Touching a Nerve

By Selwyn R. Cudjoe
December 20, 2001

Kamla Persad-Bissessar, AG, has suggested that my advice to the President Arthur Robinson has been "ill-informed, inaccurate and misleading" (Newsday, Dec., 18; Express Dec. 17). None of these newspapers published my advice to the President vis-à-vis, the analogy to the 1974 situation in England. This makes it difficult for the public to judge whether the AG's statement constitutes a considered refutation of my position. To disabuse any noting that the AG has refuted my argument, I reiterate its central contention and then respond to the AG's claims.

In our letter to the President, the Concerned Citizens of Trinidad and Tobago made the following arguments:

Patrick Manning should be appointed Prime Minister of T&T;
Basdeo Panday, should not be appointed because he requested that the House be resolved and called an election to seek a new mandate that was not given;
When no single Party commands a majority, political judgment and assessments of character are as important as Constitutional doctrine and should play a determinative role in selecting a PM;
Although there is no direct analogy to the current situation that exists in T&T, the UK situation of February 1974 may be useful in our present context
In 1974, the Conservative Party won more votes than the Labour Party (37.8 % to 37.1%) but the Labour Party won four more seats. However, no party commanded a majority. In the circumstances, the outgoing Conservative Prime Minister, Edward Heath, spent a few days trying to pull the Liberals into a coalition without success. However, the Queen never asked Mr. Heath to try to form a government, but turned to Labour. This was done in part because the Conservatives had not won when they called the election and had all the advantages of incumbency.
The same logic might well hold for T&T. Since the selection of the PM is the personal prerogative of the President and falls within his sole, deliberative judgment, we believe that it is well within his right to exercise his discretionary powers to appoint Patrick Manning as PM. This is the substance of what we offered the President. The AG, responds: "it was only after the resignation of Prime Minister Edward Heath in 1974…that the Queen called upon Labour Party Leader, Harold Wilson, to form the government as it was the party with the largest number of seats." Our letter acknowledges that Labour had four more seats than the Conservatives. We differ with the inference of the first sentence. The AG continues: "under the British Westminster system, the Prime Minister does not need to be reappointed after a general election, but is entitled to meet Parliament to consider whether a majority can be secured in the House of Commons." This is not true.

After an election in the UK, the outgoing PM is not entitled to meet with Parliament to see whether s/he can secure a majority in the House of Commons. Each new Parliament is faced effectively with a new Government. This is so because in all circumstances the outgoing PM must place his office at the disposal of the Queen. Where no single party commands a majority, the Queen has extensive discretion. Any presumption that T&T's PM at the time of the election should stay on in office was satisfied by his failed opportunity to secure any such agreement with the PNM. This failure, like Heath's failure to secure a multiparty majority in 1974 underscored the inescapable, determinative role of the Queen and, in our context, that of the President of T&T. It should be noted that the selection of the PM is entirely a matter of the Queen's "personal prerogative." In practice she is constrained to choose a PM who appears likely to command a majority in the Commons. If Mr. Heath were able to construct a majority the Queen would have had no choice but to call on him to form the government even though he got fewer seats than Mr. Wilson. The fact was: no party possessed an absolute majority. Incumbency gave Mr. Heath no right the Queen was bound to respect which is why she never asked him to form a government. Precisely because the situation was unclear, the Queen did not to call the incumbent.

Section 77 (2) of the T&T's Constitution states: "The Prime Minister shall also vacate his office, when after any dissolution of Parliament he is informed by the President that the President is about to re-appoint him as Prime Minister or to appoint another person as Prime Minister." This implies that the PM's tenure ends at or after the election. If he wins the election he must still resign and be re-appointed. This replicates the UK situation in which each new Parliament is faced effectively with a new Government.

It is clear Mr. Heath had to look around to see if he could construct a majority. There was no assumption of entitlement on his part nor, for that matter, was there any option of calling Parliament to find out if he could find a majority. He resigned because he could not construct a majority. In fact, the British press roundly criticized Mr. Heath for not resigning immediately after the election. He possessed no entitlement except that which a majority would have given him.

In our letter to the President, we recognized the T&T situation differs from the UK of 1974 and concluded that the Queen bypassed Mr. Heath "in part because the Conservatives had not won when they called the election and had all the advantages of incumbency. The same logic might well hold for Trinidad." Since no one knows what was in the Queen's head, the latter seems a logical conclusion.

As the country gets ready to rid itself of the pestilence of the UNC, desperation seems to be written all over the AG's script. She has offered no evidence that demonstrate "the 1974 situation in England are a total rebuttal to Cudjoe's representation to Robinson." Moreover, the alacrity with which she responded to our letter to the President suggests I might have touched a nerve. Yet, hasty sound bites are a poor substitute for deliberative judgment that will soon decide our country's fate.

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