Hamid Ghany

In re­cent times, the is­sue of pres­i­den­tial con­sul­ta­tion has been re­vived as a sub­ject of con­tro­ver­sy based on the pub­lic spat be­tween Dr Kei­th Row­ley and Pres­i­dent Car­mona.

Dr Row­ley chose to pub­licly em­bar­rass the Pres­i­dent at a Round­table press con­fer­ence about the de­liv­ery of cor­re­spon­dence to his of­fice. This forced the Pres­i­dent to fire back at him about the pre­cise na­ture of the de­liv­ery of the said cor­re­spon­dence to the Of­fice of the Leader of the Op­po­si­tion.

With the push­back from the Pres­i­dent, Row­ley used the medi­um of the TV6 Morn­ing Edi­tion to voice his apol­o­gy to the Pres­i­dent af­ter dis­cov­er­ing that the prob­lem was in­side his own of­fice and not else­where as he had pub­licly sug­gest­ed.

What Row­ley failed to re­alise is that the Pres­i­dent was still af­ford­ing him the cour­tesy of con­sul­ta­tion de­spite the fact that he was not, at that time, serv­ing as Leader of the Op­po­si­tion see­ing that he had been sus­pend­ed from the ser­vice of the House of Rep­re­sen­ta­tives from May 6 in­stant. That sus­pen­sion end­ed on June 17 when Par­lia­ment was dis­solved.

Ac­cord­ing to the Con­sti­tu­tion at Sec­tion 83(3)(b), the of­fice of Leader of the Op­po­si­tion shall be­come va­cant where: "(b) the hold­er there­of ceas­es to be a mem­ber of the House of Rep­re­sen­ta­tives for any cause oth­er than a dis­so­lu­tion of Par­lia­ment;...." Ow­ing to the fact that Row­ley ceased to hold the po­si­tion of Leader of the Op­po­si­tion with ef­fect from May 6, 2015, there was no oblig­a­tion for the Pres­i­dent to con­sult him on any ap­point­ments.

De­spite this fact, the Pres­i­dent went out of his way to af­ford him the cour­tesy of be­ing con­sult­ed on a "de fac­to" ba­sis as Leader of the Op­po­si­tion as op­posed to a "de ju­re" ba­sis giv­en the pow­ers that are avail­able to him un­der the Con­sti­tu­tion to ig­nore the Leader of the Op­po­si­tion in such cir­cum­stances.

Ac­cord­ing to Sec­tion 83(6) of the Con­sti­tu­tion:

"Where the of­fice of Leader of the Op­po­si­tion is va­cant, whether be­cause there is no mem­ber of the House of Rep­re­sen­ta­tives so qual­i­fied for ap­point­ment or be­cause no one qual­i­fied for ap­point­ment is will­ing to be ap­point­ed, or be­cause the Leader of the Op­po­si­tion has re­signed his of­fice or for any oth­er rea­son, any pro­vi­sion in this Con­sti­tu­tion re­quir­ing con­sul­ta­tion with the Leader of the Op­po­si­tion shall, in so far as it re­quires such con­sul­ta­tion, be of no ef­fect."

Pres­i­dent Car­mona chose to still af­ford Row­ley the cour­tesy of a let­ter, de­spite his sus­pen­sion, and to de­lay the swear­ing in cer­e­mo­ny of new com­mis­sion­ers for the In­tegri­ty Com­mis­sion out of def­er­ence to Dr Row­ley.

There is no oblig­a­tion for the Pres­i­dent to lis­ten to ei­ther the Prime Min­is­ter or the Leader of the Op­po­si­tion in mak­ing any ap­point­ment af­ter con­sul­ta­tion. Once he writes to both of them, he can then pro­ceed to make his own ap­point­ments in his own dis­cre­tion.

Pres­i­den­tial con­tro­ver­sies over con­sul­ta­tion have arisen over the years since we be­came a re­pub­lic in 1976. In 1987, for­mer prime min­is­ter ANR Robin­son took for­mer pres­i­dent El­lis Clarke to court over the is­sue of the re-ap­point­ment of James Al­va Bain as a mem­ber of the Po­lice and Pub­lic Ser­vice com­mis­sions. Robin­son al­leged that he had not been con­sult­ed by Clarke be­fore Clarke made the ap­point­ments.

Mr Jus­tice Black­man held that Sec­tion 80(2) of the Con­sti­tu­tion oust­ed his ju­ris­dic­tion to en­quire in­to the mat­ter. Sec­tion 80(2) reads as fol­lows:

"Where by this Con­sti­tu­tion the Pres­i­dent is re­quired to act in ac­cor­dance with the ad­vice of, or af­ter con­sul­ta­tion with, any per­son or au­thor­i­ty, the ques­tion whether he has in any case so act­ed shall not be en­quired in­to in any court."

An­oth­er con­tro­ver­sy arose dur­ing the pe­ri­od of the 18-18 Par­lia­ment in 2002 when Bas­deo Pan­day re­fused to ac­cept ap­point­ment to the of­fice of Leader of the Op­po­si­tion af­ter he was re­moved from the of­fice of prime min­is­ter on Christ­mas Eve 2001. In the cir­cum­stances, there was no Leader of the Op­po­si­tion and the pro­vi­sions of Sec­tion 83(3)(b) cit­ed above would have ap­plied to all such ap­point­ments dur­ing this pe­ri­od.

As it turned out, Michael de la Bastide's re­tire­ment from the po­si­tion of chief jus­tice dur­ing this time (on Ju­ly 18, 2002) made it nec­es­sary to make an ap­point­ment to that of­fice. Pri­or to that date, Bas­deo Pan­day made a pub­lic state­ment that the next "vic­tim" of Pres­i­dent ANR Robin­son af­ter his (Pan­day's) re­moval from the of­fice of prime min­is­ter would have been the de­nial of Jus­tice of Ap­peal Sat­nar­ine Shar­ma from be­ing ap­point­ed chief jus­tice.

Pres­i­dent Robin­son an­nounced the ap­point­ment of Shar­ma to the of­fice of chief jus­tice on Ju­ly 10, 2002, short­ly af­ter those com­ments were made. Clear­ly, he used Pan­day's com­ments against him and it was con­strued by many as "con­sul­ta­tion."

There have al­so been fail­ures of con­sul­ta­tion where­by the Pres­i­dent got it com­plete­ly wrong. Such an ex­am­ple can be seen where for­mer pres­i­dent George Maxwell Richards ap­point­ed Jef­frey Mc Far­lane as deputy chair­man of the In­tegri­ty Com­mis­sion in May 2009 when Mc Far­lane was clear­ly and un­am­bigu­ous­ly in­el­i­gi­ble to hold such a po­si­tion.