Trinidad Express
Tobago News
Trinidad Guardian
Linearity, circularity and reciprocity
Part 1 January 14, 2001
January 22, 2001
By Denis Solomon
I WAS led to the image of circularity versus linearity by the statement made by attorney-at-law Reginald Armour, one of the panellists in the TV6 public forum last evening. Armour maintained that the question of the President's authority to refuse a request from the Prime Minister must be considered in the framework of the Constitution as a whole, not just one or two articles of it. The burden of his argument was that the Constitution provides for the President to be brought to account for any perceived dereliction of duty.
This process requires a motion for the investigation of his removal to be signed by not less than one-third of the total membership of the House of Representatives and the Senate. This motion must then be adopted by not less than two-thirds of the House of Representatives and the Senate assembled together.
A tribunal of senior judges, under the Chief Justice, then investigates the complaint, and reports to the House of Representatives. The report is then considered by the House and Senate together, and the President can be removed by a resolution supported by no less than two-thirds of the total membership.
Armour's point was that if the President can be made to answer for his actions to a tribunal and ultimately to Parliament, the same process enables him to justify those actions to Parliament, and thereby obtain its approval of them.
This is the kind of circularity I am talking about, and Armour's point shows that in theory it exists in our system too. But unfortunately, not in practice. Because our Parliament is not capable of playing the role such circularity implies. Note that this is not the same thing as saying that Panday cannot muster the two-thirds majority necessary to impeach the President. What I am saying is that the Opposition is as ignorantly monolithic as the Government, both in the House and the Senate. Parliament, as Parliament, is not therefore capable of mounting this kind of process, and linearity still predominates over circularity.
The existence of this provision for Parliamentary impeachment of the President is the reason why the Constitution also says that no decision of the President shall be challenged in court. The intention obviously is that the judiciary shall intervene in matters concerning the President's discharge of his duties only at the behest, and on behalf, of Parliament. Neither the Parliamentary executive nor the judiciary is superior to the President (as President); but Parliament is superior to both.
So here we have a paradox. In our unfortunate practice, the Prime Minister is omnipotent; but when his irresistible force comes up against the immovable object of the President, his omnipotence becomes impotence. In fact, both become impotent, for the real fountainhead of sovereignty, the Parliament as supreme deliberative forum of the people, is not available to adjudicate in favour of one or the other.
The President is, therefore, reduced to refusing to read the Government's legislative programme to the opening of Parliament, and the Prime Minister is reduced to threatening lawsuits that are specifically forbidden by the Constitution.
This, I submit, is where my metaphor of linearity versus circularity enables us to focus on the key point where reform is essential. That point is the Parliament. The automatic domination of Parliament by the Government must be broken. The executive must become a separate entity from the legislature. There are different ways in which this can be achieved. The one I have consistently proposed is the separate election of the chief executive, who would come from outside the legislature and appoint his cabinet from outside it too. But this is not the only possibility.
This is where the third of my concepts, reciprocity, comes in. Reciprocity means that whether the executive and the legislature are in an exclusive or inclusive relationship to each other, each must have a separate identity, and each must influence the other and be influenced by it. In the United States, the President is outside the legislature. He can propose legislation but not command it; if he doesn't like it, he can veto it (up to a point). He appoints his cabinet, but its members have to be confirmed by the legislature.
In Britain, the Cabinet is a committee of the Parliament; but in various ways the government is kept in check by Parliament, regardless of party alignments. Despite the landslide Labour victory at the last election, Prime Minister Tony Blair was recently formally accused by a group of chairmen of Parliamentary committees, most of whom were Labour members, of being a "control freak": seeking to manipulate the decisions of Parliamentary committees and, therefore, of Parliament as a whole.
In Trinidad and Tobago, the subordination of the House of Representatives to the Government is a reflection, among other things, of the subordination of political parties to their maximum leaders. This is not the place to go into the ways this might be overcome: the popular mobilisation occasioned by the present situation is one unplanned step in that process. One obvious institutional measure, however, is to increase the size of the House of Representatives.
The Senate is a different proposition, and in some ways is even more critical to the solution of the problem. The Senate should be expanded enormously. But the most important reform, I submit, is that the Government must no longer have a built-in majority. That is one reason why the present situation is so instructive. A Senate under automatic government control is a contradiction in terms.
If Mr. Panday does not relent and put forward nominees acceptable to the President, the Senate will be wide open for the first time. Remember when the President refused to replace the two Tobago Senators who would not toe the Government line? Wade Mark, the Leader of Government Business in the Senate, made the amazing statement that if the Government was not assured of a majority, democracy would suffer, because the Government's legislative proposals might be defeated.
The definition of democracy, to my mind, is precisely the possibility of a government being defeated in the legislature. The answer given by Independent Senator Martin Daly to Wade Mark was: "How do you know you will be defeated? Bring us your bills and we will consider them. If we like them, they will pass. If we don't, they will be defeated".
That is why what happens in the Senate from tomorrow onward is very important. It doesn't matter a damn whether Ganace Ramdial is elected President of the Senate tomorrow or not. What is of immense importance is that for the first time it is not a foregone conclusion. People may soon begin to wonder why it wasn't like that all the time.
Copyright © 2004 Denis Solomon