Manning’s Appointment’s Inherently Provisional
Posted: Saturday, August 17, 2002
by Stephen Kangal
His Excellency President Robinson duly appointed The Hon. Patrick Manning as Prime Minister of T&T on December 24 last, two weeks after determination of the elections. Accordingly that appointment although deliberate-judgmental based was not impulse driven. However, from a constitutional perspective that decision had, by definition, ab initio an inherently de facto provisional de jure status.
I have carefully arrived at this thesis/conclusion having factored into the analysis the following relevant ecological circumstances:
The 18-18 hung parliamentary stalemate without a definitive clear majority leader;
the unpredictability of the proposed UNC/PNM collaboration immanent in the Crowne Plaza Accord and transmitted to President’s House;
the subjective judgment/criterion factored by His Excellency into the appointment- process as provided for in Article 76(1(b) of the 1976 Constitution that was dependent on a functioning Parliament to complete the process.
Critics should not be indulge in politically motivated semantics and deliberately confuse "appointed" with ‘selected" and "elected". Only beauty queens are selected. MP’s are elected. A Prime Minister is appointed by The President; not elected by the people.
Let it be recorded that I publicly called for, rationalised, supported and also defended The President’s decision to appoint Mr. Manning as PM in several letters/ commentaries published simultaneously in the Newsday and Guardian editions of Dec.14 and January 1 as well as in the Newsday of Jan. 10 and the Guardian of Jan.12 etc.
The subsequent necessary parliamentary validation of that provisional appointment was both time and event conditioned. It had by definition, to be subjected to and depended on parliamentary scrutiny/test to establish its constitutional validity unlike the recent 1995 and 2000 appointments which were premised on the application of the objective criterion provided for in Section 76(1)(a). That was the clear intention of the architects of the Constitution. Hence the provisional appointment status inherent in Mr. Manning’s current appointment. What was inherently a subjective judgment effected by The President had to be finally validated by Parliament the using the empirical/ objective test.
Mr. Manning’s appointment was contingent on his fulfilling within a reasonable, constitutionally-determined maximum time frame (6 months from the last sitting) two critical, mutually supportive and overriding constitutional conditionalities that underpinned The President’s exercise of his own deliberate judgment (Section 83) in effecting the appointment, albeit provisional, but one which in my view, he had to make. His Excellency chose not to validate the incumbency theory which would have required maintaining the status quo.
These conditionalities were:
1.The appointed PM would cause Parliament to function. The minimum requirement of this will be the election of a Speaker at its first sitting. Where else can the PM demonstrate the requisite command of the majority as required by 76(1)(b)?
2. that at the very first sitting of the convened Parliament, having regard to the provisional nature of The President’s initial appointment, Mr. Manning was able to demonstrate to The President, who made the subjective prognosis as well as to the other members of the House and one may add to the people on whose behalf The President acted, that he indeed did command and was then no longer in the "most likely status" to command "…the support of the majority of that House" ( from possibility to actuality) e.g. by electing a Speaker which is first on the order of business of the House.
In fact while His Excellency premised his decision on cautious optimism that the appointed PM was likely to command the requisite majority support, the beneficiary did not in fact share that optimism. He did not summon Parliament immediately after his appointment as is customary but only when the stipulated maximum six- month interregnum between sittings was about to expire.
Accordingly failure on the part of The Honourable Prime Minister to demonstrate empirically in Parliament on April 5 and 6, and thereafter in the face of a dysfunctional Parliament, the aforementioned twin- bases on which The President’s December 24 provisional appointment was predicated, constitutes legitimate constitutional grounds for either Presidential revocation of his appointment or after consultations with His Excellency establishing a mutually-agreed, immediate date on which fresh elections will be held. That was indeed the corollary of the President’s Xmas Eve provisional appointment.
Accordingly the public disclosure attributed to the Honourable Prime Minister at the Guyana Caricom Summit that by October 31 the election date would be divulged having regard to the fact that the 2001-2002 Financial Year closes on 30 September and in the face of a de facto non- operating Parliament since October 9 last, can neither be considered reasonable nor politically nor constitutionally correct in the circumstances. It threatens to cause mayhem in the continuing service of the people of Trinidad and Tobago without due process of law.
Having misled the population repeatedly into believing that he had a secret plan that would result in the election of a Speaker at the first Parliamentary sitting held on April 5 and having failed, he cannot now condition the date for calling elections on the parliamentary fate of a 2002/03 budget when there is incontrovertible and convincing UNC-generated evidence hitherto that he cannot even elect a Speaker far less introduce a 2002/03 Budget. His provisional appointment expired on 6 April last.
Going beyond that date is tantamount to governing on borrowed time. It constitutes an infringement of and a flagrante delicto against the principles/practices/ conventions underlying Westminster parliamentary democracies.
I am reminded of the prophetic words of Mr. Justice Deyalsingh: "…Our politicians will learn fast that they cannot play the fool with the powers of Government…" (Newsday Nov.4, p.65).
Government’s current largesse/expenditure of the public purse is not subject to Parliament’s scrutiny. Business confidence and hence economic growth is decelerating owing to political instability. Serious crimes are galloping/escalating out of control owing to, inter alia, a perception of lack of a legitimate central authority and a weak, inexperienced National Security Minister.
This is cause for overriding national concern. They also constitute relevant and compelling grounds to justify Presidential intervention in the public interest as well as in accordance with his duty to uphold and defend the letter and spirit of our Westminster Constitution and our Parliament-based Democracy.
The dysfunctional Legislature, as separate and distinct from Presidential Executive authority exercisable in revoking a Prime Minister’s appointment ( Sections 44(a) and 39(1) of the Interpretation Act), is precluded from exercising the Vote of No Confidence option designed for the removal of a sitting PM provided for on the basis of Section 77 and 78. That procedure will have provided the ultimate litmus test of the legal validity or non-validity of the President’s December 24 executive, quasi-judicial decision. The invocation of that procedure may have resulted in the validation of the PM’s appointment and continuation of the PNM Government in office, fresh elections or removal of the defeated minority PM.
The non-functioning legislature is also stymied from invoking the provisions of Section 77. His Excellency The President, as guardian/defender of the public good and custodian of the Constitution, in exercise of his executive prerogative (Section 74) should intervene with a view to taking steps to re-establish a functioning Parliamentary-based Democracy- the sine qua non of our paradigm of Westminster governance.
The President cannot legitimately allow Prime Minister Manning to continue in Office, albeit one whom he had provisionally/subjectively but constitutionally appointed because an 18-18 appointed Prime Minister, having faced Parliament on April 5 and 6 last, failed to obtain Parliamentary validation. Hitherto the PM has not been able to demonstrate the minimum requirement necessary (a functioning Parliament) to continue as Prime Minister after eight months in Government without any definite time frame (date) for holding fresh elections being immediately established.
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