The Scarlet Pimpernel Blog
Wednesday, 27 October 2010 10:11
By The Scarlet Pimpernel
As the date approaches for the Eastern Caribbean Court of Appeals to pronounce the long awaited decision of the UPP Government’s appeal of the High Court Judgment, by Justice Louise Blenman,
Which invalidated the election of three UPP parliamentarians, including Prime Minister Spencer, we are being bombarded with what may best be described as “legal fortune-telling” from both sides and in between our polarized political pulpits.
Indeed, the Court of Appeals has at least three possible options, among which include “overturning” and “modifying” the High Court judgment, but the most popular focus transmitted from elected and appointed politicians and media “talking heads” into the minds of the People, involves what should transpire if the Court of Appeals “upholds” the High Court judgment. Clearly, what is constitutionally required to be done must be juxtaposed against what will actually be done, as I suspect scandalous political maneuvers, counter moves and more court battles are afoot in the political chess game that will take center stage after the Appeals Court decision is rendered.
According to many of our local legal luminaries, we may be in the dawn of a constitutional crisis, but allow me to uncover the emptiness that lurks beneath such assertions. First, if the Court of Appeals “upholds” the High Court judgment invalidating Prime Minister Spencer’s parliamentary seat, guidance must be sought from our supreme law as to how our politically appointed Governor General must proceed in selecting a new Prime Minister.
The instructions, found in section 69(1) of the Constitution, states that at all times there must be a Prime Minister of Antigua and Barbuda, who must be appointed by the Governor General; and section 69(2)(a) clearly and unambiguously states that the Governor General is obligated to appoint as Prime Minister, “… a member of the House who is the leader in the House of the political party that commands the support of the majority of members of the House, and is willing to accept the office of Prime Minister.” Despite the clumsy, verbose construction of this section, the plain meaning and the obvious intent of this legislation is that the Governor General must appoint as Prime Minister the leader of the one political party that has the most elected members in the House of Representatives. In this connection, the Constitution is not concerned with who is seated on which side of the House. The Ethics of Appointed Politicians
Do not be beguiled by our politically appointed, Attorney General, who seeks to prepare the nation for the impending delay tactics and strategic maneuvers that will be undertaken by our politically appointed Speaker of the House of Representatives, under the auspices of section 52 of the Representation of the People’s Act; and to cajole us into believing that in the event that three UPP seats are declared invalid a “constitutional crisis” will ensue. To the contrary, there is no reason for a constitutional crisis, because the said Constitution prescribes a remedy that lies in the judgment and discretion of our politically appointed Governor General.
There are members from three different political parties in the House of Representatives; and the constitutional mandate of appointing the Prime Minister from the sole political party with the most members in the House, pursuant to section 69(2)(a) of the Constitution is beyond reasonable dispute. The relevant Constitutional provisions are principally concerned with ascertaining the one political party with the most members in the House, which generally becomes the government, and secondly, with the political leader who will be selected from that party as the Prime Minister.
A careful reading of section 69(2)(b) shows the constitutional intent to have the Prime Minister appointed from the one party with the most seats in parliament, and only in the event “… where it appears to him [the Governor General] that such party [THE ONE PARTY WITH A MAJORITY OF SEATS IN THE HOUSE] does not have an undisputed leader …” may the Governor General exercise personal discretion in selecting the Prime Minister.
Certainly, if three UPP seats are invalidated, the Governor General’s discretion is only warranted if the party with the most elected members in the House does have an undisputed leader in the House. The Constitution must be interpreted to avoid the absurdity. The political party with the most elected members in the House must be deemed the Government of Antigua & Barbuda and the undisputed leader of that party must be appointed as Prime Minister. The issue of commanding the support of the majority of elected members in the House must be interpreted in this light. Moreover the undisputed leader of the political party with the most elected members in the House is logically the person most likely to command the support of the majority of members in the House. In addition, the independent discretion of disgruntled UPP parliamentarians and the parliamentary representative for Barbuda to align or not with the UPP must not be taken for granted as these peculiar political playoffs begin to unfold.
