Withholding assent: President Carmona does not understand his ‘powers’

I take comfort from the assertion of Archbishop Joe Harris last week that one does not go to hell for telling the truth, in light of the fact that it is necessary again to examine the conduct of the office of the President of the Republic.

What has prompted this examination is the wordy press release issued by that office on Tuesday last notifying us that the President had assented to the Strategic Services Agency (Amendment) Act—or the SSA amendment.

My initial reaction was that the press release contained seeds of constitutional misinterpretation of the President’s function to assent or withhold assent to legislation.

However, since the President had not taken the basket he had been given and actually withheld his assent, I was prepared to view the release as an assurance that his office pays attention to what is in the public domain and therefore to let it be.

Further reflection dissuaded me from such a benign course. I cannot delink the assertions in the press release from the President’s inaugural reference to his “powers”, his departure from practice when he ejected four out of the nine Independent Senators selected by his predecessor before completion of their anticipated terms and the bizarre conduct of some of his selections for public office.

There was also considerable disquiet about the payment of a monthly TT$28,500.00 housing allowance; and I cannot recall an announcement that the allowance had ceased once residence was re-established out of private accommodation. There are reportedly other expenses queries.

Against this background, it is necessary to continue the discussion about the powers that the President’s office truly does not have as well as about the legal relationship between the Office of the President and other constitutional institutions.

In that context there are two aspects of the press release under discussion that are troubling.

First the reference to section 61(2) of the Constitution as the only reference point regarding assent or withholding assent is misleading. As former Chief Justice Michael de la Bastide promptly pointed out, this section is not a stand alone section. It is subject to section 80 of the Constitution, which deals specifically with the exercise of the President’s functions under the Constitution.

Section 80 requires the President to act on the advice of Cabinet or a Minister acting on the authority of Cabinet unless the Constitution or some other law prescribes differently.

Neither section 61(2) nor any other law of which I am aware prescribes differently for assent or withholding assent. The President has no discretionary power where assent or withholding assent is concerned because section 61(2) is subject to section 80 which makes assent or withholding assent a step to be taken on the advice of the Cabinet.

Accordingly, if the President were to act on the basis that he has an unrestricted or discretionary power to withhold assent he would seriously misdirect himself.

The second seed of constitutional misinterpretation lies within the statement regarding the President’s alleged remit in the case of legislation to: assess the “democratic well being of the Republic” and “to heed and acknowledge the impressive jurisprudential arguments, in and out of the Parliament, by the public at large, both for and against the various legislative amendments, inclusive of those concerning privacy and fundamental rights and freedoms.”

Resolution of those arguments is for the Courts. Authority to reject legislation not consistent with our democratic well being does not reside in the President.

He has no power to take a view of the merits of legislation different from that of the Parliament as expressed in a simple or special majority. If he thinks otherwise he will again misdirect himself.

Assessing legislation specifically by reference to our democratic well being is the Judiciary’s call under section 13 (1) of the Constitution in respect of special majority legislation, by reference to a stated test namely, if the Act “is shown not to be reasonably justifiable in a society that has proper respect for the rights and freedoms of the individual.”

For those who wish to remind themselves of my comments on the SSA amendment, please refer to my column published on Sunday 15 May 2016 entitled A land of perceptions.

In a manner of speaking there was an actual case of withholding assent last week.  I refer to the jury, which withheld assent to the prosecution’s case in the high profile murder case concerning Vindra Naipaul-Coolman.

I am among those who firmly believe in the jury system with the possible exceptions of complicated fraud cases and terrorist offences.

Nevertheless, the public is rightly concerned about another spectacular failure in police detection work if the real perpetrators were not found and about what value was obtained from the cost of the prosecution.

En passant, there has been no press release “heeding and acknowledging” the unprecedented public outcry about certain of the Independent Senators.

Yet another week has passed in which the only output was governance confusion.

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