Estwick and the numbers game
THE MOST recent public tantrum thrown by our mercurial minister Dr David Estwick raises questions about what would happen should he carry out his threat to cross the floor of the House of Assembly.
In my view it would place our country into a constitutional crisis not anticipated by the framers of our Constitution nor indeed our Electoral and Boundaries Commission.
The 30-seat configuration of the House of Assembly, the 16-14 outcome of last year’s general election, and the convention that presiding officers are chosen from the majority party have combined to create a potential dilemma if the Minister of Agriculture walks away from the party under whose banner he was elected 50 weeks ago.
With Dr Estwick no one can be sure. At least he will now get a hearing and possible adulation from his colleagues on Thursday, raising hope that he will settle back down and save his Government from possible embarrassment.
When he first threw down the gauntlet saying that if he is not heard by his colleagues he will sit as an independent or join the Opposition, they were fears he could not retract without being rightly regarded as some brand of political pussycat.
He knows that Prime Minister Freundel Stuart is unlikely to fire him, although he should, given the meaning of collective responsibility of Cabinet. But to fire Dr Estwick would be to put the Government in parliamentary peril and self-inflicted collapse.
Yet, if Dr Estwick did support the civil service lay-offs in Cabinet; and if he did vote for them as I understand each minister was required to do individually, then he does not have much of a case to object at this stage, even though the concept of debt-restructuring appears to be a possible option.
The International Monetary Fund delivers its report this week following its December Article IV consultation; so all options are now off the table.
Dr Estwick’s threat has taken us into the sphere of speculation and as a result, new theories and possibilities are being discussed.
The question on the lips of the politically conscious is: “What if?”
What if Dr Estwick decides to leave Cabinet and sit on the backbench? The status quo, though uncomfortable for Government, would remain the same. He would come under the whip of the party and would be required to vote with the party in the House of Assembly.
What if Dr Estwick decides to resign from the Democratic Labour Party (DLP) and sit as an independent in the House of Assembly? The configuration of the House would change from 16-14 to 15-14 – one denying the DLP the numerical superiority to automatically pass legislation and bringing into question whether the person best able to lead the Government really does enjoy the support of a majority of members.
Prime Minister Freundel Stuart would be under no compunction to resign, as he would technically still enjoy the numerical support of half of the House – 15 members.
What if Dr Estwick decides to resign from the DLP (or is fired by Stuart) and he joins forces with the official Opposition? This would create a 15-15 Parliament and the Governor General would have to make a determination whether Stuart still can command the support of a majority of the members of the House. It would be possible for the Governor-General to determine in the affirmative and ask Stuart to continue to run the affairs of state.
The Governor General’s authority would be Section 65 (1) of the Constitution: “Whenever the Governor General has occasion to appoint a Prime Minister he shall, acting in his discretion (my emphasis), appoint the member of the House of Assembly who, in his judgment, is best able to command the confidence of a majorit of the members of that house.”
When Trinidad and Tobago had a hung parliament in 2001, the president, A.N.R. Robinson, despite procuring advice from a well known constitutional law expert (Professor Vernon Bogdanor) refused to utilise the Westminster convention model of “incumbency theory” to indicate to Prime Minister Basdeo Panday that he should remain in office. Instead, he chose Opposition Leader Patrick Manning.
Should Dr Estwick cross the floor and a no-confidence vote is successfully brought, our Governor General can permit Stuart, as incumbent PM in a hung (15-15) Parliament, to continue in office and test his majority support on the floor.
With the Speaker being taken from the ranks of the ruling party in terms of voting, the effective strength of the Government would be reduced from a “majority” of 15 voting members as against 15 for the Opposition, to 14 voting members as against 15 for the Opposition. The only problem that would create is the inconvenience of passing legislation.
We can reasonably conclude that this scenario would destine Government to frustration and failure to pass bills. Except for the Estimates, the House does not have any legal compulsion to hold meetings.
The people of St Kitts-Nevis recognised this in 2012 when two of Prime Minister Denzil Douglas’ MPs crossed the floor and his government became a minority. To this day, he refuses to set down for hearing, a motion of no confidence, filed in December 2012.
It is on this point that Stuart may be at his weakest. If a no-confidence motion against him is filed and a date is set, and voting is strictly along From Page 12A.
party lines, if Dr Estwick is either an independent or a member of the Opposition, such a motion is likely to pass by a 15-14 majority with the Speaker unable to vote.
Contrary to a widely held view, the potential of a successful no-confidence motion, if carried, is the ONLY way in which a prime minister can be removed. No group of MPs can have him removed by telling the Governor General they no longer have confidence in him.
It takes majority of all
But note: Section 66 (2) states: “If the House of Assembly by a resolution which has received the affirmative vote of a majority of all the members thereof (my emphasis) – not the members present, but all members) resolves that the appointment of the Prime Minister ought to be revoked and the Prime Minister does not within three days of the passing of the resolution either resign or advise the Governor General to dissolve Parliament, the Governor General shall, by instrument under the Public Seal, revoke the appointment of the Prime Minister.”
Though carried, a no-confidence motion would require 16 votes and not the 15 it would get in our possible scenario, for the prime minister to resign.
Strictly speaking therefore, in 1994 when Lloyd (later Sir Erskine) Sandiford lost the no-confidence motion by 14 votes to 12, he was not compelled to resign. The motion did not get the acclaim of the majority of all members (of 28), just the majority of all members present.
So if a motion in 2014 is similarly carried, but not voted on by at least 16 members (of 30), we would have a constitutional crisis, because Stuart would not be compelled to resign and his appointment could not be revoked by the Governor General based on the no-confidence motion.
Senior law lecturer and deputy dean at the Cave Hill campus of the University of the West Indies, Jeff Cumberbatch, noted in 1994 in the Nation: “It is my view that the presence of Section 66 (2) possibly precludes the Prime Minister’s demission from office at the instigation of Parliament by way of a no-confidence motion or otherwise than in accordance with that section.”
Further, Professor Alber Fiadjoe, a former colleague of Cumberbatch’s said of the 1994 vote, “ . . .though carried, the no-confidence motion was nonetheless short a single vote to invoke a revocation of the Prime Minister’s appointment.”
In the circumstance of a 15-14 vote against him, Stuart would be frustrated because he could not pass laws, but he could remain in office until a no-confidence vote against him gets the requisite 16 votes, or according to convention, having lost a no confidence vote, he could, on his own volition, indicate to the Governor General to prorogue Parliament and call elections as Sandiford did.
In Barbados in 2014 we would dub such an election “the David Estwick election”.
And what a kadooment that would be!