Prof Hamid Ghany

On March 12, 1976, Prime Min­is­ter Dr Er­ic Williams said the fol­low­ing in the House of Rep­re­sen­ta­tives when pi­lot­ing the Con­sti­tu­tion (Re­pub­lic) Bill:

“To deal with more se­ri­ous mat­ters, the pro­vi­sion long an­nounced on this side of the House for a change in the nom­i­na­tion of Sen­a­tors–hav­ing made the de­ci­sion to re­tain the sec­ond cham­ber–is in­clud­ed here in sec­tion 40(2)(c) with nine Sen­a­tors be­ing ap­point­ed by His Ex­cel­len­cy the Pres­i­dent of the Re­pub­lic, in his dis­cre­tion from out­stand­ing per­sons from eco­nom­ic or so­cial or com­mu­ni­ty or­gan­i­sa­tions and oth­er ma­jor fields of en­deav­our.” (Hansard, Vol 19, Ses­sion 1975-1976, p 680).

This state­ment by Dr Williams con­firmed a change in the method of ap­point­ment of these sen­a­tors, who are now termed “in­de­pen­dent sen­a­tors” since 1976.

What was the change to which Dr Williams re­ferred? In 1962, the of­fi­cial re­port of the Marl­bor­ough House Con­fer­ence re­veals the fol­low­ing:

“The Sen­ate. 18. The Up­per House will con­sist of twen­ty-four Sen­a­tors, of whom thir­teen will be ap­point­ed by the Gov­er­nor-Gen­er­al on the ad­vice of the Prime Min­is­ter, four by the Gov­er­nor-Gen­er­al on the ad­vice of the Leader of the Op­po­si­tion and sev­en by the Gov­er­nor-Gen­er­al on the ad­vice of the Prime Min­is­ter af­ter con­sul­ta­tion by the lat­ter with those re­li­gious, eco­nom­ic or so­cial bod­ies or as­so­ci­a­tions from which the Prime Min­is­ter con­sid­ers that such Sen­a­tors should be se­lect­ed. (The Op­po­si­tion del­e­gates did not ac­cept the pro­vi­sions of this para­graph).” (Re­port on the Trinidad and To­ba­go In­de­pen­dence Con­fer­ence 1962, Cm­nd. 1757, 1962, para 18).

There was no con­sen­sus on the Sen­ate pro­pos­als that were set­tled at Marl­bor­ough House in 1962. The Sen­ate that was agreed was a PNM im­po­si­tion against the ob­jec­tions of the DLP op­po­si­tion. There were nev­er any “in­de­pen­dent” sen­a­tors in the Par­lia­ment be­tween 1962 and 1976 as that cat­e­go­ry of sen­a­tors (sev­en of them at the time) were all ap­point­ed by the Gov­er­nor-Gen­er­al on the ad­vice of the Prime Min­is­ter af­ter the Prime Min­is­ter had de­ter­mined which groups or as­so­ci­a­tions he felt he want­ed to be rep­re­sent­ed on the so-called “in­de­pen­dent” bench.

Com­i­cal­ly, the Prime Min­is­ter ap­point­ed the so-called “in­de­pen­dent” sen­a­tors. Twen­ty out of twen­ty-four sen­a­tors be­tween 1962 and 1976 were con­trolled by the Prime Min­is­ter, which helped the PNM to ef­fect con­sti­tu­tion­al re­form in 1976 with a two-thirds ma­jor­i­ty in the Sen­ate on top of their three-fourths ma­jor­i­ty in the House of Rep­re­sen­ta­tives fol­low­ing the 1971 Gen­er­al Elec­tion.

The con­cept of “in­de­pen­dent” sen­a­tors arose out of changes made in 1976 to their method of ap­point­ment as the Prime Min­is­ter was re­placed by the Pres­i­dent.

Sur­pris­ing­ly, the Law As­so­ci­a­tion, in their re­cent pub­lic state­ment on the mat­ter, mis­con­strued the con­sti­tu­tion­al re­form un­der­tak­en in 1976 re­gard­ing this cat­e­go­ry of sen­a­tors.

Ac­cord­ing to their state­ment:

“Mem­bers of the in­de­pen­dent bench in the Sen­ate are se­lect­ed by the Pres­i­dent to rep­re­sent var­i­ous in­ter­est groups. They are not nom­i­nat­ed by the lead­ers of the re­spec­tive po­lit­i­cal par­ties. The pur­pose of this con­sti­tu­tion­al arrange­ment is to af­ford the Par­lia­ment the ben­e­fit of views and per­spec­tives which may not align with, or be shared by, those mem­bers who have a po­lit­i­cal af­fil­i­a­tion.”

That is in­ac­cu­rate. Which in­ter­est groups do these sen­a­tors rep­re­sent to­day? Dur­ing 1962-1976, the rep­re­sen­ta­tion of “var­i­ous in­ter­est groups” was con­fined on­ly to those groups that the Prime Min­is­ter con­sid­ered should be rep­re­sent­ed.

In 1976, the PNM pro­posed that the prime min­is­te­r­i­al pow­er to rec­om­mend these sen­a­tors be trans­ferred to the Pres­i­dent and changed the scope of rep­re­sen­ta­tion on the “in­de­pen­dent” bench.

In­stead of “re­li­gious, eco­nom­ic or so­cial bod­ies or as­so­ci­a­tions from which the Prime Min­is­ter con­sid­ers that such Sen­a­tors should be se­lect­ed”, the new for­mu­la was ap­point­ment “by the Pres­i­dent in his dis­cre­tion from out­stand­ing per­sons from eco­nom­ic or so­cial or com­mu­ni­ty or­gan­i­sa­tions and oth­er ma­jor fields of en­deav­our”.

This change shift­ed the ap­point­ment from prime min­is­te­r­i­al ad­vice to pres­i­den­tial dis­cre­tion and re­placed “in­ter­est groups” with “out­stand­ing per­sons”.

There is no dis­tinc­tion be­tween the oath of of­fice tak­en by these sen­a­tors when com­pared to oth­er sen­a­tors. The term “in­de­pen­dent sen­a­tors” is not a con­sti­tu­tion­al term as it does not ex­ist in the Con­sti­tu­tion. It is a me­dia cre­ation which refers to sen­a­tors who do not re­ceive a par­ty whip from ei­ther the Gov­ern­ment or Op­po­si­tion in the Sen­ate.

There must nev­er be any at­tempt to in­tim­i­date them to vote one way or an­oth­er as ruled by Sen­ate Pres­i­dent Wade Mark on June 30 be­fore the de­bate on the Prime Min­is­ter’s Pen­sion (Amend­ment) Bill. How­ev­er, they are not above scruti­ny for their speech, ac­tions and votes af­ter the con­clu­sion of any par­lia­men­tary pro­ceed­ing in which they par­tic­i­pate. They can do what­ev­er they want, but they are ac­count­able for per­for­mance af­ter the fact.

Prof Hamid Ghany is Pro­fes­sor of Con­sti­tu­tion­al Af­fairs and Par­lia­men­tary Stud­ies of 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.