President versus Prime Minister - Trouble Under The Sun In Trinidad

By The Hon Mr Justice Ken Handley AO

Address to 2002 ACM Luncheon, November 8, 2002, NSW Parliament House, Sydney, Australia

As released by ACM Office of Press Secretary

George Santayana wrote in 1905: "Those who cannot remember the past are condemned to repeat it" and Tallyrand said of the Bourbons: "They have learnt nothing and forgotten nothing". The recent Constitutional history of Trinidad and Tobago has lessons for Australia which I trust we will learn, and not have to repeat.

The former Crown colony of Trinidad and Tobago became an independent member of the British Commonwealth as a Constitutional Monarchy in 1962. It adopted a Republican Constitution in 1976 but has remained in the Commonwealth. It is located in the eastern Caribbean close to Venezuela and Guyana. Its population of some 1,300,000 is divided with 40 percent each of Indo and Afro-Caribbeans and the rest mixed.

Under the 1976 Constitution the President is elected for a 5 year term (s 33) by an Electoral College comprising the Members of both Houses of Parliament voting by secret ballot (ss 28, 29). He may be removed from Office on the grounds specified in s 35 namely:

(a) Wilful violation of any provision of the Constitution,

(b) Behaviour which brings his Office into hatred, ridicule or contempt,

(d) Inability to perform the functions of his Office by reason of physical or mental incapacity.

The procedure for his removal is defined by s 36. The first step is that one third of the members of the House of Representatives must sign a motion for his removal stating "with full particulars the ground on which his removal is proposed". A joint sitting of both Houses is then convened and the motion must be supported by not less than two thirds of the combined membership. A Tribunal comprising the Chief Justice and four other senior judges selected by him then investigates the complaint and reports the facts to the House of Representatives. Another joint sitting is then convened and if the motion for the removal of the President is then supported by the votes of not less than two thirds of the combined membership he is removed from Office.

A major difficulty with this procedure is that the President fixes the times when Parliament meets (s 67) and he prorogues or dissolves Parliament acting on the advice of the Prime Minister (s 68). Section 80(1) requires the President to act in accordance with constitutional advice, but sub s (2) prevents any court from enquiring whether he has done so and s 38(1) provides that he shall not be answerable in any court for the performance of the functions of his office or for any act done by him in the performance of those functions. Thus there is no legal remedy against a President who acts unconstitutionally.

The constitutional process for the removal of a President is both difficult and slow. The requirement that motions be supported by not less than two thirds of the combined membership of both Houses will be difficult to achieve and impossible if the major parties are split on the issue. Meanwhile the President remains in office and can continue to act unconstitutionally. If the President is acting in a partisan manner against the Government the Opposition is likely to support the President and this is what happened in Trinidad.

After independence various Afro-Caribbean parties held Office until the November 1995 General Election when the Indo-Caribbean United National Congress (UNC), led by Mr Basdeo Panday, formed a coalition government with the NAR which won the two seats for Tobago. One of its members was Arthur Robinson, an Afro-Caribbean barrister who had been Prime Minister between 1985 and 1990.

In March 1997 Arthur Robinson was appointed President. The problems between the Prime Minister and the President appear to have begun in January 2000. Two of the government nominated Senators voted against the government to defeat one of its Bills. On 17 January the Prime Minister advised the President to exercise his power under s 43(2)(e) of the Constitution and remove those Senators and appoint others in their place. The President at first refused to act on the Prime Minister's advice, but after about three weeks he finally did so. The Prime Minister had been within his constitutional rights in tendering that advice to the President, as the latter ultimately acknowledged, but in the meantime the business of Parliament had been suspended.

In a public statement the Prime Minister said that since Independence there had not been any political intervention by a President in what was "clearly an intra-party political concern", nor any departure from the letter of the Constitution ("The Parliamentarian", April 2000).

