Former CJ: President cannot refuse to give assent to a Bill

Though the Constitutional (Amendment) Bill 2014 has not been through its final legislative stage as yet, commentators have already begun to air views on the question of whether President Anthony Carmona can refuse to assent the bill.

De la Bastide said the President must act in accordance with Section 80 of the Constitution which states that all of the President’s powers are exercised on the advice of Cabinet. He said while Section 61 of the Constitution states the President may assent or withhold assent to a bill, that power must be exercised in conformance with Section 80. He further stated that the Constitution is based on the UK’s unwritten Constitution, with the President having a role akin to that of the Monarch.

“I don’t think the President has a discretion. You must not lose sight of the fact that this Constitution did not drop from Heaven,” the former Chief Justice and former member of the Wooding Commission which made recommendations on the Republican Constitution said. “It is based on the UK constitution and the Queen is the one to assent bills in that system. However, nobody in Britain is crazy enough to suggest that the Queen can opt to not assent a bill.”

Section 61 of the Constitution states, “(1) Subject to the provisions of this Constitution, the power of Parliament to make laws shall, except where otherwise authorised by statute, be exercised by Bills passed by the House of Representatives and the Senate, and assented to by the President. (2) When a Bill is presented to the President for assent, he shall signify that he assents or that he withholds assent.”

Section 80 of the Constitution states, “80. (1) In the exercise of his functions under this Constitution or any other law, the President shall act in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet, except in cases where other provision is made by this Constitution or such other law, and, without prejudice to the generality of this exception, in cases where by this Constitution or such other law he is required to act—(a) in his discretion....”

De la Bastide said Section 80 is the overriding provision as it explicitly deals with the President’s functions. He said the option to assent or withhold assent actually must be exercised on the advice of Cabinet. There may well be instances where the Cabinet may advise the President to withhold assent of a bill, he said, if the Cabinet would like more time before a law comes into force.

“The granting of a function to the President does not imply that an exception is being created to the general rule that he must act on the Cabinet’s advice,” de la Bastide said. “It merely gives him an occasion for acting on the advice of the Cabinet.”

De la Bastide continued, “the President’s function under Section 61 to either indicate his assent or withhold it. When he withholds it, that is a function under the Constitution which he is exercising therefore he is caught by Section 80 which is the dominant provision.”

The former Chief Justice said an exception to Section 80 could not be generated by implication.

“There must be something express which says in the exercise of his function he is not required to act in accordance with the advice of Cabinet,” de la Bastide said. “You cannot by implication limit the application of Section 80.”

Former Chief Justice Satnarine Sharma yesterday said a president could not stymie the will of elected members of the House of Representatives after a bill has gone through due process.

“If a bill goes through due process in Parliament, approved by the people’s representatives, how could he stultify that by withholding assent. That is the will of the people. There is no such Constitutional power,” the former Chief Justice said. “I doubt a President can do that, particularly as he is not an elected official. He cannot stultify the will of elected representatives, he has to assent. A president should assent, otherwise resign.”

De la Bastide noted there was a time when the English Monarch withheld assent. The last such instance was in 1708 when the last Stuart Monarch, Queen Anne, withheld assent from a bill for the settling of Militia in Scotland. On that occassion, the Queen acted on the advice of her ministers.

In 1914, George V sought legal advice on withholding Royal Assent from the Government of Ireland Bill. The King assented the bill. He decided he should not act otherwise unless there was, “convincing evidence that it would avert a national disaster, or at least have a tranquillising effect on the distracting conditions of the time.”