Wrong, Anand
Anand Ramlogan, Attorney-at-law, holds the 'legal' opinion (in the Express of Jan. 03, 2002) that President Robinson was wrong to appoint Patrick Manning as prime minister given the 18-18 tie in December 10 general election. He rests the opinion on a 'plain and literal reading' of section 76 of the Constitution, which says that, where no party commands a majority in the House, the president shall appoint 'the member who in his judgment is most likely to command the support of the majority of members in (sic) the (sic) House.'
Ramlogan emphasises that a president can only consider one factor in the circumstances: 'who is most likely to command the support of the majority of MPs (sic)', but he submits that the 18-18 tie made it impossible for the president to choose someone since the result produced no one with majority support. He is wrong.
He is wrong on two grounds mainly. The first is that, in the expression of his opinion, he did not advert to part (a) of section 76 in either identifying or interpreting factors which a president is bound to consider. And the second is that he under-interpreted the lone factor (from part (b)) that he submits the president should have been constrained by.
In the appointment of a prime minister, part (b) of section 76 cannot be read apart from part (a). The two parts make a whole, and even if one part may be more relevant to a particular set of circumstances, a president - or anybody else, including Ramlogan - would at least have to eliminate the other part as being irrelevant; and to rule it out is to have considered it.
But part (a) is not irrelevant. It lays down the first basis for a prime minister to be elected, which is the two-part one that there must be a party with a majority in a (recently elected) House of Representatives and that there must be a member of that House who is the leader of that party. Part (a) requires the president to appoint the leader of the majority party as prime minister. Critically, it is silent on the president's possession or use of judgement in the matter; the president is bound to appoint the leader of the majority party, no other. In the relevant set of circumstances, President Robinson could not appoint anybody under part (a) because there was no majority party.
Part (b), which also has two parts, lays down a consequential basis and involves the president's judgment this time. It says that where there is a majority party which the president perceives to be without an undisputed leader, or where there is no majority party, the president is bound to appoint that member who, in his judgement, is most likely to command the support of the majority of members of the House. In the relevant set of circumstances, the president made an appointment.
Ramlogan under-interprets part (b). He construes it to be saying that there are circumstances, such as an 18-18 tie, in which the president cannot appoint a prime minister because there is no majority he or anybody else can see in a tie. But what he fails to consider is that the authors of part (b) anticipated a tie - it is there in the expression 'no party commands the support of… a majority' - and, accordingly, authorised the president to use his judgment. That judgment is to be used, not to make a majority out of an equality, but to give the country a prime minister on the basis of a private official discretion as to which member of the House is most likely to have the support of the majority of members in the situation of a tie.
Whatever the result of an election, part (b) requires that a prime minister be appointed, but because it factors in a tie as one of the possible results, it seeks to break that deadlock through presidential judgment.
Unlike Ramlogan (and other under-perceiving souls), President Robinson (and Manning and Panday, the latter initially) saw the critical value of his judgment in appointing a prime minister in the context of a tie. That is why he devoted a significant portion of his appointment speech to his ownership of his judgment, even though others may have helped him to form it. The tie did not make it impossible for him to exercise that judgment, only difficult.
In appointing Patrick Manning, did he make the right judgment? The question does not arise, for part (b) is not concerned with the rightness or wrongness of his judgment, only with the necessity that he should exercise his judgment. Using identical or different yardsticks, some of us will say that he made the right judgment and others that he did not. But our own judgments on his judgment are immaterial from a legal point of view, for the courts are not allowed to take him to task. The president could have appointed Panday and not provided any reasons why he had chosen him and not Manning; there is no requirement for him to provide reasons.
In presenting his opinion, Ramlogan misquoted the constitution (immaterially, some might say (see the sics above)) and under-quoted it as well (he left out part (a)), but it speaks to a carelessness of form which makes us suspicious about substance. Towards the end of the presentation of his opinion, he asks the hypothetical questions, 'What if the president had decided to ignore both of them [i.e., Panday and Manning] and appoint his [own] wife or son prime minister? Would this decision not be open to legal challenge?', and he goes on to answer in the affirmative. By asking such questions, Ramlogan has revealed that he is labouring under a serious misunderstanding.
In his scenario, the president would have violated the plain word of the constitution, for it expressly says that the prime minister must be a member of the House of Representatives. But even then the president would not have been open to legal challenge, for the constitution does not allow a court challenge; and it is instructive that Ramlogan does not point to any clause in it that allows such a challenge.
It is not the legal challenge that would be critical, but the political one. The president would have gone stark raving mad, and everybody would have hounded him out of President's House and the country!
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