The phenomenon of defeated parliamentary candidates serving as parliamentarians is a part of the political process in many of the Commonwealth Caribbean countries. This phenomenon arises in part because the principle of nomination to the legislature has remained a feature of the political system for the entire time that the development of representative and responsible government was taking place in the former British West Indies.
The Crown Colony system of government that was introduced into the British West Indies had as one of its hallmarks the substitution of elected representation by nominated membership in the Legislative Councils of the region. Such nomination was to be initiated by the Governors of colonies in the British West Indies and these nominated members of the Legislative Councils were entitled to serve 'during pleasure'. This feature first emerged to the exclusion of elected representation in the nineteenth century in the British West Indies.
According to Sir William Dale, the phenomenon of what was a Crown Colony "was evidently understood at the time to be one without responsible government, whether or not there was a representative Legislature; and this seems to be the convenient meaning."1
On the other hand, Sir Kenneth Roberts-Wray addressed the expression of the term 'Crown Colony' as follows:
While the Governor bears the primary responsibility for administration, close supervision and control are exercised by the Government (nearly always that of the United Kingdom) to whom the Governor is answerable in both the legislative and executive fields.2
Roberts-Wray included in his descriptions of territories that may have been Crown Colonies at an earlier time "the West Indian colonies which abandoned the old representative system."3 Such abandonment started with the colonies of Trinidad (ceded to Great Britain from Spain by the Treaty of Amiens 1802)4 and of St. Lucia (ceded to Great Britain from France by the Treaty of Paris 1814).5 This abandonment was further extended to Jamaica in 18666 and subsequently to other territories of the British West Indies.
Grenada became a Crown Colony in 1876 when its Legislative Assembly was abolished at its own request by virtue of the Saint Vincent, Tobago and Grenada Constitution Act 18767 and a nominated Legislative Council was established in 1877.8
Only the Bahamas,9 Barbados,10 and Bermuda11 did not become Crown Colonies insofar as their legislatures retained a representative system, while the others abolished all elected representation and introduced the principle of nomination as the primary form of recruitment to the Legislature.
Reforms were introduced into the Crown Colonies of the British West Indies following a report on the visit to the region by the Parliamentary Under-Secretary of State for the Colonies, Major E.F.L. Wood (later to become Lord Halifax)12 and a later visit by a Royal Commission (the West India Royal Commission) under the chairmanship of Lord Moyne.13 These reforms involved the re-introduction of elected representation into the legislatures of the British West Indies and the continuance of nominated membership in those legislatures simultaneously.
It is in this context that the bicameral model in the former British West Indies must now be considered. That is the unique bicameral system that is to be found in eight of the twelve independent countries of the Commonwealth Caribbean. All of the second chambers in the Commonwealth Caribbean are called Senates and they are all nominated. The uniqueness of the bicameral system in these eight countries (Antigua and Barbuda, the Bahamas, Barbados, Belize, Grenada, Jamaica, St. Lucia, and Trinidad and Tobago) is established, firstly, on the basis of the fact that there are only seventeen countries in the British Commonwealth of Nations that have bicameral systems.
Of these seventeen countries with bicameral systems, six of them are federations - Australia, Canada, India, Malaysia, Pakistan, and South Africa. Of the remaining eleven unitary states in the Commonwealth, eight are found in the Commonwealth Caribbean (listed above) and the other non-Caribbean bicameral unitary states are Lesotho, Swaziland, and the United Kingdom.
The other unique aspect about Caribbean bicameralism is that, unlike Westminster, it is based on nomination through patronage with no security of tenure. At Westminster, there are four types of peers in the House of Lords - the hereditary peers, the life peers, the spiritual peers, and the law lords.
The hereditary peers are recruited into the House of Lords on the basis of succession to title through the principle of primogeniture, but are now limited to ninety-two. The life peers are appointed on the advice of the Prime Minister in accordance with the provisions of the Life Peerages Act 1958 and hold office for the duration of their lives with no rights of succession. The spiritual peers sit in the House of Lords by virtue of their senior positions in the Church of England. The law lords are appointed under the provisions of the Appellate Jurisdiction Act 1876 and they sit both as legislators and as judges, because the House of Lords is both the final court of appeal for the United Kingdom as well as a legislative body.
