Gail Alexan­der

The Pres­i­dent would be step­ping out­side his con­sti­tu­tion­al bound­ary if he were to at­tempt on his own vo­li­tion to ap­point a com­mis­sion of en­quiry in­to the Sec­tion 34 is­sue with­out the sanc­tion of Cab­i­net's ad­vice or ap­proval, says At­tor­ney Gen­er­al Anand Ram­lo­gan. Ram­lo­gan is­sued a state­ment to this ef­fect yes­ter­day.

Op­po­si­tion Leader Dr Kei­th Row­ley and oth­er po­lit­i­cal groups met with Pres­i­dent George Maxwell Richards on Tues­day. They sought to get the Pres­i­dent to in­sti­tute a com­mis­sion of en­quiry in­to the is­sue and to get him press the Prime Min­is­ter to give an­swers-un­der oath-on the procla­ma­tion of Sec­tion 34. Richards has yet to re­spond pub­licly.

Ram­lo­gan, how­ev­er, yes­ter­day ac­cused the PNM and oth­er groups of try­ing to mis­lead Richards on the is­sue and drag the Of­fice of Pres­i­dent in­to the po­lit­i­cal are­na. "The Pres­i­dent al­ways acts on the ad­vice of Cab­i­net in ap­point­ing com­mis­sions of en­quiry...He would be act­ing con­trary to hal­lowed con­sti­tu­tion­al the­o­ry and prac­tice if he pur­port­ed to act with­out the ad­vice of Cab­i­net," Ram­lo­gan said.

"Any ac­tion by the Pres­i­dent in re­sponse to Dr Row­ley's de­mands is like­ly to be un­de­mo­c­ra­t­ic, un­con­sti­tu­tion­al and il­le­gal." Say­ing the groups' ef­forts were mis­guid­ed, Ram­lo­gan said, "The role of the Pres­i­dent in a West­min­ster sys­tem of par­lia­men­tary democ­ra­cy is large­ly cer­e­mo­ni­al and non-ex­ec­u­tive in na­ture.

"It would be a mis­use and fla­grant abuse of Sec­tion 81 of the Con­sti­tu­tion for his Ex­cel­len­cy to in­sti­tute a po­lit­i­cal probe or in­quiry in­to the ac­tions of the Gov­ern­ment," he added. "This is not the pur­pose, re­mit or func­tion of Sec­tion 81 which is de­signed to keep the Pres­i­dent in­formed.

"Par­lia­ment is the ap­pro­pri­ate or­gan of state for the Op­po­si­tion to ques­tion the ac­tion of the Gov­ern­ment in any mat­ter. It is the du­ty of the Op­po­si­tion to scru­ti­nise and crit­i­cise the Gov­ern­ment. That is not the func­tion of the Pres­i­dent as demon­strat­ed by his si­lence dur­ing the tenure of the PNM ad­min­is­tra­tion de­spite its many trans­gres­sions."

Ram­lo­gan said it was there­fore a mat­ter of grave con­cern that Row­ley had "once again at­tempt­ed to drag the of­fice of the Pres­i­dent in­to the cut and thrust of the po­lit­i­cal are­na." Any such ac­tion, com­ing in the "las lap" of Richards' present term in of­fice, was bound to be in­ter­pret­ed as par­ti­san and po­lit­i­cal, Ram­lo­gan felt. "The sug­ges­tion that the Pres­i­dent could some­how launch an in­quiry or ap­point a com­mis­sion of en­quiry is mis­con­ceived," he said.

"In any event, act­ing Pres­i­dent Tim­o­thy Hamel-Smith has al­ready is­sued a state­ment on be­half of the of­fice of the Pres­i­dent in this mat­ter. He found no ev­i­dence of wrong­do­ing on the part of the en­tire Gov­ern­ment and con­clud­ed that the Prime Min­is­ter had al­ready tak­en ap­pro­pri­ate ac­tion."

Ram­lo­gan said com­mis­sions of en­quiry were ap­point­ed by the Pres­i­dent pur­suant to Sec­tion 2 of the Com­mis­sions of En­quiry Act Ch.19.01, where he deems it ad­vis­able to do so to en­quire in to any mat­ter of pub­lic con­cern which in his opin­ion would be in­ter alia, for the pub­lic wel­fare. "The pow­er so con­ferred is not per­son­al to the Pres­i­dent, nor is it a mat­ter for his un­fet­tered dis­cre­tion,"?he said.

"Sec­tion 80 (1) of our Con­sti­tu­tion which pro­vides that in the dis­charge of his func­tions un­der the Con­sti­tu­tion or any law he must act on the ad­vice of Cab­i­net un­less this is clear­ly and un­equiv­o­cal­ly dis­pensed with by the law it­self and an in­de­pen­dent and un­fet­tered dis­cre­tion is ex­press­ly con­ferred up­on him by the leg­is­la­tion in ques­tion. "This is not the case with Sec­tion 2 of the Com­mis­sions of En­quiry Act."

"This is con­sis­tent with prop­er his­tor­i­cal con­sti­tu­tion­al prac­tice. The Pres­i­dent al­ways acts on the ad­vice of Cab­i­net in ap­point­ing com­mis­sions of en­quiry. He would be act­ing con­trary to hal­lowed con­sti­tu­tion­al the­o­ry and prac­tice if he pur­port­ed to act with­out the ad­vice of Cab­i­net.

"The Pres­i­dent would be step­ping out­side his con­sti­tu­tion­al bound­ary if he were to at­tempt on his own vo­li­tion to ap­point a com­mis­sion of en­quiry with­out the sanc­tion of Cab­i­net's ad­vice or ap­proval. This is an ab­solute con­di­tion prece­dent to any ac­tion by the Pres­i­dent in this re­gard."