As a result, the first order of business for London yesterday was to hold discussions with President George Maxwell-Richards on the issue of how exactly to run the THA in a situation where there is no opposition. This legal quandary arose when the TOP did not win any seat in Monday’s THA election.
One issue is whether or not the Assembly will be properly constituted in the abscence of a Minority Leader.
Section 8A of the Tobago House of Assembly Act states: “Immediately after administering the oaths of office to the Chief Secretary and the Deputy Chief Secretary under section 8, the President shall appoint as Minority Leader the assemblyman who, in his opinion, commands the support of the largest number of Assemblymen who do not support the Chief Secretary.”
Further to this, under the Act, the THA is actually a body corporate and is supposed to have a specific composition.
Section 5 (1) of the Act reads:
“The Assembly shall be a body corporate and consists of—
(a) twelve Assemblymen elected at an election held in accordance with the Representation of the People Act, but subject to section 15(1)(b);
(b) four councillors appointed in accordance with section 9;
(c) a Presiding Officer who may or may not be an Assemblyman or a councillor, who shall not be a member of the Executive Council, and who shall be elected in accordance with section 7.”
The issue involves the four councillors under 5(1)(b), who are unelected officials who serve alongside the elected members. The councillors are normally nominated by party leaders, including the Chief Secretary and the Minority Leader.
Section 9 of the THA Act reads: “Immediately after the appointment of the Minority Leader under section 8A, the Presiding Officer shall, acting in accordance with the advice of— (a) the Chief Secretary, appoint three councillors; and (b) the Minority Leader, appoint one councillor.”
With no Minority Leader, there will also be no councillor to fill that position under the section, meaning the composition outlined by the sections does not arise. By way of comparison, there is a similar provision in the Constitution which stipulates that there can be no Cabinet in the abscence of two specific posts: a prime minister and attorney general.
Legal sources said the way the THA Act is formulated clearly showed that the drafters did not anticipate a 12-0 result. (Or for that matter a 6-6 tie).
The legal dilemma, however, has not delayed the planned swearing-in ceremony of the new PNM Assembly. Up to yesterday afternoon, President George Maxwell-Richards was still due to administer the oath to the new members at a ceremony, at 10 am tomorrow at the Chamber of the Assembly on Jerningham Road, Scarborough.
Newsday understands the President will deliever an address to the new Assembly and there will also be the customary guard of honour.
Up to yesterday afternoon there was no word on who the presiding officer of the new Assembly would be. “I think Mr London is still working on that,” one official said.
“We are not able to say what will happen,” another Assembly official said yesterday. “The Clerk of the Assembly is awaiting word as to what will happen.”
In relation to the quandary raised by the 12-0 situation, an official stated, “he (London) and the President have been in discussion as to what can be done.” A possibility that was being looked at yesterday was whether a Minority Leader could, indeed, be appointed from among the rank and file of the winning PNM candidates.
A senior counsel said there was a precedent for the creation of an artificial opposition. In 1971, the PNM won all seats in the Parliament when the Opposition parties boycotted, citing rigged voting machines. In 1972, Joseph Roy Richardson crossed the floor and declared himself an Independent. He was subsequently appointed Leader of the Opposition. He was soon joined by another MP from the PNM ranks who crossed, Dr Horace Charles.
Yet the issue seemed to be a grey area in context of the THA. “I don’t think you can artificially create a minority leader in a situation like this,” another senior counsel said yesterday. “The Minority Leader is expected to nominate a councillor but if you have no Minority Leader then I think those provisions are simply inoperable.”
The lawyer cited Section 83 (6) of the Trinidad and Tobago Constitution which reads, “(6) Where the office of Leader of the Opposition is vacant, whether because there is no member of the House of Representatives so qualified for appointment or because no one qualified for appointment is willing to be appointed, or because the Leader of the Opposition has resigned his office or for any other reason, any provision in this Constitution requiring consultation with the Leader of the Opposition shall, in so far as it requires such consultation, be of no effect.”