In the Commonwealth Caribbean there is no duality of functions between the Senate and the Supreme Court as they both perform different functions. Furthermore, dissolution does not affect the tenure of all peers at Westminster, whereas it affects the tenure of all Senators in the Senates of the Commonwealth Caribbean in that they vacate their seats with no guarantee of resumption.
Bicameralism has provided a way for the elected members of the former Legislative Councils to be separated from the nominated members who could be placed in another chamber so as to ensure the continued representation of various interests in the legislative process.
The fact that all of the Senates in the Commonwealth Caribbean are nominated is perhaps a direct result of the Crown Colony system of government that was introduced into the British West Indian colonies in the 19th century. While that system of government had as its hallmark the substitution of the principle of election by the principle of nomination in the colonial legislatures of the region, it should be noted that the shape, methods of composition and features of most of the Senates in the Commonwealth Caribbean appear to have been influenced by policy developments in Britain and other parts of the British Empire concerning proposals for the reform of the House of Lords and the export of those reform proposals to colonial legislatures (even though the reforms were not implemented in Britain itself). The genesis of the shape, methods of selection and features of most Commonwealth Caribbean Senates may be traced to 1918 and the Conference on the Reform of the Second Chamber14 in the United Kingdom under the chairmanship of Lord Bryce.
The Bryce Conference recommended the reform of the House of Lords in the following way:
These proposals were not implemented in the United Kingdom, however, they were apparently suitably modified and implemented in the Government of India Act 1935.15 That Act provided for the separation of India and Burma and introduced a bicameral system into Burma and the following Indian provinces - Madras, Bombay, Bengal, the United Provinces, Bihar and Assam.
In Burma there were to be 36 members of the Senate with 18 being chosen by members of the House of Representatives using the system of proportional representation of the single transferable vote type. The other 18 members were to be chosen by the Governor of Burma at his discretion. To some extent, a similar formula was applied in the Indian provincial legislatures named above. The lower House was known as the Legislative Assembly and the upper House was known as the Legislative Council.
The members of these Legislative Councils were elected by a combination of special electorates - the General electorate, the Moslem electorate, the European electorate and the Indian-Christian electorate - for some of the seats. Other members were elected on the basis of indirect election by members of the Legislative Assemblies in those provinces on the basis of proportional representation of the single transferable vote type. The remainder were appointed by the Governor at his discretion.
This rather unique type of second chamber had apparently been exported by Britain to the Indian subcontinent by 1935. The most interesting factor here was that it did not resemble the House of Lords; however, it resembled the Bryce proposals for the reform of the House of Lords. The continued export of this model did not end with the Burmese and Indian provincial bicameral systems.
In 1945, a constitutional commission under the chairmanship of Lord Soulbury visited Ceylon and subsequently recommended a bicameral system for Ceylon that was based on the Burmese Senate of 1935. This Ceylonese Senate was to consist of 30 members, 15 of whom were to be elected by members of the lower House on the basis of proportional representation of the single transferable vote type. The remaining 15 were to be chosen by the Governor-General in his discretion from among persons who had distinguished themselves in the public service, education, medicine, law, science, engineering, banking, commerce, industry or agriculture. These appointments would be made after the Governor-General had consulted the representatives of the appropriate occupation or profession.16
Indeed, in respect of Ceylon, the Soulbury Commission conceded the link with Burma in the following way:
We prefer the proposal that the Second Chamber should be selected partly by the First Chamber by means of the single transferable vote, and partly by nomination by the Governor-General; and we think that this method would ensure adequate representation of minorities in the Second Chamber. We understand that it has been adopted in Burma with satisfactory results.17These recommendations were accepted and embodied in the Ceylon (Constitution) Order-in-Council 1946.18
The export of the model did not end with the reforms instituted in the Indian subcontinent and Ceylon. In 1950, a constitutional commission visited British Guiana under the chairmanship of Sir John Waddington and had as its other members Professor Vincent Harlow and Dr. Rita Hinden. The commission, in its report, was divided two to one in favour of a bicameral system for British Guiana. Both Harlow and Hinden were in favour of a bicameral system, while the chairman recommended a unicameral system.
The upper House recommended by Harlow and Hinden was to be called the State Council and was to consist of nine members. The suggested formula was that six were to be nominated by the Governor from among outstanding persons in the counties of Berbice, Demerara and Essequibo (two persons from each county). Of the remaining three members, two were to be appointed by the Governor on the recommendation of the majority group in the House of Assembly (the lower House) and one was to be appointed by the Governor on the recommendation of the opposition in the House of Assembly.19
It is quite clear that the single transferable vote could not be employed in this instance because the numbers involved were too small. As a result, there was the introduction of nomination by political recommendation with the majority party being given the larger share of nominated seats. Naturally, indirect election would have produced a similar result for any party with a majority in the lower House.
