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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.

Photo: Trinidad and Tobago President Anthony Carmona (second from right) shows Pope Francis how to beat iron. (Courtesy whensteeltalks.com)
Photo: Trinidad and Tobago President Anthony Carmona (second from right) shows Pope Francis how to beat iron.
(Courtesy whensteeltalks.com)

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.

Photo: Trinidad and Tobago President Anthony Carmona (left) and his wife Reema Harrysingh-Carmona (centre) arrive in Argentina for a high profile international friendly in June 2014. (Courtesy Allan V Crane/TTFA)
Photo: Trinidad and Tobago President Anthony Carmona (left) and his wife Reema Harrysingh-Carmona (centre) arrive in Argentina for a high profile international friendly in June 2014.
(Courtesy Allan V Crane/TTFA)

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.

Photo: President Anthony Carmona (right) swears in Prime Minister Dr Keith Rowley. (Copyright Reuters)
Photo: President Anthony Carmona (right) swears in Prime Minister Dr Keith Rowley.
(Copyright Reuters)

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.

Photo: Trinidad and Tobago President Anthony Carmona is snapped before a meeting with China President Xi Jingping in Port of Spain on 2 June 2013. (Copyright Frederic Dubray/AFP 2016/Wired868)
Photo: Trinidad and Tobago President Anthony Carmona is snapped before a meeting with China President Xi Jingping in Port of Spain on 2 June 2013.
(Copyright Frederic Dubray/AFP 2016/Wired868)

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.

Photo: Former Extra Foods CEO Vindra Naipaul-Coolman, 52, was kidnapped on 19 December 2006. Her body was never found and she is believed to have been sawed up and disposed at sea by her kidnappers. (Courtesy Indo Caribbean World)
Photo: Former Extra Foods CEO Vindra Naipaul-Coolman, 52, was kidnapped on 19 December 2006.
Her body was never found and she is believed to have been sawed up and disposed at sea by her kidnappers.
(Courtesy Indo Caribbean World)

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.

AboutMartin Daly

Martin Daly
Martin G Daly SC is a prominent attorney-at-law. He is a former Independent Senator and past president of the Law Association of Trinidad and Tobago. He is chairman of the Pat Bishop Foundation, a board member of The Little Carib Theatre and Folkhouse and a steelpan music enthusiast.

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22 comments

  1. Or maybe he does. All to well and he is bending and twisting it so that it benefits those who placed him there…

  2. We are knocking the present Prez for taking some time on this SSA issue but what about when he hastily signed Sec.34?? What about when Former Prez Robbie blatantly refused to sign and accede to Cabinet instructions a few years ago.?? He may not be the best but I agree with him on this one.

  3. Buy a pack of AAA batteries ,please.

  4. The Don speaketh.
    I need say nothing further.

  5. Lasana the President can’t drag his feet when it comes to verdicts. Not in criminal matters. That’s the remit of the jury.

    • Thanks Fulton. I didn’t specify criminal matters though. It isn’t my field and I can’t give details. But I was told by a colleague that attorneys complained about extremely long waits for Carmona to rule.

  6. Let’s consider the President’s salary, allowances, salary for administrative staff, security personnel, travel etc. and consider his role in TnT…assenting of laws (rubber stamping), appointments on the advise of cabinet or PM and Opposition (more rubber stamping), discretionary appointments, ceremonial appointments, meeting Heads of State, he is the Commander in Chief of the Armed Forces, (but no military back ground).

    Is the cost worth the benefit? Can’t we have our elected officials perform the same role? Of course this might be more difficult than shutting down CEPEP or URP…

    • There ought to be an independent committee set up to ‘rubber stamp’ these Bills, as is done in the UK. Although the ‘Queen’ assents to legislation, in reality it is a committee that does it on her behalf. And there is no option to say no, as that would be overriding the will of Parliament.

  7. While he has assented, I don’t think the Act has been proclaimed making it not yet law. Anyone knows what the current situation is with the Act?

  8. Maybe the ICC had a more rigid screening process hence the reason he took up the President ‘s job ? As I said before what was done in the dark will one day come to light . I don’t want Lasana to get in trouble .

  9. Can’t wait for this guy to.exit

  10. Par for the course in T&T perhaps? We aren’t all more flash than substance. But he sure wouldn’t be in the minority.

  11. Superb rep on the bench but can’t understand the constitution…

  12. Maybe. The general consensus was that he had a superb reputation on the bench. Although I’ve heard that he routinely dragged his feet when it came to delivering verdicts too. I can’t verify.

  13. Maybe Carmona has risen to the heights he has risen (locally and internationally) on the back of charm and charisma…

  14. Ok. Made the comments based on the headline. Article does say assent was completed. The title is misleading.

  15. I could have sworn I heard on the news this week that it was assented.

  16. What is going on seems to be evident. He is trying to protect by force or by his own volition, his friends. To the uninformed public he also making it seem that he has powers to assent or not. The truth is, whether he wants to or not, he’s just a PPuppet, a Elmo doing what he is told.