Prof Hamid Ghany

The in­tro­duc­tion of a Pres­i­dent of Trinidad and To­ba­go brought about an ad­di­tion­al method of ex­er­cis­ing ex­ec­u­tive pow­er. A for­mal recog­ni­tion was giv­en to ‘con­sul­ta­tion’ in the ex­er­cise of ex­ec­u­tive pow­er along­side ad­vice and dis­cre­tion. No spe­cif­ic de­f­i­n­i­tion has been in­clud­ed in the con­sti­tu­tion to gov­ern the ex­er­cise of con­sul­ta­tion so that con­tro­ver­sies have arisen about its ex­er­cise over the years.

One of the few ar­eas where Er­ic Williams and the PNM agreed with the Wood­ing Com­mis­sion was on the trans­fer of prime min­is­te­r­i­al ap­point­ments to the Pres­i­dent. Ac­cord­ing to Williams in the House of Rep­re­sen­ta­tives when he laid their re­port in Par­lia­ment:

“They rec­om­mend–and the Peo­ple’s Na­tion­al Move­ment en­tire­ly sup­ports the view–that the Pres­i­dent is to be the per­son re­spon­si­ble, af­ter con­sul­ta­tion with the Prime Min­is­ter, Leader of the Op­po­si­tion, and such oth­er per­sons as he thinks fit in his dis­cre­tion, for ap­point­ments to a num­ber of of­fices.” (Hansard, House of Rep­re­sen­ta­tives, Vol 18, Ses­sion 1974–75, p 387).

The Williams mod­el was de­signed to re­move the ad­vice of the PM in re­spect of the ap­point­ments to the of­fices of Chief Jus­tice, the oth­er mem­bers of the Ju­di­cial and Le­gal Ser­vice Com­mis­sion, the chair­man and oth­er mem­bers of the oth­er ser­vice com­mis­sions, and the chair­man of the Bound­aries Com­mis­sion as well as the so-called in­de­pen­dent sen­a­tors whom he pre-se­lect­ed.

By 1976, the Williams mod­el piv­ot­ed in the di­rec­tion of a pres­i­den­cy that would be elect­ed by a ma­jor­i­ty of par­lia­men­tar­i­ans.

All was well for the first 10 years of the pres­i­den­cy un­til there was po­lit­i­cal change on De­cem­ber 16, 1986, and a sub­se­quent pres­i­den­tial change on March 19, 1987.

The new NAR gov­ern­ment named for­mer Ap­peal Court jus­tice Noor Has­sanali as its pres­i­den­tial nom­i­nee to re­place Pres­i­dent El­lis Clarke. Has­sanali re­signed from the Ju­di­cial and Le­gal Ser­vice Com­mis­sion ahead of as­sum­ing the pres­i­den­cy.

The out­go­ing pres­i­dent reap­point­ed James Al­va Bain as chair­man of the Pub­lic Ser­vice and Po­lice Ser­vice Com­mis­sions on De­cem­ber 31, 1986, and Ce­cil Kel­sick to the Ju­di­cial and Le­gal Ser­vice Com­mis­sion on March 14, 1987. Clarke’s term of of­fice was set to ex­pire on March 19, 1987.

The new prime min­is­ter, ANR Robin­son, com­plained that he had not been con­sult­ed in re­spect of the De­cem­ber 31 ap­point­ments. The out­go­ing pres­i­dent claimed that he had al­ready con­sult­ed a prime min­is­ter and a leader of the Op­po­si­tion (the pre­vi­ous ones) and had made up his mind. How­ev­er, he had omit­ted to make the ap­point­ments be­fore the gen­er­al elec­tion.

In the case of Kel­sick, the out­go­ing pres­i­dent claimed that the new prime min­is­ter was un­co­op­er­a­tive in the con­sul­ta­tion process. Prime min­is­ter Robin­son claimed that the ap­point­ment could be left for the act­ing pres­i­dent to make be­fore Has­sanali’s in­au­gu­ra­tion.

Robin­son was an­gry, but he could not con­trol the out­go­ing pres­i­dent to com­ply with his wish­es. Clarke was adamant that he was not leav­ing any va­can­cy for the act­ing pres­i­dent, Michael Williams (Pres­i­dent of the Sen­ate) to fill dur­ing the five-day pe­ri­od be­tween his de­par­ture and Has­sanali’s ac­ces­sion to of­fice on March 19.

Robin­son di­rect­ed his at­tor­ney gen­er­al, Sel­wyn Richard­son, to take the Bain mat­ter to court. Jus­tice Ivol Black­man, in High Court Ac­tion No 3260 of 1987 (In Re Ap­pli­ca­tion of the At­tor­ney Gen­er­al for leave to ap­ply for ju­di­cial re­view in re the ap­point­ment of James Al­va Bain as a mem­ber of the Pub­lic Ser­vice Com­mis­sion), de­nied scruti­ny. He con­clud­ed that he could not en­quire in­to the pow­ers of the Pres­i­dent un­der sec­tion 38 of the Con­sti­tu­tion.

In 2002, Sat­nar­ine Shar­ma was ap­point­ed chief jus­tice at a time when there was an 18-18 tied Par­lia­ment and Bas­deo Pan­day had re­fused to ac­cept the po­si­tion of leader of the Op­po­si­tion. This was in protest over his re­moval as PM by pres­i­dent Robin­son on Christ­mas Eve 2001.

The Williams mod­el spec­i­fies in sec­tion 83(6) of the Con­sti­tu­tion that con­sul­ta­tion with the Leader of the Op­po­si­tion is to be dis­re­gard­ed be­cause of any fault in the of­fice of Leader of the Op­po­si­tion. Such faults are de­fined to range from a va­can­cy, to un­will­ing­ness to serve to res­ig­na­tion and to “any oth­er rea­son”.

The bot­tom line is that there is no con­sti­tu­tion­al for­mu­la for the ex­er­cise of con­sul­ta­tion. It is sub­ject to the dis­cre­tion of each pres­i­dent or act­ing pres­i­dent to de­cide on their own style. It was Er­ic Williams who de­cid­ed that the act­ing chain of com­mand for the pres­i­den­cy would pass through the Pre­sid­ing Of­fi­cers of Par­lia­ment (the Sen­ate Pres­i­dent, then the Speak­er, in that or­der).

Like oth­er act­ing pres­i­dents be­fore him, Act­ing Pres­i­dent Wade Mark ex­er­cis­es all of the pow­ers, du­ties and func­tions of the pres­i­den­cy when­ev­er he acts as pres­i­dent dur­ing this par­lia­men­tary term.

Prof Hamid Ghany is Pro­fes­sor of Con­sti­tu­tion­al Af­fairs and Par­lia­men­tary Stud­ies at the Uni­ver­si­ty of the West In­dies (UWI). He was al­so ap­point­ed an Hon­orary Pro­fes­sor of the UWI up­on his re­tire­ment in Oc­to­ber 2021. He con­tin­ues his re­search and pub­li­ca­tions and al­so does some teach­ing at the UWI.