a presidential transition have been few and far between.
In 1987 there was the Clarke/Hassanali transition just two months after the new Parliament assembled for the first time. In 1997 there was the Hassanali/Robinson transition 16 months after the Parliament first assembled. In 2003 there was the Robinson/Richards transition just five months after the Parliament first assembled.
The Richards/Carmona transition will take place approximately 33 months after this Parliament first assembled. Good governance practices ought to dictate that the independent senators would offer their resignations to the new President for his discretionary review.
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