“76. (1) Where there is oc­ca­sion for the ap­point­ment of a Prime Min­is­ter, the Pres­i­dent shall ap­point as Prime Min­is­ter—(a)  a mem­ber of the House of Rep­re­sen­ta­tives who is the Leader in that House of the par­ty which com­mands the sup­port of the ma­jor­i­ty of mem­bers of that House; or (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.”

This par­tic­u­lar sub­sec­tion has at­tract­ed a lot of at­ten­tion late­ly as it re­lates to the im­pend­ing trans­fer of pow­er from Prime Min­is­ter Row­ley to Min­is­ter Young. Last Thurs­day, Se­nior Coun­sel Lar­ry Lal­la, writ­ing in the Guardian, of­fered an al­ter­na­tive opin­ion to the one I of­fered last Sun­day.

My view is that there is no path­way for Pres­i­dent Kan­ga­loo to ap­point Stu­art Young as Prime Min­is­ter un­der ei­ther sub­sec­tions (a) or (b) of sec­tion 76(1) cit­ed above be­cause he is not the leader of the PNM that com­mands the sup­port of the ma­jor­i­ty of the MPs in the House of Rep­re­sen­ta­tives un­der (a), while un­der (b) Row­ley is the undis­put­ed leader of the PNM in the House, and there is no ques­tion that there is no par­ty with a ma­jor­i­ty in the House. Se­nior Coun­sel as­sumes that the let­ter of the PNM MPs to the Pres­i­dent could say that they sup­port Young as “their ‘Leader in that House’, then MP Young would cer­tain­ly be ‘a mem­ber of the House of Rep­re­sen­ta­tives who is the Leader in that House of the par­ty which com­mands the sup­port of the ma­jor­i­ty of mem­bers of that House,’ thus sat­is­fy­ing the re­quire­ments for 76(1)(a).”

In re­spect­ful­ly dis­agree­ing with Se­nior Coun­sel, I fear that in­ter­pre­ta­tion sug­gests that Dr Row­ley would have ren­dered him­self pow­er­less at the hands of his fel­low MPs and fu­ture prime min­is­ters ap­point­ed un­der this sub­sec­tion could be­come the sub­ject of po­lit­i­cal coups if their MPs were to gang up in the House against their par­ty leader to re­move him/her as PM.

Sec­tion 49(2)(e) and sec­tion 49A (the cross­ing-the-floor sec­tions) are linked to the con­cept of a par­ty leader in the House, where that par­ty leader, who is an MP, has to ad­vise the Speak­er whether any MP who con­test­ed a seat on the tick­et of the par­ty of which he/she is the leader could have their seat de­clared va­cant if they have been ex­pelled by, or re­signed from, such a par­ty.

Dr Row­ley, by re­main­ing as par­ty leader, has not giv­en up that over­sight role and still has con­trol over his fel­low par­ty MPs based on sec­tion 76(1)(a) which is the source of that pow­er. Sec­tion 76(1) was in­tro­duced as an amend­ment to the Con­sti­tu­tion (Re­pub­lic) Bill 1976 when then at­tor­ney gen­er­al Basil Pitt pi­lot­ed the amend­ment at the com­mit­tee stage of the bill.

There was no in­ten­tion ex­pressed by Par­lia­ment that it would recog­nise a com­peti­tor against the sit­ting leader of the par­ty. (See Hansard, House of Rep­re­sen­ta­tives, March 15, 1976, pp 819-820). The on­ly oth­er amend­ment that was of­fered to sec­tion 76 con­cerned the cur­rent sec­tions 76(4) and 76(5), which were made in the Sen­ate.

An amend­ed sub­sec­tion (4) and a new sub­sec­tion (5) were pro­posed by Sen­a­tor Fran­cis Pre­vatt, Leader of Gov­ern­ment Busi­ness, which pro­vid­ed for the ap­point­ment of a Prime Min­is­ter dur­ing a dis­so­lu­tion and the ap­point­ment of Min­is­ters dur­ing a dis­so­lu­tion (see Hansard, Sen­ate, March 24, 1976, p 809).

Those amend­ments were ac­cept­ed by the House of Rep­re­sen­ta­tives on March 26, 1976, (see Hansard, House of Rep­re­sen­ta­tives, March 26, 1976, p 896). There is no ques­tion that the Par­lia­ment cre­at­ed two con­test­ing poles of pow­er among MPs be­long­ing to the ma­jor­i­ty par­ty un­der sec­tion 76(1)(a) that any col­lec­tion of them who formed an al­ter­na­tive ma­jor­i­ty among their par­ty MP col­leagues could un­seat their sit­ting par­ty leader, with or with­out his con­sent. Such a sit­u­a­tion could lead to con­sti­tu­tion­al and po­lit­i­cal break­down.

Nowhere in any of the de­bates on the Re­pub­li­can Con­sti­tu­tion can such an in­ter­pre­ta­tion be found. If, how­ev­er, the Pres­i­dent choos­es to sat­is­fy Dr Row­ley’s de­sire to re­main as par­ty leader while sur­ren­der­ing the post of Prime Min­is­ter by us­ing sec­tion 76(1)(a), the Pres­i­dent will do the coun­try a great dis­ser­vice and dam­age its po­lit­i­cal rep­u­ta­tion for sta­ble gov­ern­ment.

The on­ly path­way for Min­is­ter Young to be ap­point­ed PM is un­der sec­tion 76(4) which ap­plies to mak­ing the ap­point­ment dur­ing a dis­so­lu­tion of Par­lia­ment, if Row­ley still wants to re­main as par­ty leader.

Prof Hamid Ghany is 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.