In recent times, the issue of presidential consultation has been revived as a subject of controversy based on the public spat between Dr Keith Rowley and President Carmona.
Dr Rowley chose to publicly embarrass the President at a Roundtable press conference about the delivery of correspondence to his office. This forced the President to fire back at him about the precise nature of the delivery of the said correspondence to the Office of the Leader of the Opposition.
With the pushback from the President, Rowley used the medium of the TV6 Morning Edition to voice his apology to the President after discovering that the problem was inside his own office and not elsewhere as he had publicly suggested.
What Rowley failed to realise is that the President was still affording him the courtesy of consultation despite the fact that he was not, at that time, serving as Leader of the Opposition seeing that he had been suspended from the service of the House of Representatives from May 6 instant. That suspension ended on June 17 when Parliament was dissolved.
According to the Constitution at Section 83(3)(b), the office of Leader of the Opposition shall become vacant where: "(b) the holder thereof ceases to be a member of the House of Representatives for any cause other than a dissolution of Parliament;...." Owing to the fact that Rowley ceased to hold the position of Leader of the Opposition with effect from May 6, 2015, there was no obligation for the President to consult him on any appointments.
Despite this fact, the President went out of his way to afford him the courtesy of being consulted on a "de facto" basis as Leader of the Opposition as opposed to a "de jure" basis given the powers that are available to him under the Constitution to ignore the Leader of the Opposition in such circumstances.
According to Section 83(6) of the Constitution:
"Where the office of Leader of the Opposition is vacant, whether because there is no member of the House of Representatives so qualified for appointment or because no one qualified for appointment is willing to be appointed, or because the Leader of the Opposition has resigned his office or for any other reason, any provision in this Constitution requiring consultation with the Leader of the Opposition shall, in so far as it requires such consultation, be of no effect."
President Carmona chose to still afford Rowley the courtesy of a letter, despite his suspension, and to delay the swearing in ceremony of new commissioners for the Integrity Commission out of deference to Dr Rowley.
There is no obligation for the President to listen to either the Prime Minister or the Leader of the Opposition in making any appointment after consultation. Once he writes to both of them, he can then proceed to make his own appointments in his own discretion.
Presidential controversies over consultation have arisen over the years since we became a republic in 1976. In 1987, former prime minister ANR Robinson took former president Ellis Clarke to court over the issue of the re-appointment of James Alva Bain as a member of the Police and Public Service commissions. Robinson alleged that he had not been consulted by Clarke before Clarke made the appointments.
Mr Justice Blackman held that Section 80(2) of the Constitution ousted his jurisdiction to enquire into the matter. Section 80(2) reads 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."
Another controversy arose during the period of the 18-18 Parliament in 2002 when Basdeo Panday refused to accept appointment to the office of Leader of the Opposition after he was removed from the office of prime minister on Christmas Eve 2001. In the circumstances, there was no Leader of the Opposition and the provisions of Section 83(3)(b) cited above would have applied to all such appointments during this period.
As it turned out, Michael de la Bastide's retirement from the position of chief justice during this time (on July 18, 2002) made it necessary to make an appointment to that office. Prior to that date, Basdeo Panday made a public statement that the next "victim" of President ANR Robinson after his (Panday's) removal from the office of prime minister would have been the denial of Justice of Appeal Satnarine Sharma from being appointed chief justice.
President Robinson announced the appointment of Sharma to the office of chief justice on July 10, 2002, shortly after those comments were made. Clearly, he used Panday's comments against him and it was construed by many as "consultation."
There have also been failures of consultation whereby the President got it completely wrong. Such an example can be seen where former president George Maxwell Richards appointed Jeffrey Mc Farlane as deputy chairman of the Integrity Commission in May 2009 when Mc Farlane was clearly and unambiguously ineligible to hold such a position.