Veto in a vacuum

The issue of the veto given to the Prime Minister in the constitution is the subject of debate again. Mr Manning asserts that the framers of our constitution deliberately gave an unconditional veto to the PM and no reasons were required. He could exercise the veto in a vacuum.  Section 121 of our constitution gives the PM a veto over appointments to the offices of Permanent Secretary, Chief Technical Officer, Director of Personnel Administration, heads of all government departments, chief professional advisers in all ministries, and deputy to any of these offices.

The exercise of the veto by PM Manning has been challenged in three cases by public servants, Devant Maharaj, Feroza Ramjohn and Gangapersad Kissoon. In Devant’s case, the court ruled that the PM purported to exercise a veto where none existed in law. In the latter two cases, it is undoubted that the PM has a power of veto. The Court of Appeal reserved judgment in Ramjohn on March 12, 2008, and in Gangapersad on May 26, 2008.  It has been a long and tiresome journey for justice for these clients, as Mr Manning had exercised his veto against Ramjohn in June, 2004, and Gangapersad in January, 2005.

It is said that judicial review and constitutional cases must be heard and determined expeditiously, because it is unfair to good public administration and the claimant to prolong the suspense caused by the challenge to official action. In T&T, our overburdened court system is, sadly, unable to give priority to such cases.  That said, it is scandalous that these matters have meandered along in the system to the point where there may very well be no real justice for my clients, because they may be retired or dead by the time the case is finished (here, or in the Privy Council).

In these cases, I argued that the PM must exercise the veto fairly and rationally, for a proper purpose. The duty to give reasons was implicit in the veto and the overriding concept of fairness in public and constitutional law. It is hoped that these judgments will shed some light on whether the PM acted fairly in vetoing the appointment of these officers and offer some much-needed guidance on a vexing and troublesome area of our constitution. The cases have assumed an even greater sense of urgency, in light of Mr Manning’s statement in Parliament that he is not required to give any reasons.

What if the PM exercises the veto for an improper purpose, such as ensuring the appointment of a political friend who may be in the running, or blocks someone’s appointment on the ground of religion, race or gender? How would the unreasoned veto sit with the citizen’s entrenched and overriding constitutional right to equality of treatment? Can we reconcile both? Is the veto a trump card that can hang the jack of equality? The Constitution Commission chaired by Sir Hugh Wooding and Telesford Georges in 1974 recommended the removal of this veto. The report, at paragraph 385, pointed out that “The functions of the Judicial and Legal Service Commission, as the body appointing judges and magistrates, demand that its total independence of the executive should stand out’. The Sir Isaac Hyatali-led Constitution Commission in 1987 made a similar recommendation.

It also dealt specifically with the appointment of the DPP in paras 2220-222, where it stated: “The status of the DPP and his crucial role in ensuring the fair, fearless and impartial pursuit of prosecutions and their withdrawal in appropriate cases” and the “inviolable principle that of justice that it must not only be done, but must manifestly be seen to be done, and the invaluable rule of conduct established for all prosecutors in courts of laws that they are ministers of justice and not persecutors of alleged wrong-doers requires the clearest expression in the constitution of the independence of the DPP and his freedom from the direction or control of any other person or authority.”  Two constitution commissions, led by two distinguished chief justices and comprising distinguished and esteemed persons, have recommended abolition of this Prime Ministerial veto. Interestingly, Mr Michael de la Bastide, (also a former CJ and now President of the CCJ), was a member of both commissions as well.

If people take the time to read these two reports, they would realise that there is very little need for debate on constitutional reform, because there is no need to re-hash the same trite arguments that have been expertly dealt with by these two commissions. The call for debate about constitutional reform and public consultations is nothing but a delay tactic and a cheap political ploy. The veto should be removed. It is dangerous and unfair, and undermines the concept appointments based on merit by independent bodies. It is capable of misuse and abuse, and could convert the hierarchy of the public service into an even bigger PNM party group.

By Anand Ramlogan 2009-02-22 02:50