Sunday, February 24, 2013

Guest commentary by Dr Hamid Ghany: Senatorial appointment - to resign or not to resign

Dr Hamid Ghany
There is an emerging debate about whether the senators appointed by the President in his own discretion under Section 40(2)(c) of the Constitution should or should not offer their resignations to the new President upon his accession to office on March 18.

These senators have traditionally been addressed as independent senators, even though no such official term exists. The primary reason for such an accolade is the fact that they are not appointed by either the Prime Minister or the Leader of the Opposition and therefore they are not in receipt of a party whip.

It is already apparent that there is some resistance to this idea among some of the independent senators themselves, based on media reports over the last week. These reports are most disappointing, as one would have expected the highest traditions of good governance to come from these senators.

There is no security of tenure for any senator in our system of government, as they can be removed at any time without just cause. 

When there are changes of Prime Minister or Leader of the Opposition there are senatorial changes, unless there is a desire by the Prime Minister or the Leader of the Opposition to leave any appointment undisturbed (eg Emmanuel Carter as president of the Senate by Patrick Manning after he succeeded ANR Robinson in December 1991 or Wade Mark after Kamla Persad-Bissessar succeeded Basdeo Panday as Leader of the Opposition in February 2010).

In the case of Emmanuel Carter, he served as president of the Senate from 1989 (after the resignation of Michael Williams) until the new Parliament assembled in January 1992 after the general election of December 1991. He was reappointed as a senator on the advice of the new Prime Minister and he was re-elected as president of the Senate by the new senators.

In the case of Wade Mark, he had served continuously as a senator from 1992 and when Kamla Persad-Bissessar was elected as the new political leader of the UNC on January 24, 2010, there was much discussion about whether he would have been retained as an Opposition senator after she was appointed Leader of the Opposition one month later. She did not include him in the changes that she made.

The independent senators are no different. They do not enjoy any security of tenure and they are not a special class of senators. The discretion that applies to the appointment of other senators also applies to them.

It would be most unfortunate if the current independent senators were to put the new President in the position of having his hand forced if he wanted to make any changes. 

It is absolutely fallacious for any of them to form the view that they have any security of tenure for five years because the terms and conditions of Section 43(2)(e) are crystal clear, as follows:

“A senator shall also vacate his seat in the Senate where:
(e) The President, acting in accordance with the advice of the Prime Minister in the case of a senator appointed in accordance with that advice, or in accordance with the advice of the Leader of the Opposition in the case of a senator appointed in accordance with that advice, or in his discretion in the case of a senator appointed by him in his discretion, declares the seat of that senator to be vacant.”

We have often been lectured about the need for good governance practices in this country.
There is absolutely nothing that would suggest that the independent senators have to offer their resignations to the new President upon his accession, other than their own belief it would be an appropriate thing to do to demonstrate to the society that they are servant leaders who are not there to hold office, but rather to serve the society by their own personal examples.

They have all demonstrated true independence during their time in office so far, and the simple gesture of offering their resignations to the new President would raise their profiles as servant leaders and not as office-holders.

When the repeal of the now-controversial Section 34 arose in the Senate last September, the independent senators were divided about whether there was the need to repeal it or not. The majority of them (five) voted for its retention, while a minority (four) voted for its repeal.

It is true that Dr Lennox Bernard had only just been appointed two weeks before this vote and that Prof Harold Ramkissoon was out of the country and Albert Sydney was the temporary senator in his place.

However, in the final vote on the repeal of Section 34, Senators Corinne Baptiste-Mc Knight, Rolph Balgobin, Elton Prescott, James Armstrong and Lennox Bernard voted against it. Those who voted in favour of the repeal of Section 34 were Senators Subhas Ramkhelawan, Helen Drayton, Victor Wheeler and Albert Sydney.
Their independence cannot be questioned, but they would all lift the profile of good governance by offering their resignations to the new President upon his accession. The country would benefit from such an example.

Dr. Hamid Ghany is a Senior Lecturer in Political Science at the Department of Behavioural Sciences, The University of the West Indies, St. Augustine, Trinidad. He is also a respected expert on constituional matter and a regular commentator on national issues.

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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