Commentary: Can the THA function legally without a minority leader?

PM Kamla Persad-Bissessar chats with opposition MPs at Thursday's inauguration of the Tobago House of Assembly 

The result of the Tobago House of Assembly (THA) election on Monday might have created a constitutional headache for both the assembly and the central government in Port of Spain.

On Thursday when President George Maxwell Richards installed the members of the assembly and officials he declared vacant the office of minority leader. 

He had no choice since there was no one among the 12 who was opposed to the People's National Movement (PNM). Without an opposition, it also meant that only three of the four councillors were elected since the fourth is supposed to be from the opposition.

At the end of the formalities the THA adjourned "to a date to be fixed", leaving the nagging legal and constitutional question unanswered. For his part Chief Secretary Orville London doesn't see a problem. He told reporters earlier in the week that according to the legal advice he received the assembly would be legally constituted without the minority leader.

“My lawyers have said there is nothing to prevent the THA from functioning without a minority leader and a minority council,” London told reporters who raised the question on Monday.

The THA Act of 1996 does not have any provision to deal with the situation that has arisen. Neither does it have a formula for dealing with a tie, which is another scenario that could have arisen if the result had been different.

London had suggested to the media that the president would declare the seat vacant - which Richards did - and that would allow the THA to function with the understanding that a minority leader could be appointed at a later time. But under the present system that could only happen with a defection from the PNM, which is highly unlikely. 

On Monday night Opposition Leader Keith Rowley cautioned the THA not to become complacent and allow an abuse of a system where there is no opposition. The president made reference to that on Thursday as well and London himself has stated that he would make every effort to democratise the system and prevent even the perception of an autocracy.

Chief Secretary Orville London invites PM Kamla Persad-Bissessar to Thursday's inauguration of the THA 

In advancing that case London has written to Prime Minister Kamla Persad-Bissessar asking her to urgently get Parliament to amend the THA Act to deal with the situation.

His letter has suggested an amendment to the Act to allow the president to appoint two independent councillors within the Assembly. His rationale is that in the absence of an opposition voice, the two independents would at least have an alternative opinion and would provide checks and balances.

While that might provide some semblance of balance and objectivity it does not solve the immediate problem of having no opposition. And it leaves the question about the legality of the THA notwithstanding the assurance from London that his legal experts have said everything is OK.

That might be subject to legal interpretation. If, for example, the legality of the assembly is challenged in court seeking an injunction to prevent the assembly from sitting that could become a crisis. The THA would be unable to sit as required by law and the courts would then have to determine the matter.

Perhaps it doesn't have to come to that. 

London and the THA could suggest a creative solution or the Prime Minister and the Central Government might have one. If Tobago and Port of Spain could meet and genuinely seek a compromise then a constitutional crisis could be averted and there would be the "democracy in substance" to which President Richards alluded in his speech at Thursday's inauguration. 

Nothing is ever written in stone and there is always a solution to every problem. However, there must be a spirit of give and take and a genuine desire to compromise.

The solution could rest in having a look at a system of proportional representation as an alternative to the first past the post one that exists today. That would guarantee an opposition presence and solve the problem.

But will the PNM or the People's Partnership buy into it?

Jai Parasram