The British Guiana experience might have been less significant were it not for the fact that Professor Harlow had supervised the doctoral thesis of Eric Williams at Oxford (Williams would subsequently become the Chief Minister in 1956, the Premier in 1959 and the Prime Minister of Trinidad and Tobago in 1962). Indeed, Williams did not hide the fact that he was in some way influenced by what Harlow had recommended for British Guiana. At a public meeting in Port-of-Spain, Trinidad on 19th July, 1955, he said:
In 1951 the two university members of the three-member British Guiana Constitutional Commission, one of whom supervised my doctor's thesis at Oxford, recommended the establishment of a bicameral legislature for British Guiana. What they had to say is of direct concern to the people of Trinidad and Tobago.20
At the same meeting, Williams proposed his own Senate for Trinidad and Tobago which would have consisted of 16 members broken down in the following way:
When Williams and the People's National Movement (PNM) came to power in 1956, constitutional reform was very much on the agenda. However, Williams altered his ideas somewhat to reflect his desire to dispense greater patronage. In 1958 he suggested the following formula through the Report of a Select Committee of the Trinidad and Tobago Legislative Council:21
By 1961, what was implemented was a Senate with the following composition:
Essentially, this formula for the Trinidad and Tobago Senate was the result of the cumulative British imperial experience with bicameral institutions in its Asian and Caribbean colonies. Eric Williams was clearly influenced in his views on bicameralism by Professor Harlow and it is reasonable to assume that Harlow would have been aware of the models that were being exported to Ceylon, Burma, the Indian provinces listed earlier as well as the recommendations of the Bryce Committee. In other words, what was exported to these colonies of Britain were the Bryce proposals for the reform of the House of Lords suitably modified with the passage of time. This was not the Westminster model.
What has happened since 1961 is that eight of the English-speaking countries that acquired their independence from Britain have adopted a bicameral formula reasonably similar (with the exception of Jamaica and the Bahamas) to the Trinidadian provisions of 1961. Furthermore, this has been maintained up to today to the extent that the Commonwealth Caribbean leads the way in the British Commonwealth with the number of bicameral systems (eight out of seventeen). Reform has not brought any changes to the idea and formula of bicameralism in the Commonwealth Caribbean.
This is so largely because the principle of nomination for seats in the legislature was the basis of the system of Crown Colony government that was implemented widely by the British Government in its Caribbean colonies. Under this system, it was the Governor of the colony who nominated persons to the Legislative Council to serve as legislators. The concept of representative government emerged in the twentieth century alongside the principle of nomination as the right to vote was gradually extended and the number of elected seats in the Legislative Councils of the region was also increased.
What is interesting is that there has been no attempt to alter these legislative systems in the post-independence era. In Trinidad and Tobago, there was constitutional reform in 1976 whereby the country became a republic and the Senate was retained and enlarged so that the new formula of appointment according to section 40(2) of the Constitution is as follows:
Of the thirty-one Senators -
- sixteen shall be appointed by the President acting in accordance with the advice of the Prime Minister;
- six shall be appointed by the President acting in accordance with the advice of the Leader of the Opposition; and
- nine shall be appointed by the President in his discretion from outstanding persons from economic or social or community organisations and other major fields of endeavour.23
The independence Constitution of 1962 contained essentially the same provisions for bicameralism as the 1961 constitution with some modifications.
Basically, there have always been three categories of Senators since the 1961 model was introduced in Trinidad and Tobago, that is Government, Opposition and Independent Senators. The last category owes no allegiance to any party or anyone and can vote without supporting a party line. The Independent Senators in Trinidad and Tobago (1962-1976) were to be appointed by the Governor-General on the advice of the Prime Minister on the basis of the Prime Minister determining which groups or interests in the society ought to be represented. Grenada followed this formula for its Senate at independence.
Apart from Jamaica and the Bahamas, all of the other independent countries of the Commonwealth Caribbean have included these three categories of Senators with minor variations in some cases. Jamaica does not include independent Senators in its Senate and only has a divide between Government and Opposition.
