At the En­er­gy Con­fer­ence last week, both Prime Min­is­ter Kei­th Row­ley and En­er­gy Min­is­ter Stu­art Young made ad­dress­es that point­ed to­wards a mo­men­tous shift in po­lit­i­cal pow­er that should take place lat­er this month or over the Car­ni­val week­end if the timetable laid out by Dr Row­ley last month is ob­served.

The con­sen­sus of the PNM MPs has been se­cured by way of a signed and un­dat­ed let­ter to the Pres­i­dent in­di­cat­ing their agreed con­sen­sus for Young to be­come the next Prime Min­is­ter pri­or to the gen­er­al elec­tion. The im­ple­men­ta­tion of this con­sen­sus will de­pend up­on pres­i­den­tial dis­cre­tion, as the con­sti­tu­tion­al pro­vi­sions will re­quire her to form an opin­ion about who should be­come the Prime Min­is­ter.

How she han­dles the tran­si­tion from Row­ley to Young will de­pend on what Dr Row­ley puts in his let­ter to her. Will he re­sign the of­fice out­right, there­by cre­at­ing a va­can­cy, or will he in­di­cate that he is no longer will­ing to “ac­cept” the of­fice of Prime Min­is­ter?

He re­mains in­sis­tent on con­tin­u­ing as the “leader of the par­ty” that has a ma­jor­i­ty of seats in the House of Rep­re­sen­ta­tives. His un­bend­ing de­ci­sion to re­main as par­ty leader while be­com­ing un­will­ing to “ac­cept” the of­fice of Prime Min­is­ter will place the con­sti­tu­tion­al de­ci­sion square­ly at the feet of Pres­i­dent Kan­ga­loo.

As I in­di­cat­ed in my col­umn on Feb­ru­ary 2 in­stant, there are still many ques­tions to an­swer. My own view is that if a va­can­cy aris­es in the of­fice of PM, it should be filled with an MP who can com­mand the sup­port of a ma­jor­i­ty of MPs.

How­ev­er, does Row­ley’s con­tin­u­a­tion in of­fice as par­ty leader of the PNM block the Pres­i­dent from mak­ing any ap­point­ment to the of­fice of Prime Min­is­ter un­less Row­ley al­so re­signs as the po­lit­i­cal leader of the PNM based on the word­ing of the Con­sti­tu­tion?

The con­di­tions for mak­ing an ap­point­ment un­der sec­tion 76(1)(b) can­not be sat­is­fied be­cause of its pe­cu­liar word­ing, which reads as fol­lows: “(b) Where it ap­pears to him that that par­ty does not have an undis­put­ed leader in that House or that no par­ty com­mands the sup­port of such a ma­jor­i­ty, the 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 and who is will­ing to ac­cept the of­fice of Prime Min­is­ter.”

The ar­gu­ment here is that by Row­ley re­main­ing as par­ty leader and as an MP, there is no ques­tion of the PNM not hav­ing “an undis­put­ed leader” in the House of Rep­re­sen­ta­tives. The sec­ond sce­nario of “no par­ty com­mands the sup­port” of a ma­jor­i­ty is con­tra­dict­ed by the PNM ac­tu­al­ly com­mand­ing the sup­port of a ma­jor­i­ty in the House, and so there can be no ba­sis for mak­ing such an ap­point­ment un­der sec­tion 76(1)(b).

The core is­sue here for the Pres­i­dent is how she treats with the co­nun­drum of a leader of a par­ty with a ma­jor­i­ty who is no longer will­ing to serve as Prime Min­is­ter but is will­ing to con­tin­ue to serve as the par­ty leader of the par­ty that “com­mands the sup­port of the ma­jor­i­ty of mem­bers” of the House of Rep­re­sen­ta­tives.

There is noth­ing to com­pel such a leader to re­sign as par­ty leader. The ques­tion is that as Pres­i­dent, un­like her pre­de­ces­sors, Noor Has­sanali in 1995 and ANR Robin­son in 2001, who ap­point­ed Prime Min­is­ters un­der sec­tion 76(1)(b), she does not have the same fac­tu­al back­drop to jus­ti­fy the ap­point­ment (Pan­day 1995—no par­ty with a ma­jor­i­ty and Man­ning 2001—no par­ty with a ma­jor­i­ty).

The framers of the Con­sti­tu­tion nev­er en­vis­aged that a par­ty leader would not want to give up both of­fices (PM and par­ty leader), but on­ly one. They cre­at­ed a will­ing­ness to “ac­cept” the of­fice of Prime Min­is­ter as an ad­di­tion­al con­di­tion for be­ing ap­point­ed, but they nev­er catered for the pos­si­bil­i­ty of two dif­fer­ent per­sons hold­ing the of­fices of par­ty leader and PM in cas­es where the par­ty leader leads a par­ty with a ma­jor­i­ty.

Will the Pres­i­dent refuse to make the ap­point­ment if Dr Row­ley in­sists on stay­ing as par­ty leader of the PNM that has a cer­ti­fied ma­jor­i­ty as con­firmed by the con­sen­sus let­ter of PNM MPs? Or will she go ahead with the ap­point­ment to avoid a con­sti­tu­tion­al break­down?

The word­ing of sec­tion 76(1)(b) would not per­mit the Pres­i­dent to ap­point Stu­art Young un­less Row­ley al­so re­signs as par­ty leader of the PNM and sec­tion 76(1)(a) is off lim­its to Young. So what will the Pres­i­dent put on the in­stru­ment of ap­point­ment—sec­tion 76(1)(a) or sec­tion 76(1)(b)? Nei­ther would ap­ply to Young un­less Row­ley al­so re­signs as par­ty leader.

Prof Hamid Ghany is a pro­fes­sor of con­sti­tu­tion­al Af­fairs and Par­lia­men­tary Stud­ies at The Uni­ver­si­ty of the West In­dies (UWI). He was al­so ap­point­ed an hon­orary pro­fes­sor of The UWI up­on his re­tire­ment in Oc­to­ber 2021. He con­tin­ues his re­search and pub­li­ca­tions and al­so does some teach­ing at The UWI.