The UNC led by Panday won the next General Election on 11 December 2000 but problems began immediately. The Opposition, the People's National Movement (PNM), led by Mr Patrick Manning, announced that they would challenge the results in two seats which had given the UNC its majority. As a result the President did not commission Mr Panday to form a new government for nine days and he then refused to appoint more than one other Minister. He appointed other Ministers two days later, but still declined to appoint the two members whose elections were challenged. They were not appointed until 3 January.

By that time a problem had emerged concerning the 16 Senators to be appointed by the President on the nomination of the Prime Minister under s 40(2)(a) of the Constitution. Seven of the Prime Minister's nominees had stood unsuccessfully for seats in the House of Representatives in the recent General Election. The Prime Minister wanted to appoint one of those as a Cabinet Minister and some of the others as regular Ministers. The President declined to make these appointments and in a televised address to the nation on 5 January 2001 he said that it was inappropriate for persons who had been rejected by the electorate to form part of the government, and that it was unprecedented for seven such persons to be appointed to the Senate ("Saturday Express", 6 January 2001).

The President relied partly on the Preamble to the Constitution and partly on the principle that statutory powers can only be validly used in a right and proper way, but said that he was "open to correction" by a legal opinion. In 1962 Trinidad and Tobago adopted, as part of its new Constitution, a lengthy Preamble full of political motherhood statements. The use of the Preamble by President Robinson in January 2001 to justify his unconstitutional conduct showed the wisdom of the Australian people in rejecting a similar Preamble at the 1999 Referendum.

The Attorney-General, the Hon Ramesh Maharaj, publicly criticised the conduct of the President and the government obtained legal opinions to answer the President's concerns. On 20 January the Attorney-General released the opinion of a Professor Bradley from the UK, on 25 January the opinion of Sir Godfray Le Quesne QC of the English Bar, on 27 January the opinion of Professor Sir William Wade QC of the United Kingdom and on 3 February the opinion of Justice P N Bhagwati, a former Chief Justice of India.

Finally on 14 February, more than two months after the General Election, the President agreed to appoint the Prime Minister's nominees. In the interim Parliament had not been able to meet and as the legal and political commentator and independent Senator Dana Seetahal wrote in the "Sunday Guardian" on 11 February, things remained "at a standstill… because everything is on hold. Is this the way to run a country?".

On 18 February she wrote in the same paper that it had been said that the President, by backing down, had led his supporters up the garden path and added: "A President in our system is not supposed to have any supporters in a political sense, since he is expected to be above partisanship. Many of the so-called supporters of the President… were really people who were… anti UNC… He was the hero of the anti-government forces".

The constitutional problems in Trinidad and Tobago did not end with the appointment of the government Senators, but there is no need to refer to the subsequent history. Enough has been said to illustrate the problems that can arise when one grafts a republican President into a constitution framed for a Westminster system of government under the Crown.

The 1976 Constitution of Trinidad and Tobago substituted a President elected by the Parliament for the Governor-General who had been the executive Head of State under the 1962 Constitution. The President retained the powers of the Governor-General, including the power to assent to Parliamentary legislation (s 61(1)), the executive authority of the State, with the command of its Armed Forces (s 74), and the power to appoint and dismiss the Prime Minister and other Ministers (s 76). In these respects the 1962 and 1976 Constitutions of Trinidad and Tobago are indistinguishable from our own 1901 Constitution.

The President is required to exercise his extensive powers on the advice of the Prime Minister and other Ministers. However, as we have seen, his duty to act on constitutional advice which is spelled out in the Constitution is not enforceable. The only sanction is removal from Office by a process which is slow and difficult.

During the two months' stand off following the December 2000 General Election the President was publicly supported by the Opposition who were not likely to vote for his removal. In any event the constitutional machinery for the removal of the President was unworkable because the Senate had not been fully constituted and was unable to meet.

The Australian Republican Movement took to the 1997 Constitutional Convention the so-called minimalist model which replaced the Queen and the Governor-General with a President to be appointed and removed by a two thirds majority of the Parliament in a Joint Session. By the end of the first week the wheels had fallen off this model and the ARM were in trouble. The debate had demonstrated that the only remedy for unconstitutional conduct by the President would be removal from Office and it would be too hard to do this.

