THE AG DOES IT AGAIN – demonstrates a lack of understanding of basic constitutional law principles

Honourable Attorney General Faris Al Rawi

Yet again, the Honourable Attorney General has demonstrated that he does not understand basic constitutional law principles when he stated erroneously that the fact that the SSA Amendment Bill was assented to by His Excellency must mean “he [the President] thought it must be good law”.

Presidential assent simpliciter does not mean that the President thought the Bill presented to him for assent is good law. The fact is that whether it is good law or bad law in his thoughts, the President has no choice but to assent to same unless he is advised by Cabinet or a Minister authorized by Cabinet to withhold assent.

The exercise of presidential functions under section 61(2) of the Constitution to assent or withhold assent to a Bill has nothing to do with whether, in the thoughts of the President, the Bill is good law or bad law. Instead (as specified in section 80 of our Constitution) it has everything to do with the President acting in accordance with the advice of the Cabinet or the advice of a Minister acting under the general authority of the Cabinet. In other words, the conjoint effect of sections 61(2) and 80 of our Constitution is that the President can only assent or withhold assent to a Bill when he is so advised by the Cabinet or by a Minister authorized by the Cabinet.

As reported in the Newsday, former Chief Justice Michael de la Bastide correctly pointed out that Section 61(2) must be read in light of Section 80 of the Constitution. Therefore, whilst on the face of it Section 61 (2) states a President may withhold assent, this is subject to other provisions of the Constitution that make it plain that the President, generally, acts on the advice of Cabinet. The former Chief Justice also said that the drafters of Section 61(2) may have envisioned a situation where the Cabinet advises His Excellency to withhold assent for whatever reason.

This is the second time in two months that the erroneous views of the Attorney General collide with the views expressed by the former Chief Justice. The other occasion was when the Honourable Attorney General made the infamous statement that the people of our country have no right to privacy. Of course, this was rightfully disputed not only by the former Chief Justice de la Bastide but also by the Dean, Faculty of Law, Professor Rose-Marie Belle Antoine. I much prefer to rely upon the views of the distinguished former Chief Justice and Professor.

This latest statement by the Honourable Attorney General maybe a desperate attempt to hoodwink the population into believing that there is support for the SSA Amendment Bill from the Office of His Excellency when, in reality, Presidential assent is a constitutional formality having nothing to do with the quality of the law passed by Parliament. The Constitution makes no accommodation for the views of His Excellency in granting or withholding Presidential assent.

If this latest statement and the ‘no right to privacy’ statement of the Attorney General were deliberate ploys to mislead and hoodwink the population, we have reason to be worried. If, however, the statements made were without any malicious design and simply the result of an ignorance of the law on the part of the Attorney General then we have reason to be even more worried.

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The Office of The Leader of the Opposition