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Trinidad Express
Letter of the law
January 16, 2002
By Denis Solomon
FORMER senator Martin Daly SC has given Messrs Panday and Manning the advice the President should have given them: get your asses in gear and start thinking about the welfare of the country.
Any effect that Senator Daly's letter has will depend as much on his prestige as on his reasoning (unfortunately, given the mentality of this country, probably much more on the former). As an Independent Senator he has no party axe to grind; and if re-appointment (to a so far non-existent Senate) is considered to be a prize worth having, Mr Daly has shown his lack of concern for that by his implied criticism of the President's decision.
Above all, though, Mr Daly's status as a Senior Counsel confounds all those tin-pot lawyers who, for reasons of illiteracy, wishful thinking, or outright partisanship have agitated on one side or other of the divide. He has also taken a firm stand in opposition to those columnists, editorial writers and political scientologists who, on the non-existent strength of Section 76 (b) of the Constitution, proclaim the legitimacy of the Manning government.
Let me digress and make this point for what seems to be the umpteenth time. Section 76 (b) empowers the President, if he considers there is no party commanding a majority in the House of Representatives, to appoint as Prime Minister the person who, in his judgment, is most likely to command the support of the majority of members of that House. People who argue the legality of the Manning government on that basis are saying the fact of the President choosing is proof he has judged Mr Manning to be likely to command a majority. Some people have told me so in so many words.
I can't think of a worse example of Alice in Wonderland thinking. Never mind the President was asked to choose precisely because neither of the men who asked him to choose could claim a majority. Never mind the President himself did not dare claim that was the basis of his choice, but instead waffled about moral and spiritual values. Never mind if the President had so judged he would have immediately summoned Parliament. Never mind the President has once before acted outside his powers, and admitted as much, in his attempt to dismiss Mr Raoul John from the EBC.
Anyone who claims the President saw the likelihood of a majority when nobody else, including the protagonists, could see it, is saying the President is a fool, but the decision of a fool is sacrosanct. It is obvious to me that if the President is a fool it is not because he saw something that wasn't there, but because he did something for which he had no authority, and which, worst of all, could do no good.
When I put these objections to one of my wishful-thinking acquaintances, his reply was that the President "must have thought" that a UNC MP was more likely to cross the floor than a PNM one! It is a hell of a Constitution that reduces its citizens to accepting the decisions of officials on the basis of what they "must have" thought.
But to return to former senator Daly. What is most important, from the point of view of the enlightenment of the public, is that despite the eminence from which he utters his legal opinions, he does not rely on them. The final nail he drives into the coffin of the Anand Ramlogans and the Glenda Moreans is that at bottom, the problem is not a legal, but a political one. Political legitimacy, he says, must take precedence over sterile legality. Mr Daly has also made a point that not only the politicians, but the entire population of this colonial-minded country have consistently failed to appreciate: the supremacy of Parliament as the source not only of the laws by which a government operates, but of the government itself, whether it be a majority or a minority one.
Mr Daly's proposal is that the parties go back essentially to where they were before Crowne Plaza. Get Parliament going by agreement, or, failing that, agree to summon it, dissolve it and set a date for elections. Earlier in the document, he says a proper agreement should have included revision of the electoral list, so presumably he is saying a new agreement should include that too. He does not say the election date, if one is necessary, should be soon; presumably, it must be sooner than Mr Manning has envisaged even if later than Mr Panday would like; the important thing is that it should be set.
Nor, wisely, does Mr Daly attempt to foresee any details the agreement may contain to enable Parliament to function. But the possibilities are clear enough, and were rehearsed by the more rational commentators before the Crown Plaza meeting. First, agreement on a Speaker. Then, Manning could fire one or two of his Ministers and replace them with UNC members; in other words, a coalition at executive level. If the UNC blocked legislation it would then be blocking its own legislation. Such a concession by the PNM would be extremely unlikely. The lesser alternative would be an agreement to permit free voting. And finally, if it is the only way the Parliament can live out its term, or if both sides can agree that electoral reform cannot be achieved overnight, and/or that the next election should be held under a different system, then alternating prime ministerships are the answer.
For this to happen, though, both sides would have to abandon their hidden agendas. Mr Manning's, it is said, is to gain enough time to be able to put Mr Panday in jail; Mr Panday's is to regain office at all costs in order to stay at large. In other words, the commissions of enquiry should be put on hold.
Mr Daly's letter does not consider what happens if another election throws up another 18-18 tie. It does not deal with the fact that any result at all is bound to be both close and accidental, determined as it would be by a few thousand votes going one way or the other in a couple of marginal constituencies. One or the other side would continue to feel itself disenfranchised.
Mr Daly says his arguments about the need for a functioning Parliament do not mean "that we do not need to consider again constitution reform, but until the rules of the game are changed the existing rules must be respected". He does not include the question of constitution reform among the subjects on which Panday and Manning should agree.
Perhaps he is right: if you want to get politicians to do something that is against the grain, you shouldn't spook them, in addition, with the prospect of the unknown. Or, perhaps, he feels that constitution reform is a long-term task. If so, I disagree: I could draw up a document incorporating the essential changes in weekend. The first thing would be provision, not for elections, but for meaningful elections. The rest would follow in the fullness of time. But possibly this is something neither Mr Daly nor I, but the population as a whole, must demand.
Copyright © Denis Solomon