DR HAMID GHANY

This col­umn is be­ing writ­ten pri­or to the sit­ting of the Elec­toral Col­lege that would have elect­ed Jus­tice An­tho­ny Car­mona to be the fifth Pres­i­dent of the Re­pub­lic of Trinidad and To­ba­go. This will pro­vide a one-month pe­ri­od dur­ing which time there will be a tran­si­tion from Pres­i­dent Richards to Pres­i­dent Car­mona.

As with pre­vi­ous tran­si­tions, there are like­ly to be is­sues that will arise that may or may not be­come con­tro­ver­sial de­pend­ing up­on how they are han­dled. The man­age­ment of any tran­si­tion process is a func­tion of the per­son­al in­ter­ac­tion be­tween the var­i­ous of­fice hold­ers (the in­com­ing, the out­go­ing and oth­ers).

In 1987, there was no con­tention be­tween the out­go­ing pres­i­dent El­lis Clarke and the in­com­ing pres­i­dent Noor Has­sanali, but there was clear ten­sion be­tween prime min­is­ter ANR Robin­son and pres­i­dent El­lis Clarke about whether the pres­i­dent should or should not make an ap­point­ment to the Ju­di­cial and Le­gal Ser­vice Com­mis­sion on the eve of his de­par­ture to fill the va­can­cy caused by the res­ig­na­tion of Noor Has­sanali who had be­come the Pres­i­dent-elect.

As Clarke was due to trav­el to the Unit­ed King­dom on March 15, just four days be­fore he demit­ted of­fice, the is­sue arose over whether he should fill the va­can­cy or whether it should be left to the act­ing pres­i­dent, Michael Williams, to make the ap­point­ment dur­ing the four-day hia­tus be­tween El­lis Clarke's de­par­ture and the end of his term on March 19, 1987.

El­lis Clarke in­sist­ed that he was not go­ing to leave any va­can­cies un­filled be­fore he demit­ted of­fice and he ap­point­ed for­mer chief jus­tice Ce­cil Kel­sick as a mem­ber of the Ju­di­cial and Le­gal Ser­vice Com­mis­sion for a pe­ri­od of three years with ef­fect from March 15, 1987. Pres­i­dent Clarke trav­elled to Lon­don lat­er that night. From my sev­er­al per­son­al meet­ings and in­ter­views with the late pres­i­dent Clarke, I was able to get an in­sight in­to the sit­u­a­tion from his per­spec­tive.

The in­com­ing pres­i­dent, Noor Has­sanali, did not wish to fill his own va­can­cy and he pre­ferred that it be filled be­fore he as­sumed of­fice. Pres­i­dent Clarke was be­ing asked not to trou­ble him­self with the bur­dens of con­sul­ta­tion to fill the po­si­tion on the eve of his de­par­ture and that it would cer­tain­ly be filled be­fore his of­fi­cial term end­ed (this was not told to him by Michael Williams but by an­oth­er per­son).

Pres­i­dent Clarke was adamant that he in­tend­ed to fill the va­can­cy be­cause it oc­curred dur­ing his term as pres­i­dent and that he would per­son­al­ly at­tend to it.

This con­tro­ver­sy came a cou­ple of months af­ter an­oth­er con­tro­ver­sy that end­ed up in the courts be­tween prime min­is­ter Robin­son and pres­i­dent Clarke when the for­mer ac­cused the lat­ter of not con­sult­ing him over the re-ap­point­ment of James Al­va Bain as a mem­ber of the Pub­lic Ser­vice and Po­lice Ser­vice Com­mis­sions for a fur­ther pe­ri­od of three years from De­cem­ber 31, 1986.

The col­lec­tive ef­fect of all of these pres­i­den­tial con­tro­ver­sies led to the ap­point­ment of a Con­sti­tu­tion Com­mis­sion in June 1987 chaired by Sir Isaac Hy­atali.As Jus­tice Car­mona pre­pares him­self for as­sum­ing the Of­fice of Pres­i­dent on March 18 in­stant, there are two mat­ters that have arisen in the pub­lic do­main. One has to do with the ap­point­ment of mem­bers of the In­tegri­ty Com­mis­sion (oth­er than the chair­man) and the oth­er has to do with the con­tin­u­ance of the in­de­pen­dent sen­a­tors in of­fice.

In re­spect of those mem­bers of the In­tegri­ty Com­mis­sion whose term of of­fice will end, Pres­i­dent Richards has the op­tion of mak­ing those ap­point­ments or de­fer­ring them as their ter­mi­na­tion date is March 15. These ap­point­ments fall prop­er­ly with­in the re­mit of Pres­i­dent Richards and he is ful­ly en­ti­tled to make the ap­point­ments if he so de­sires.

Any is­sue with re­gard to de­fer­ral may arise dur­ing the con­sul­ta­tion process that will in­volve both the Prime Min­is­ter and the Leader of the Op­po­si­tion. How­ev­er, the ter­mi­nal point of the con­sul­ta­tion process is that the fi­nal de­ci­sion al­ways rests in the hands of the pres­i­dent to act in his sole dis­cre­tion.

In oth­er words, Pres­i­dent Richards will make his own de­ter­mi­na­tion as to whether he will make sub­stan­tive ap­point­ments to the In­tegri­ty Com­mis­sion or whether he will de­fer the mat­ter for the at­ten­tion of the new pres­i­dent.

As re­gards the is­sue of the in­de­pen­dent sen­a­tors, sec­tion 40(2)(c) of the con­sti­tu­tion is ex­plic­it that these ap­point­ments are to be made by the Pres­i­dent act­ing in his dis­cre­tion. Over the years, the op­por­tu­ni­ties for changes to be made to the in­de­pen­dent bench­es as a con­se­quence of a pres­i­den­tial tran­si­tion have been few and far be­tween.

In 1987 there was the Clarke/Has­sanali tran­si­tion just two months af­ter the new Par­lia­ment as­sem­bled for the first time. In 1997 there was the Has­sanali/Robin­son tran­si­tion 16 months af­ter the Par­lia­ment first as­sem­bled. In 2003 there was the Robin­son/Richards tran­si­tion just five months af­ter the Par­lia­ment first as­sem­bled.

The Richards/Car­mona tran­si­tion will take place ap­prox­i­mate­ly 33 months af­ter this Par­lia­ment first as­sem­bled. Good gov­er­nance prac­tices ought to dic­tate that the in­de­pen­dent sen­a­tors would of­fer their res­ig­na­tions to the new Pres­i­dent for his dis­cre­tionary re­view.