Another reason why there have not been any changes in the bicameral arrangements in the Commonwealth Caribbean can be found in the difficult procedures to be satisfied in amending these constitutions. The majority enjoyed by the Government may vary in the elected House depending on the outcome of every general election, however, there is always a fixed arithmetic in the Senate and this means that it is not always easy for any Government to secure a special majority in that House.
There are four unicameral legislatures in the Commonwealth Caribbean. These are to be found in Dominica, Guyana, St. Kitts-Nevis, and St. Vincent and the Grenadines. The general characteristics of these legislatures are essentially the same as far as Dominica, St. Vincent and the Grenadines and St. Kitts-Nevis are concerned. In Guyana, the composition of the National Assembly is fundamentally different from these three legislatures as it does not include the appointment of Senators on the advice of either the Prime Minister or the Leader of the Opposition. The principle of nomination is used alongside the principle of election in Dominica, St. Kitts-Nevis, and St. Vincent and the Grenadines. This is one of the legacies of the modifications to the unicameral legislatures under the Crown Colony system in the British West Indies that was first introduced in Jamaica in 1884.24 It was subsequently recommended for the other colonies of the British West Indies by Major E.F.L. Wood, Parliamentary Under-Secretary of State for the Colonies following his visit to the region in 1921-22.25
The National Assembly consists of sixty-five members. Fifty-three members are elected in accordance with the party list system of proportional representation. There are ten representatives from the regional democratic councils (one for each of the ten regions into which Guyana is divided). These representatives are elected by the regional democratic councils from among their members to serve in the National Assembly. There are two representatives elected from among the members of the National Congress of Local Democratic Organs. The members of this body consist of persons elected to it from among members of regional democratic councils.26
In Guyana, the composition of the National Assembly is designed to reflect as far as possible the will of the electorate on a mathematical basis through the use of the party list system of proportional representation. However, it is clear that an attempt has been made to have some kind of regional representation which the party list system does not provide. To this end, representatives of the regional democratic councils have been given the right to elect individuals from among their number to sit in the National Assembly. This happens in two ways.
Firstly, the regional democratic councils themselves elect one member each from each council to sit in the National Assembly. Secondly, the National Congress of Local Democratic Organs elects two members from among their representatives to sit in the National Assembly.
The actual method of election is adequately summarised in respect of the general election of 1992 as follows:
The political parties that contested the elections were represented by lists identifying 53 to 65 candidates. Party lists were submitted to the chief election officer on Sept. 3, Nomination Day, and each list was headed by the party's presidential candidate. The presidential candidate whose party list receives the most votes is elected president. The 53 "national" seats in parliament are selected by an electoral quota, which represents the total number of votes divided by 53. The number of votes cast for any list of candidates is divided by the electoral quota to determine the number of parliamentary seats each party will fill.The remaining 12 "regional" seats in the National Assembly are determined through a complex series of votes, which began with the elections on Oct. 5. The regional vote elected members to each of Guyana's ten Regional Democratic Councils. The number of seats in each Regional Democratic Council (R.D.C.) is approximately proportionate to its population and was contested by parties based on their perceived local support. Following the official declaration of the results of the regional vote by the chief election officer, each R.D.C. met on Dec. 3 and elected from among its members one parliamentary representative to fill each of the ten "regional" seats in the National Assembly. Each R.D.C. also elected two of its members to serve on the National Congress of Local Democratic Organs (N.C.L.D.O.). On Dec. 10, the N.C.L.D.O. met and elected two of its members to fill the two remaining seats in parliament.27
Clearly, this system of election to the National Assembly can produce a result whereby the President may be elected from one party and the majority in the National Assembly may be controlled by another party. This is so owing to the fact that the presidency is determined on the basis of the first past-the-post system of election, while the National Assembly not only uses the party list system of proportional representation, but also integrates regional and local government representatives into the parliament.
This is unlike the other three unicameral Parliaments in the Commonwealth Caribbean that ensure the preservation of a government majority by allowing more Senators to be nominated by the Prime Minister than by the Leader of the Opposition. Perhaps the key to this fundamental difference is the fact that Guyana operates a presidential system, while Dominica, St. Kitts-Nevis, and St. Vincent and the Grenadines operate a parliamentary system.
