“49A. (1) Where cir­cum­stances such as are re­ferred to in sec­tion 49(2)(e) arise, the leader in the House of Rep­re­sen­ta­tives of the par­ty as a can­di­date of which the mem­ber was elect­ed, shall so in­form the Speak­er in writ­ing of those cir­cum­stances and the Speak­er shall, at the sit­ting of the House of Rep­re­sen­ta­tives next af­ter he is so in­formed, make a de­c­la­ra­tion that the mem­ber has re­signed from or has been ex­pelled by the par­ty, as the case may be.”

The first amend­ment to our re­pub­li­can Con­sti­tu­tion at sec­tion 49(2)(e) and 49A arose out of the res­ig­na­tion of Hec­tor Mc Clean as a min­is­ter in the Gov­ern­ment of Dr Er­ic Williams on March 31, 1978, and his re­nun­ci­a­tion of any signed and un­dat­ed let­ter of res­ig­na­tion that he had giv­en to his po­lit­i­cal leader when he was se­lect­ed as a PNM can­di­date.

Raf­fique Shah re­signed as Leader of the Op­po­si­tion on the same day af­ter one of the ULF MPs who was sup­port­ing him, when the split in the ULF oc­curred in 1977, had re­turned to sup­port­ing Bas­deo Pan­day. This led to Pan­day be­ing re-ap­point­ed Leader of the Op­po­si­tion.

As a con­se­quence, Williams and Pan­day sup­port­ed an amend­ment to the Con­sti­tu­tion that pro­vid­ed for the re­moval of MPs who changed their par­ty al­le­giance from when they were elect­ed.

The bill used the same lan­guage as sec­tion 76(1)(a) in recog­nis­ing “the leader in the House of Rep­re­sen­ta­tives of the par­ty” and it went on to add a spe­cif­ic set of cir­cum­stances in which that leader would take cer­tain ac­tions in re­la­tion to the MPs who had been elect­ed on a par­ty tick­et and had changed their al­le­giance ei­ther through res­ig­na­tion or ex­pul­sion from their par­ty.

When sec­tion 76(1)(a) was in­sert­ed in the 1976 Con­sti­tu­tion, the word “leader” was changed to “Leader”. The use of the up­per-case let­ter­ing sig­ni­fied that there was one par­tic­u­lar leader of the par­ty be­ing ref­er­enced. This is a tech­ni­cal le­gal draft­ing point that the lawyers ought to ap­pre­ci­ate.

There will be a va­can­cy in the of­fice of Prime Min­is­ter on March 16 as Dr Row­ley stat­ed on Wednes­day. The Pres­i­dent will have to fill that va­can­cy. The re­fusal of Row­ley to si­mul­ta­ne­ous­ly re­sign as par­ty leader of the PNM will cre­ate a con­sti­tu­tion­al co­nun­drum for the Pres­i­dent as the sta­tus by which Dr Row­ley be­came PM will not be al­tered by his stay­ing on as par­ty leader, but on­ly sig­nalling his un­will­ing­ness to con­tin­ue as PM.

The Pres­i­dent will have to find a cre­ative way to make the ap­point­ment and may very well use sec­tion 76(1)(a) for pur­pos­es of con­ve­nience. How­ev­er, the chal­lenge for the fu­ture is that a dan­ger­ous prece­dent will be set where­by a sit­ting PM who is the leader of their par­ty in the House with the sup­port of a ma­jor­i­ty can have that sta­tus up­end­ed by a fu­ture group of par­ty MPs com­ing to­geth­er to present a fu­ture Pres­i­dent with a signed let­ter by a ma­jor­i­ty of them in­di­cat­ing that they have a new leader in the House.

Such a fu­ture ac­tion will re­call the fa­mous case of Adeg­ben­ro v Ak­in­to­la [1963] 3AER 544 which held, in part, as fol­lows: “The Gov­er­nor could valid­ly ex­er­cise the pow­er to re­move the Pre­mier from of­fice un­der s 33(10) of the Con­sti­tu­tion of West­ern Nige­ria with­out there hav­ing been a pri­or de­ci­sion or res­o­lu­tion on the floor of the House of As­sem­bly show­ing that he no longer com­mand­ed the sup­port of the ma­jor­i­ty of the House; and the Gov­er­nor could act in this re­spect on the ba­sis of ma­te­r­i­al or in­for­ma­tion ex­tra­ne­ous to the pro­ceed­ings of the House of As­sem­bly.”

This case was ped­dled in 2001 as an au­thor­i­ty to be used by Pres­i­dent ANR Robin­son to re­move then prime min­is­ter Pan­day with­out MPs hav­ing re­course to a mo­tion of no con­fi­dence un­der sec­tion 77(1) of our Con­sti­tu­tion among those 36 MPs.

There was a frac­ture in the UNC at the time as three of its MPs were pre­pared to join with 16 MPs of the PNM to at­tempt to un­seat Bas­deo Pan­day as re­port­ed on the front page of the Guardian on Fri­day 5 Oc­to­ber 2001 un­der the head­line “DONE DEAL”.

Al­ha­ji Adeg­ben­ro was un­seat­ed by Chief Ak­in­to­la by the Gov­er­nor of the State of West­ern Nige­ria, Sir Ades­o­ji Adere­mi, with the use of ex­tra­ne­ous ma­te­r­i­al that did not in­clude a mo­tion of no con­fi­dence.

That case may be re­vived at a fu­ture date to avoid the re­quire­ment for a mo­tion of no con­fi­dence to change a PM if added to the loom­ing prece­dent of re­plac­ing Dr Row­ley with some­one oth­er than the par­ty leader by a let­ter from a ma­jor­i­ty of par­ty MPs.

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.