Further, section 25 of the Constitution provides for a Deputy Governor General in Antigua & Barbuda, but I am yet to find the legal authority for the pronouncement of a Deputy Prime Minister, so if Prime Minister Spencer’s seat is invalidated, who will be the undisputed leader of the UPP in the House? I proffer the question because my legal instincts tell me that applicable constitutional considerations will be ignored and the only provision of the Constitution that will become relevant at the appointed time, states that the politically appointed Governor General has the constitutional authority to appoint as Prime Minister, the person in her judgment, who is likely to command the support of the majority of the members in the House.
The constitutional instructions as to what the Governor General, Dame Louise Lake-Tack, must do in the event that the Court of Appeals upholds Justice Blenman’s Judgment is clear and unambiguous; there is no need for tortured interpretations of the Constitution to accomplish undemocratic political objectives, but we have seen that the partisan duties of political appointees will necessarily conflict with constitutional obligations in circumstances such as these. In time, as these events unfolds, the extent of the cronyism and inherent conflict of interest that attends to the issue of political appointments in Antigua & Barbuda will be revealed. The Appointment of Political Operatives is Undemocratic
Anticipation of the Governor General’s response to the decision of the Appeals Court, coupled with the issues of alleged impropriety surrounding the Governor General’s handling of the report from the tribunal that recently investigated the conduct of our politically appointed Electoral Commissioners provide an adequate context for a cursory discussion of the obvious shortcomings of having appointed rather than elected public officials in Antigua and Barbuda.
I vigorously maintain that any progressive notion of democracy requires persons that directly represent the People in government to be elected by the People. Our laws which mandate appointment as opposed to election of public officials and heads of statutory corporations are retrogressive in their current construction and have outlived their usefulness. It is obvious that “[h]aving public officials that are elected more accurately reflect the desire of the public in selecting who will represent them. If public officials are concerned with reflecting the wishes of the voting public, they will be more receptive to input from voters” instead of being loyal to the party that appointed them.
Our young democracy is severely handicapped by the number of important government offices that are required to be filled by political appointees as opposed to persons duly elected by the People. I am not the least bit interested in how it is done in other countries; we desperately need our public officials to be elected by the People to avoid the customary high level of cronyism, government interference and manipulation associated with appointed offices. We are well aware that “who pays the piper calls the tune,” and the political pandering necessary to hold appointed offices in Antigua & Barbuda means that independent elected officials will behave in a manner that is distinctly different from their appointed counterparts.
I am of the view that our Governor General should be an elected official with an expanded role rationalized beyond ceremonial duties in order for the office to deserve a salary from tax-payers hard earned money. Likewise, public offices including, but not limited to Senators, Speakers of both Houses, Attorney General, Director of Public Prosecutions, Commissioner of Police, Chief Magistrate, Ombudsman, heads of statutory corporations, ambassadors-at-large, Supervisor of Elections, Electoral and Public Service Commissioners, should also be elected public officials directly accountable to the People.
These offices need to be cultivated into fertile grounds for the next generation of political aspirants to get their feet wet as opposed to being gifts of five years of salary to cronies and political hacks. There are many young aspiring politicians, who, as independent thinkers, would bring a fresh perspective to our political landscape and whose contributions we lose because they do not want to be affiliated with the perceived misdeeds of either the ALP or the UPP. They should have an opportunity to deliver meaningful services to the People as independent elected public officials.
I propose that instead of engaging in reckless discussions about forming a coalition government, which is a recipe for more of the same, at a time when we need radical change, we need to harness the courage to effectuate the changes, reform, realignment and structural adjustments that are a necessary precursor to our recovery and future prosperity.
As we prepare to celebrate another year of independence, we must embrace the opportunity to genuinely reflect on the need to effectuate meaningful constitutional reform within the important structures of our form of government, which is burdened with enshrined, antiquated systems and modalities that plainly do not serve the best interest of the People and do not advance the ideals of our young democracy.
The Scarlet Pimpernel is the nom de plume of an Antiguan born “knowledge broker” whose intercontinental exploits involve work as a university founder and educator, military strategist, international legal consultant, United States prosecutor, published author, trade advisor in Latin America and international investment counselor. The inimitable acuity of the “Pimpernel” is sought after by entrepreneurs, investors and governments from Dubai to Brazil. Recent work, created for Latin America, which speaks to the conjunction of technology and education to reduce cost, motivate students and improve testing results will be translated and introduced to school systems across the Caribbean later this year. “Employing anonymity to domesticate the ego ...”