In December 2000 following the general election of December 11th, the Prime Minister, Mr. Basdeo Panday, advised President Arthur N.R. Robinson to appoint seven persons who were defeated general election candidates of his party, the United National Congress (U.N.C.), as Senators and also as Ministers in the government that he was invited to form. The President refused to act on the advice of the Prime Minister to appoint as Senators and as Ministers seven persons who were defeated candidates at the 2000 general election. Under the constitution, there was no disqualification to prevent the appointment of defeated candidates as Senators.
In both instances, the Prime Minister was exercising powers ascribed to him under the Constitution, while it cannot be ascertained where the President derived his authority to refuse to carry out the advice of the Prime Minister as tendered to him under the provisions of the Constitution. According to section 40(2)(a) of the Constitution:
(2) Of the thirty-one Senators -
- sixteen shall be appointed by the President acting in accordance with the advice of the Prime Minister;...28
Additionally, the Constitution provides that Ministers other than the Prime Minister may be appointed either from among the members of the House of Representatives or the Senators. The exact words of the Constitution are:
The Ministers other than the Prime Minister shall be such persons as the President, acting in accordance with the advice of the Prime Minister, shall appoint from among the members of the House of Representatives and the Senators.29
The positions laid out in the Constitution with regard to the appointments of Senators and Ministers are clear and unambiguous. There is no discretion given to the President to either refer or refuse the advice of the Prime Minister as long as the qualifications and disqualifications surrounding the appointment of Senators in the Constitution30 are not violated.
Furthermore, it should be noted that there is no category of refusal allowed in the Constitution insofar as the general exercise of powers by the President is concerned. Indeed, there is no provision for any formal power of referral in the Constitution that may be exercised by the President under any circumstances.31 In the absence of such provisions, one cannot seek to infer that such powers may be relied upon in situations that the President may deem appropriate in his own deliberate judgment.
To confer such powers upon the President would have the effect of changing the character of the office itself that would render it inconsistent with its own intended character of being quasi-ceremonial. Furthermore, any future President may wish to follow the example of President Robinson in relation to any future Prime Minister in areas other than the refusal to appoint defeated candidates as Senators. Those other areas may include the refusal to act on the advice of the Cabinet in relation to the general direction and control of policy.
President Robinson earlier made reference to the right of the President to advise, to counsel and to warn the Prime Minister32 in relation to the general discharge of the duties of his office. In many respects, the President has borrowed this concept from the British Monarchy in relation to communications between the Sovereign and the Prime Minister. These rights are not to be confused with any attempt by the Sovereign to direct and control the Prime Minister, since it is the latter who is ministerially responsible to Parliament, whereas the Sovereign bears no responsibility whatsoever for public policy. According to one constitutional scholar:
The existence of the rights to advise and to warn must mean that the Queen will have personal views about some political issues which will not coincide with those of the Prime Minister and the Cabinet. Indeed, the opinions of the Queen and of her government could not always be the same unless she were to undergo a very odd change of heart and mind on the main issues of the day with every change of party government. The Sovereign may urge her view on the Prime Minister, especially at the weekly audience (at which the two are alone and no formal record is kept) - but in strict confidence, and in the end normally deferring to any contrary view persisted in by the Prime Minister.33
This quotation epitomises the position with the British Sovereign and the British Prime Minister. In many respects, it captures the spirit of what the relationship between the Prime Minister and the Head of State ought to be in a parliamentary democracy.
Eventually, on 14th February, 2001, President Robinson wrote to Prime Minister Panday to indicate that he was prepared to act on his advice to appoint the seven defeated candidates as Senators and that he would await an indication from the Prime Minister as to which of those Senators he would like to have appointed as Ministers owing to the fact that the Prime Minister had altered his original advice (between 22nd December, 2000 and 2nd January, 2001) in respect of their appointments as Ministers. He also went on to say in that letter:
Mindful of the growing sense of conflict in the nation which will be further escalated by a prolonged contest between the Attorney General and the Office of the President, my course is clear, though not without reservations.34
Indeed, the then Attorney General, Mr. Ramesh Lawrence Maharaj, had been engaged in a public relations exercise that was critical of the actions of the President in refusing to appoint the defeated candidates as Senators in accordance with the advice of the Prime Minister.
