The recent revocation of the appointment of four independent senators by the President and their replacement by new ones has been described by some as breaking with precedent, tradition and culture, while others hold the view that in so doing the President was simply exercising the powers vested in him by and under the Constitution.
By Section 40 (1) (c) of the Constitution, the President is empowered to appoint nine senators in his discretion from outstanding persons from economic or social or community organisations and other fields of major endeavour, while by Section 44 (4) (c) he is empowered to remove all or either of them in accordance with his own judgment.
When, therefore, the President removed the four senators, he was clearly exercising a discretion vested in him by the Constitution. That discretion, however, should not be exercised arbitrarily or capriciously.The question whether the President, in exercising his powers under Section 44 (4)(c), had failed to adhere to the precedent and tradition established by former presidents would seem to be a non-issue, since ours is a written constitution and, although of the Westminster model, is not subject to traditions, culture or conventions.
Further, the fact that former presidents might have elected not to remove any senator during their respective terms of office would not, ipso facto, have created a precedent since in law a precedent is a principle or rule established in a previous legal case that is either binding or persuasive to a courtWhat would, however, seem to be of public interest and concern is the criteria and/or rationale used by the President in justifying the removal of four senators, while retaining the services of five.
On this issue, the President has pointed out that there was an absence of the requisite expertise in the Senate for a number of years and this he sought to address by the removal and appointment of four senators. However, it would appear that in the exercise of his discretionary power the President had simply removed from the Senate four experts and replaced them by four others.
It has been further posited that the removal of the four senators may have been as a result of their being persona non grata with the Government in view of their opposition to matters before the Senate such as the Defence Bill. In this connection it may be of interest to note that while the appointment of nine senators by the President may be deemed to be apolitical, the President, on the other hand, owes his appointment to the majority in Parliament, a fact which would appear to be irrebuttable.
It may be significant to note that while Section 44 (4) (c) vests in the President a discretionary power, that discretion, however, is not absolute or unfettered and must, therefore, be exercised fairly and reasonably. Indeed it is an established fact supported by empirical evidence that the vesting of absolute and unfettered power or discretion in anyone could lead to authoritarianism and despotism. Moreover, it was Lord Acton who said: "All power tends to corrupt and absolute power corrupts absolutely."
While the law, on the one hand, requires all discretion to be exercised in accordance with judicial principles of reasonableness, fairness and objectivity, Section 38 of the Constitution, on the other hand, has been interpreted as insulating the President from legal proceedings in any court for the performance of the functions of his office or for any act done by him in the performance of those functions.
In this connection, sovereign immunity has been considered to be an archaic concept and, therefore, has no place in modern morality. It is not surprising, therefore, that the courts have been examining the provisions and implications of Section 38, which purports to give immunity to the President by placing him above the law and from all legal process and have indicated that such immunity was clearly not absolute and unfettered and must be exercised in accordance with the principles of fairness and justice.
In the case of Nizam Mohammed v the Attorney General of T&T (2013) the court held that former president George Maxwell Richards had acted unconstitutionally when he fired Mohammed as chairman of the Police Service Commission and that Mohammed's dismissal was not fair play in action.
Moreover, it was conceded by both Mohammed (claimant) and the Attorney General (defendant) that Section 38 of the Constitution "does not preclude a consideration of whether the actions of the President in firing Mohammed were procedurally correct."
Kenneth R Lalla, SC