Over the intervening weekend the ARM swung to the other extreme to make it too easy to dismiss the President. They proposed a new model under which the President and the Prime Minister could each dismiss the other at will. This was the model which the people of Australia rejected three years ago this month. The ARM had not done their homework before the Convention, and then attempted to frame a new Constitution over a weekend. This was no way to amend a Constitution that had worked well for nearly a hundred years and was nine years in the making.

The recent events in Trinidad and Tobago have demonstrated in practice what was always clear in principle. The 1962 Constitution, like our own, was designed for a Constitutional Monarchy. An appointed Governor-General has, and in the case of Trinidad and Tobago had, wide powers which could be exercised to delay or frustrate the will of the people expressed in democratic elections. However these powers vested in an unelected official are part of a working democracy because they are exercised on the advice of the democratically-elected government. A Governor-General only exercises his powers at his own discretion in extraordinary circumstances, such as those which occurred here in 1975.

The sanction for constitutional misbehaviour by a Governor-General is dismissal by the Queen. Governors-General hold office at the pleasure of the Queen and can be summarily dismissed. In practice the process would take some weeks because the relevant Prime Minister must tender formal advice to the Sovereign in writing, making a proper case for the dismissal. The papers have to be sent to London and the Queen must be allowed enough time, having regard to her other commitments, to consider the papers and if necessary to discuss the matter with the relevant Prime Minister over the telephone.

No Australian Governor-General has ever been dismissed by the Sovereign but no Australian Governor-General has ever acted unconstitutionally. I don't suggest that any of our Governors-General have been tempted to misuse their powers but they knew they held office at the pleasure of the Sovereign. Because the power of dismissal was there it has never had to be exercised.

Occasions for the exercise of the Queen's power to dismiss a Governor-General arose in Papua-New Guinea in 1991 and in Tuvalu in 1993. I referred to these precedents in a paper I gave on 22 October 1996 which is on the ACM website. The Governor-General of Papua-New Guinea, who refused to act on constitutional advice from the Prime Minister and do his duty, eventually resigned but not until a senior civil servant had been despatched from Port Moresby for London with the necessary papers. The poor fellow only got as far as Singapore before he was recalled. Following a general election in Tuvalu the Governor-General, who had been appointed by the government which lost office, refused to act on constitutional advice from the new Prime Minister. He was acting as if he was a President but when he was told that he could be dismissed by the Queen he promptly resigned.

The speedy resolution of the constitutional difficulties created by recalcitrant Governors-General in those two countries demonstrates how well a constitutional monarchy like ours works. There was no effective mechanism for resolving the constitutional difficulties created by a recalcitrant President in Trinidad and Tobago.

The problems inherent in the Republican Constitution of Trinidad and Tobago did not emerge for twenty four years, but the potential was always there waiting for the right, or I should say the wrong, combination of President and Prime Minister. The tradition of non-political service to the non-political Crown will gradually weaken in a republic and it is not surprising that it took a while for the problems to emerge. When they did emerge it became crystal clear that there was no simple remedy, indeed no remedy at all, and the problems dragged on until the President relented. There may come a day when a President of Trinidad and Tobago does not relent. On the other hand there are nine Constitutional Monarchies in the Caribbean which have never had constitutional problems with their Governors-General.

The clear lesson for Australia is that one cannot responsibly graft a Republican President onto a Westminster Constitution which was designed to work and can only properly work under a Constitutional Monarchy. A Republican Constitution for Australia cannot leave the President with all the powers conferred on our Governor-General. If Australia ever becomes a republic and we have ignored the lessons from the history of Trinidad and Tobago sooner or later there will be constitutional problems with a President for which there will be no simple remedy. Those who propose a Republican Constitution for this country must do their homework and make proper provision so that neither the President nor the Prime Minister are tempted to act unconstitutionally and there must be a speedy and simple remedy if they do. Minimalist amendments would condemn this country to repeat the lessons from history.

Due acknowledgement should be given when quoting from material on this Site