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Trinidad Express
Swear one, get one free
January 20, 2002
By Denis Solomon
"A KIRPALANI government!" exclaimed a friend of mine when he read Attorney General Glenda Morean's assertion that the oath sworn by Patrick Manning's ministers at President's House was "two oaths in one".
In my column of January 6 I said that those non-elected individuals that the President had purported to appoint to Ministries were occupying their offices illegally. The Comptroller of Accounts should refuse to pay them. Ministers had to be Members of Parliament, and since there was no Parliament, the Manning ministers were illegal. This applied particularly to the non-elected ones. Although neither Chamber could be convened, at least the prospective Members of the House had been elected. But the President couldn't swear anyone into a Senate to which no appointments had been made by the Opposition or by himself. I didn't add that in any case it was not the President's job to swear in Senators.
I don't know if the Solicitor General read my column, but on January 11 she advised the Clerk of the House of Representatives that Ministers cannot perform any duties and ought not to be paid until they have taken the oath of allegiance and the oath of office. The oath of allegiance, she added, can only be taken after the election of the presiding officers of the House and Senate. Kamla Persad-Bissessar jumped on the bandwagon.
The next day, however, the Solicitor General "cleared the air" (i.e. obscured it) by saying that the form of oath sworn by a Minister or Parliamentary Secretary contains both the oath of allegiance to Trinidad and Tobago and the oath for due execution of office. Once this oath is taken, "such persons can perform...and be paid". That was when Attorney General Glenda Morean said that the oath taken at President's House was "two oaths in one".
Ms Morean is learning fast. Her pronouncement is typical of the contemptuous statements with which politicians have consistently insulted the intelligence of the public. A glance at the First Schedule to the Constitution will show that in both the oath for Ministers and the oath for Members of Parliament, the individual concerned does swear allegiance to Trinidad and Tobago, the Constitution and the law. But in the first he swears to conscientiously discharge his duties as a Minister, in the second as an MP. The second starts with the words "I, A. B., having been elected/appointed a member of Parliament..."
Now, the Constitution says that to be a Minister you have to be a Member of Parliament. If the Ministerial oath was meant to serve the dual purpose claimed by Ms Morean, that last phrase would have been in the Ministerial oath too. Its absence is proof positive that the Ministerial oath can only validly be taken by someone who has sworn the Parliamentary oath, and thereby become a Member of the House of Representatives or the Senate.
Ministers are sworn in as Ministers by the President. In the case of MPs and Senators, the President merely issues the written instruments of appointment, and the oath of allegiance is administered at the first sitting of the respective Chamber, by the Clerk of that Chamber, after the election of the Speaker and the President of the Senate.
If the President of the Republic has ever purported to administer the Parliamentary oath and the Ministerial oath at the same time, as he may have done during the last Panday government, he has done so wrongly. If he has purported to swear in a Minister or Parliamentary Secretary who has not already taken the oath as a Member of the House of Representatives or the Senate, he has done so wrongly.
In normal circumstances all this would be a pure technicality. It wouldn't matter that the President was anticipating, or doing, the work of the Clerks, as long as it was certain that in a day or two the Chambers would convene, the presiding officers would be elected, and the "Ministers" would become MPs or Senators retroactively.
But the whole point is that the circumstances are not normal. The 18-18 tie has highlighted all kinds of anomalies that have passed unchallenged for years. For instance, the regular but undemocratic practice of appointing the Speaker before the Members of the House are sworn in. This aberration has always been a symbol of Parliament's lack of autonomy. In the last Parliament it was compounded by the Speaker, a defeated election candidate, entering the House fully robed, taking the oath, not as Speaker but as an "elected Member of Parliament", and then welcoming the really elected but still unsworn MPs, including the one who had defeated him.
The oath question is now important because it symbolises the infringement of the basic principle that Parliament is not only prior to government, but is the source of it. In times of difficulty, the only manipulation that the Westminster philosophy tolerates is manipulation that preserves that principle: an accommodation between the parties that enables a majority, however heterogeneous and however shaky, to emerge. Anything else is not parliamentary democracy, but dictatorship by lottery.
Copyright © Denis Solomon