The recent revocation of the appointment of Nizam Mohammed as Chairman of the Police Service Commission has highlighted the powers of the presidency in this country. When the Republican Constitution was introduced in 1976, the desire to reduce the powers of appointment enjoyed by the Prime Minister under the 1962 Constitution produced a reform that removed those powers from him and placed them in the hands of the new office of President that had replaced the Governor-General.
What was not transferred was the ministerial responsibility that the Prime Minister bears for all actions carried out by the holder of that office. The great compromise of 1976 was the reduction of prime ministerial power and the protection of the presidency from legal challenge and the absence of any requirement to bear political responsibility in the same way as the Prime Minister previously did.The President of Trinidad and Tobago does not carry any political responsibility for the exercise of his discretionary powers, while ministers bear responsibility for those powers exercised by the President on their advice.
The constitution providesat Section 38 as follows:
• "Subject to Section 36, the President shall not be answerable to any court for the performance of the functions of his office or for any act done by him in the performance of those functions."
There is further protection for the President in Section 80(2) as follows:
• "Where by this Constitution the President is required to act in accordance with the advice of, or after consultation with, any person or authority, the question whether he has in any case so acted shall not be enquired into in any court."
• The reality here is that the presidency is protected from legal challenge and that the only challenge available is that of impeachment insofar as Section 36 of the Constitution makes provision for that.
• Where there is political consensus between the Government and the Opposition on a course of action taken by the President, the political action of impeachment is not even on the horizon. In the Nizam Mohammed matter, the Prime Minister and the Leader of the Opposition are on the same page. This is a new era of consensus in our political history as traditionally the positions of previous office holders of both offices have been at loggerheads with one other on most issues involving the presidency.
• After five changes of government in our 49-year history as an independent nation (1986, 1991, 1995, 2001 and 2010) we have certainly matured as a young democracy. The allegations of ethnic imbalances no longer have the same anxiety attached to them as they did during the period of 1962 to 1986 when there was no political change at the level of the political directorate. Since 1986, the character of government has changed. Where imbalances exist today, such as in the Police Service, we ought not jump to the conclusion that there is something sinister about that.
• A recruitment problem whereby East Indian families have traditionally not encouraged their children to join the Police Service, but rather have tried to encourage them to pursue professions and tertiary education, cannot be converted to affirmative action and quotas to create a new policy.
• The manufacturing of affirmative action approaches in the Police Service to deal with a recruitment problem is not the remit of an independent Commission, but rather a Government which must change public policy to abolish meritocracy and introduce quotas. When a Commission Chairman becomes an activist to change public policy in a case where such powers do not exist for an independent Commission, then the very Commission that he chairs runs the risk of acting ultra vires the Constitution and the law.
• At the same time, qualified persons of the group for whom the affirmative action is intended to serve would have question marks placed over their proposed promotions if the situation was allowed to continue. Additionally, it must be noted that those who may have been bypassed would also feel that affirmative action is being used to sideline them. Comparisons with metropolitan countries are irrelevant as the social dynamics are completely different.
• The convenient use of statistics to speak about an imbalance at the top of the Police Service does not imply that there is anything sinister in that. There is nothing wrong in speaking about an imbalance. But when a Chairman of an independent Commission changes his own remit he causes all of those under his jurisdiction to feel uneasy. Who says that the imbalance is the result of discrimination? Why is the imbalance not the result of East Indian families directing their children elsewhere?
• When the PNM were in power, they used their majority to revoke the notification to appoint Stephen Williams as Commissioner of Police (no allegations of the PNM failing to contribute to the imbalance back then). When the People's Partnership came into power, they used their majority to approve the notification to appoint Dwayne Gibbs as Commissioner of Police (no allegations of the exclusion of East Indians back then). Why?