Dangerous use of section 76(4) of Constitution

RICHARD JAGGASAR

IN THE ever-evolving landscape of constitutional law, a matter of significant consequence has arisen concerning the potential use of section 76(4) of the TT Constitution. This provision presents a clear pathway for a virtually unprecedented transfer of executive authority, one that could circumvent the democratic will of the people.

To appreciate the gravity of this issue, it is necessary to first set out the relevant constitutional framework. Section 76(1) of the Constitution states:

“Where there is occasion for the appointment of a prime minister, the President shall appoint as prime minister –

“(a) a member of the House of Representatives who is the Leader in the House of the party which commands the support of the majority of members of that House; or

“(b) where it appears to the President that the party which commanded the support of the majority of members of the House of Representatives before the dissolution of Parliament no longer commands such support, a member of the House of Representatives who, in his judgement, is most likely to command the support of the majority of members of that House.”

This provision enshrines the fundamental democratic principle that the electorate determine, through their parliamentary representatives, who will be appointed as prime minister. It is in keeping with this principle that the People’s National Movement (PNM) elected Keith Rowley as their political leader, fully expecting that, upon securing a parliamentary majority, he would rightfully assume the role of prime minister.

However, it is now foreseeable that the government may invoke section 76(4), which states:

“Where at any time between the dissolution of Parliament and the appointment of a prime minister in accordance with subsection (1) there is no prime minister or the prime minister is unable to perform the functions of his office, the President may appoint some other minister to perform those functions.”

By its plain wording, this provision allows for the appointment of any existing minister to act as prime minister in the interim period following the dissolution of Parliament. The concern, however, lies in the way this may be manipulated to bypass the electorate’s will.

All signs point to the dissolution of Parliament in the coming weeks if not days. Once Parliament is dissolved the writ of election will be issued by the President and that election date can be no later than three months from the dissolution of Parliament.

If, as anticipated, Dr Rowley advises the President to dissolve Parliament and then resigns, section 76(4) would be triggered. With no sitting Parliament, there would be no “Leader in the House,” thereby eliminating the possibility of a successor being appointed under section 76(1).

Instead, the selection of an interim (a term I use for ease of reference) prime minister would be dictated by the composition of the Cabinet, leaving the President with little discretion but to appoint a candidate endorsed by this closed circle of political elites.

The implications of this are profound: a prime minister could be installed without ever having faced the electorate or even securing the internal mandate of the ruling party’s political structure.

This raises an immediate and pressing issue regarding the legitimacy of such an appointment. The office of prime minister is not one of mere administrative convenience. It carries the weight of public trust and political authority.

Crucially, Stuart Young SC, who is widely considered the likely beneficiary of this manoeuvre, has never been elected to such a position by either the electorate or his own party. He is not one of the elected deputy political leaders of the PNM.

By what measure, then, can a handful of Cabinet members be permitted to impose upon the nation a leader who has not been chosen by the democratic process?

Moreover, and for the removal of doubt, the pool from which the Cabinet can select an interim prime minister under section 76(4) is limited strictly to substantive ministers. Junior ministers and parliamentary secretaries are excluded.

This ensures that only those who sit in the Cabinet, the very body orchestrating this transition, are eligible for consideration. This inherent circularity lends itself to an outcome in which the appointment of a successor is not determined by the broad will of the electorate, but by a closed circle of political elites.

Such an outcome strikes at the heart of democratic governance. The Constitution was designed to safeguard against arbitrary rules and whims of a few; and further to ensure that certain powers remain vested in the hands of the people;
vox populi, vox dei (the voice of the people (is) the voice of God).

Our democratic system was forged through the struggles of those who came before us, with the intent that no leader could ascend to power without the clear mandate of the governed. Any attempt to exploit a constitutional loophole to achieve an otherwise unattainable political outcome must, therefore, be viewed with the utmost scrutiny and scepticism.

Even in this eventuality the PNM still goes into an election season with no clear leader. That means even if the PNM should win the parliamentary majority in the next general election, the President will be unable to appoint a prime minister in compliance with section 76(1) (a). Even in that case the PNM would seek to appoint a prime minister, while there is no clear leader in the House.

Perhaps they believe the election would retroactively legitimise the appointment of Young. However, legitimacy of a government cannot be conferred retrospectively through a future election. The electorate vote with an understanding of who their prime minister will be based on the declared leadership of the party at the time of the election. Any deviation from this process undermines democratic accountability.

What happens next remains uncertain, but what is clear is that the use of section 76(4) in this manner would be an affront to the democratic foundations upon which TT is built. The Constitution does not exist merely as a legal document, but as the embodiment of the social contract between the people and those who govern.

Any subversion of its democratic intent must be met with rigorous legal and political challenge to ensure that the will of the people remains paramount. Any attempt to subvert the democratic process through section 76(4) must not only be scrutinised, but also challenged through all available constitutional and legal mechanisms.

Richard Jaggasar is an attorney

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