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Colander Constitution
October 09, 2001
By Denis Solomon
Those lawyers, both courthouse and barrack-room, who are busily urging the President to stick to what they call the letter of the Constitution, rather than invoke the basic principles of parliamentary democracy, do not seem to know that the letter of the Constitution is not as precise as their arguments suggest.
There are several areas in which the invocation of the letter of the Constitution leaves as much scope for interpretation as does the opposite view.
Let us look at some of them. Follow closely, for the arguments are subtle.
First, the infamous Section 76 (1), which contains the phrase "when the occasion arises for the appointment of a Prime Minister". The Pandayites, as well as some presumably impartial commentators, maintain that such an "occasion" does not include the loss of a majority. The section, they say, refers to the appointment of a Prime Minister but not to the dismissal of one. Therefore, the argument runs, only a resolution of no confidence, under Section 77, can constitute such an occasion.
Not even the most diehard Pandayites would deny, however, that the dissolution of Parliament, followed by an election, is the basic "occasion" for the appointment of a Prime Minister. Yet the Constitution does not say so! Why? Obviously, because it doesn't need to. If a Constitution says that there shall be a Prime Minister (75 (2)), and that after a dissolution there is no Prime Minister (77 (2)), then obviously there is an "occasion" for the appointment of one.
Obviously, but not explicitly. From which it follows that if the articles concerning dissolution and election must be imperatively interpreted as constituting the "occasion" for appointment, separate and apart from the question of votes of no confidence, why then should the article describing the requirements for such appointment, namely majority support in the House, not be interpreted with equal force as defining such an "occasion", when the requirements no longer exist?
The next point is based on the very valid mathematical and logical concept of reductio ad absurdum. Here it is:
No one would deny that an "occasion" for the appointment of a Prime Minister would arise if a Prime Minister resigned from his office, even if that resignation was not the result of a vote of no confidence. But another surprising fact is that the Constitution makes no provision for resignation of the Prime Minister, except after such a vote! It might therefore be argued that that the Constitution forbids the Prime Minister to resign, except under Section 77. Ridiculous, of course.
But consider. The Pandayites are arguing that the existence of a provision for the dismissal of the Leader of the Opposition but not of the Prime Minister means that the latter cannot be dismissed.
They must also then accept that absence of provision for his resignation means he cannot resign either.
Which, as the mathematicians say, is absurd. So, if he can resign without a resolution of no confidence, which obviously he can, he can also be dismissed without one.
The existence of a provision for the removal of the Leader of the Opposition when he no longer commands the support of the largest minority brings into play another principle of logic: the argument a fortiori. If it is imperative for the second largest group in the House to be always under the official leadership of the person of their choice, how can the same not apply to the largest group? It is therefore more logical to interpret the existence of a provision for dismissal of the Opposition Leader as an analogy for the dismissal of the Prime Minister than as a prohibition on it.
The view that if the President fires Panday except under Section 77 he will be exceeding his powers does not take into account an argument suggested by Attorney-at-law Reginald Armour, on the occasion of the President's refusal to appoint seven defeated election candidates to the Senate. Armour's argument was that although the Constitution purports to set limits to the President's powers, it also lays down, in Sections 35 and 36, a procedure for taking him to task if he is thought to exceed those limits.
But, as Armour points out, any provision for challenging the President's actions implies that he might justify them. And if appointing a government is an infringement of a President's powers, what stronger justification could that President have than respect for the basic principle of parliamentary democracy? Especially since the final arbiter in the case would be the Parliament. By condemning him the Parliament would, by implication, be denying the principle of majority rule.
There is an even more far-fetched argument against depending solely on a resolution of no confidence to get rid of a Prime Minister. Note that the Constitution speaks of a resolution of no confidence in the Prime Minister, not in the Government. It also stipulates that the major requirement for appointment of a Prime Minister is leadership of the majority party. It is therefore perfectly conceivable that Parliament might pass such a resolution calling for the dismissal of the Prime Minister even though his party retains the majority. He would then retire to the back benches, and the party would elect a new leader who would become Prime Minister.
This is ridiculous, but I believe it once happened in Barbados. In our present situation, of course, the Prime Minister's party has lost its majority. But the Pandayites say specifically that that is not grounds for dismissal. Which means that if Parliament adopted a resolution of no confidence in Mr Panday, the UNC parliamentarians could simply elect a new leader, who would have to be removed by another vote of no confidence, and so on until all 16 UNC MPs had been elected, impeached and dismissed.
I do not raise these points to support the anti-Panday view. Unless the process of replacement lifts us to a higher political plane, Manning plus Ramesh will be no better than Panday plus Ramesh, and maybe even worse. I make the points to show that the Constitution, like any Constitution, is as leaky as a sieve.
As the President himself said in his televised address to the nation on the matter of the appointment to the Senate of the defeated election candidates, laws cannot cover everything. The Constitution is a framework for the conduct of the nation's affairs, not a source of solutions to fundamental political problems. Any attempt to use it as such merely demonstrates the limitless scope it provides for partisan sophistry.
Copyright © 2004 Denis Solomon