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Consent and Persuasion

February 18, 2001
By Selwyn R. Cudjoe

THE President has capitulated. The Maharaj/Panday axis has been victorious. The question remains: "What price victory?"

Two Sundays ago, I indicated that the society is faced with a conundrum; that is, in very much the same way the Panday/Maharaj axis changed the practice of criminal law, their assault on constitutional law and practice may have a similar effect. Although its effect may not be obvious to all immediately, at the end of their era our constitutional assumptions may be changed forever. They may be changed for the better; they may be changed for the worse. They are not likely to remain the same.

Today, we are faced with the spectre that losers have become winners and winners stand to lose their right to represent their constituents. Under the present dispensation, the latter are reduced to a state of obsolescence. With a salary of $17,000 per month, losers have resources and access to power whereas winners, with a salary of $11,000 a month, have the ability to besiege government on a weekly basis in Parliament. They may not be able to serve their constituents in meaningful ways.

The institutionalisation of such a change will have fundamental implications for our democracy. It has the possibility of making winning and losing obsolete terms in our election vocabulary. It matters that one is brave enough to offer oneself to the electorate. If the party is rich enough and has access to government funds, losing is of no consequence. You will share in the spoils of victory one way or another and you shall be placed in a position that ensures victory in a subsequent election.

It might be that these losers will prove to be such great managers that their appointment will be a massive asset to the society. Given Trini's seven-days-wonder mentality, it is possible that if UNC retains government for the next five years, we are not sure how long the Gypsy-Chaitan matter would last, that we might come to regard this incident as an interesting anomaly.

Yet, we should not forget that the actions of the Panday/ Maharaj axis completely abrogate a fundamental tenet of participatory democracy: the right of people to be represented by those whom they chose. This has been inverted to read: if you give a party a mandate, the rights of those who voted differently will be disregarded forever. Although it might be true that all losers get now is a right to regale the Government from the Opposition benches, one need not act in such a way to remove even their semblance of representation.

P S Atiyah, a former Professor of English Law at Oxford University, has argued that law, an abstraction, must be seen for what it is: "a human institution for the regulation of conflict in society, and for the better facilitation of the due fulfillment of men and women of their individual aspirations."

To work well, it must persuade rather than overwhelm by force. Laws must always be seen to be to everybody's advantage. Otherwise, a society can quickly break down into chaos.

Neither is it possible to enforce certain decisions against the will of a large segment of the population. Whether Panday likes it or not, many Trinbagonians agreed with the President. They believe that acceding to Panday's request, as he now has, is another step along the road towards a creeping tyranny. Certainly, a responsible government seeks to put in place a framework or conventions that will persuade reflective citizens that the implicit assumptions of the social contract will be respected. You can compel, you can coerce, but in the end, persuasion is always preferable over force and intimidation.

I insist that the President was right originally in not acceding to the PM's request. In 1992, the High Court of Australia held invalid legislation to restrict television broadcasting in the pre-election period. (See Australian Television Pty Ltd, v. Commonwealth.)

Although the Australian Constitution does not contain a Bill of Rights, the High Court "held that the Constitution contained within it an implied freedom of communications, based on the notions of representative democracy and responsible government". Every right and/or contingency can never be written into a Constitution. Some are implied.

In Law and Modern Society, Professor Atiyah posed an antithetical question he refuses to answer when he speaks of the implicit limits of the British Parliament.

He notes: "An Act of Parliament requires the consent of the Queen, and though, in ordinary times, it is firmly established convention that the Queen must assent to all bills passed by Parliament, nobody could predict how the monarch would respond to a bill which was itself a gross breach of fundamental constitutional conventions."

His response to this statement is not that the monarch must assent to such a bill because it has been passed by Parliament. He opts for a cop-out, although the answer seems obvious when he says: "These are, fortunately, a realm of fantasy and we can leave them to turn to more serious issues."

He presumes that Parliament would act in a manner that prevents the monarch from having to respond negatively to such a request. The implicit assumption is that rationality and discretion will prevail.

Unfortunately, that is not the case in T&T's politics. Rationality and discretion do not always prevail which makes it uncomfortably true that sometimes, as in this case, the President has to say no. He changed his mind but I still think he was correct in his initial analysis.

The Panday/Maharaj axis has affirmed a dangerous legal principle. Time alone will tell whether this principle of selecting losers in such large numbers to the Parliament and thereby effectively silencing the legitimate representatives of the people does violence to our democratic system of governance.

Only time will tell whether the elevation of losers, an unfair and unacceptable violation of how elections results are handled traditionally within a democracy, will come back to haunt us in the future.

Put on your seatbelts: the ride is likely to be getting bumpier still.

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