Monday, February 4, 2013

Commentary: Independent Senators and Good Governance

President's official residence
On Monday Trinidad & Tobago would know who will be the country’s next head of state when Prime Minister Kamla Persad-Bissessar announces the name of the government's nominee.

Recently I’ve been hearing a lot of talk about the “integrity” of the system, the need for transparency and a whole lot of irrelevant chatter on the issue. Among the issues being raised is whether the president would be partisan.

The simple fact of the matter is this: the constitution is written to allow the government’s nominee to become president. It has always been that way and 2013 is no different. 

The PNM got Sir Ellis Clarke and George Maxwell Richards; the NAR got Noor Hassanali and The UNC elected Arthur NR Robinson. So now its the PP's turn. 

The full parliament will gather for the presidential election on February 15 and the person who wins a simple majority becomes the president for the next five years. And while we may wish to pontificate on who that person should be and establish various criteria we the public have no direct input into the process.

Our parliamentary system operates on a party basis, guided by a Whip. Unless a decision is made for a free vote the parties tell their members how to vote. Therefore when a party with a majority nominates a candidate for president it expects its members to vote for that person.

In the present parliament there are 29 government members (UNC21, COP 6 and TOP 2) and 12 PNM MPs, including Patrick Manning who will be absent for the voting since he has recently been granted an extension of his medical leave.

Once the matter is decided, we’ll have a fresh face and perhaps ideas and thinking that are very different from what we have today. And that raises a fundamental issue.

Parliament comprises two “houses” – the House of Representatives (HOR) with 41 members elected by universal adult suffrage, i.e. the people, and a Senate comprising 31 unelected members.

According to Section 40 of the Constitution the composition of the Senate in Trinidad and Tobago is as follows:

  • 16 senators appointed by the President on the advice of the Prime Minister 
  • 6 senators appointed by the President on the advice of the Leader of the Opposition
  • 9 senators appointed by the President in his discretion from outstanding persons from economic or social or community organizations and other major fields of endeavour 
This third category is usually referred to as the “independent senators” owing to the fact that they have not been appointed on the basis of political advice.

The presumption is that their appointment comes from an independent source (the President) and they are not part of any caucus, which means that they are not in receipt of a whip.

Section 43(2)(e) of the Constitution makes provision for the President to declare the seat of a senator vacant on the relevant advice of either the Prime Minister or the Leader of the Opposition as the case may be or in his discretion for those nine senators appointed in his discretion.

It means that the President can revoke the appointments of any senator without showing just cause as these appointments do not carry any security of tenure.

Indeed, Prime Ministers and Leaders of the Opposition have taken such action over the years ever since Trinidad and Tobago became a republic in 1976 and it is clearly established that no just cause has ever been required to effect the changes made.

There was outright resistance in 2000 and in 2001 when then President Robinson refused to act on the advice of then Prime Minister Panday to remove two Senators and replace them with Carlos John and Jerlean John in January 2000 and to appoint seven defeated candidates as senators in December 2000. The latter matter was resolved in 2001 after a delay of 55 days, while the former was resolved after about one month.

There has never been any revocation of the appointments of independent senators upon the accession to office of a new President, primarily owing to the fact that the date for the inauguration of the President has, in the past, been very close to the opening of Parliament.

However, this is not the case in 2013. We are seeing a change in the presidency at mid-term because a general election was held long before it was due. 

President Richards is due to demit office on 16th March, 2013. Good governance practices should ensure that the independent senators all offer their resignations to the new President so that an opportunity for review can be entertained.

The next President ought to have the opportunity to reconsider the composition of the independent senators on the following grounds:

  1. There is a no reliable convention that the incoming President does not make any changes to the independent senators upon accession to office. In each instance, it was obviously the personal decision of our presidents not to make any changes at the time of assuming office
  2. The period of time between the first meeting of the current Parliament on 18th June, 2010 and the inauguration of the next President will be approximately 33 months
  3. This will change the parliamentary timetable in relation to the inauguration of a new President that could see presidential inaugurations in the future taking place at the mid-term of a parliamentary cycle if the Constitution is amended to provide for fixed dates for elections with effect from 2015
  4. It is the prerogative of any incoming President to review the composition of the independent benches in the Senate as the Constitution makes provision for changes to be made at any time according to section 43(2)(e). 
  5. The fact that it has not been done before does not mean that a more reliable convention cannot be established for future presidencies 
A period of 33 months will be the longest period of elapsed time between the assembling of a Parliament for its first sitting and the inauguration of a new President, which could provide the new President with the opportunity to do a mid-term review of the performance of the independent senators. 

Section 43(2)(e) of the Constitution allows the incoming President to make changes to the composition of the independent benches in the Senate after the inauguration ceremonies. 

However, as a matter integrity, the current nine Independent Senators should offer their resignations on the assumption of office of a new president and not put the new President in a position whereby he would have to revoke their appointments.

Good governance practices should prevail to allow this to happen.

Jai Parasram

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Jai & Sero

Jai & Sero

Our family at home in Toronto 2008

Our family at home in Toronto 2008
Amit, Heather, Fuzz, Aj, Jiv, Shiva, Rampa, Sero, Jai