On January 5th, 2001, President Arthur N.R. Robinson addressed the citizens of Trinidad and Tobago and highlighted the fact that he could not find any examples from any part of the world where a large number of defeated candidates were appointed as Senators and as Ministers given the kind of political system that we operate. In fact, the exact words of President Robinson were:
Now a lot of people, including myself, hold the view that once you start using people who have been, to put it in this way, rejected by the electorate in a representative and democratic system, the numbers can increase, as indeed the numbers have increased now from one or two in the past to now seven. It is unprecedented. I have tried to get information all over the world and nowhere can I get information to support that move in the kind of system in which we operate.35
His letter of 14th February, 2001 to the Prime Minister was a clear departure from his view advocated on 5th January, 2001. The reality of the situation was that the Constitution did not prohibit the appointment of such persons to the Senate and this was clearly a case of political will overcoming electoral will and the President had to back down on his refusal. Additionally, there were examples from Grenada of defeated candidates being appointed as Senators and Ministers that contradicted the views of President Robinson and his inability to find examples from other countries.
It is interesting to note that four Commonwealth Caribbean countries have among their disqualifications in respect of the appointment of Senators a disqualification for standing for election to the legislature. These four countries are Dominica,36 St. Lucia,37 St. Vincent and the Grenadines,38 and St. Kitts-Nevis.39
As a consequence of these constitutional provisions, defeated candidates cannot be appointed as Senators in these four countries in the Commonwealth Caribbean.
When President Arthur N.R. Robinson addressed the citizens of Trinidad and Tobago on 5th January, 2001 and highlighted the fact that he could not find any examples from any part of the world where a large number of defeated candidates were appointed as Senators and as Ministers given the kind of political system that is operated in Trinidad and Tobago, it was obvious that neither did President Robinson nor his staff do an adequate search on this issue because Grenada would have provided him with bountiful examples of exactly what he claimed he could not find.
Under the Grenadian constitution, there are thirteen Senators of whom the Governor-General appoints seven on the advice of the Prime Minister, three on the advice of the Leader of the Opposition, and three on the advice of the Prime Minister after the Prime Minister has consulted those organisations or interests that the Prime Minister thinks ought to be represented.40
It is quite possible that President Robinson may not have misled the citizens of Trinidad and Tobago if he had done his research properly before engaging in a high stakes political game with the Prime Minister that was ill-conceived, because it was based on either ignorance of the facts or a deliberate attempt to prevent the U.N.C. administration led by Prime Minister Basdeo Panday from being able to embark on its second term in office smoothly.
In the Parliament that was opened in Grenada following the general election of June 1995, there were seven defeated candidates among the thirteen Senators overall. Out of the seven Senators that the Governor-General appointed on the advice of the Prime Minister, Dr. Keith Mitchell, five of them were defeated candidates and were given either Ministerial or Parliamentary Secretary status. These Senators were:
| Senator Lawrence Joseph | Minister of Labour, Legal Affairs and Local Government |
| Senator Gregory Bowen | Minister of Works, Communications and Public Utilities |
| Senator Joslyn Whiteman | Minister of Agriculture, Forestry, Lands and Fisheries |
| Senator Dr. Roger Radix | Minister of State in the Ministry of Health, Housing and the Environment |
| Senator Tobias Clement | Parliamentary Secretary in the Ministry of Works responsible for Carriacou and Petit Martinique Affairs |
All of these Senators had lost their seats in the general election that immediately preceded their appointments as follows: Lawrence Joseph (St. Andrew South West), Gregory Bowen (St. George South East), Joslyn Whiteman (St. David), Dr. Roger Radix (St. George North East) and Tobias Clement (Carriacou and Petit Martinique).
Prime Minister Dr. Keith Mitchell was not alone in advising the Governor-General to appoint defeated candidates as Senators. The Leader of the Opposition, George Brizan, advised the Governor-General to appoint Livingston Nelson (defeated in St. Andrew North East) and Ann Peters (defeated in St. Andrew South West) as Senators out of his total allocation of three Senators under the Constitution.41
As a consequence of these appointments, more than half of the total membership of the Grenadian Senate at the opening of Parliament following the general election of June 1995 was made up of defeated candidates.
It is also interesting to note that Dr. Mitchell's administration in 1995 started off with nine full Ministerial appointments of whom three were Senators who were defeated candidates. There were four Ministers of State of whom two were Senators who were defeated candidates. There were two Parliamentary Secretaries of whom one was a Senator who was a defeated candidate.
Indeed, the trend of appointing defeated candidates as Senators was continued in Grenada after the New National Party (NNP) led by Dr. Keith Mitchell won all fifteen seats in the Grenada House of Representatives at the general election in January 1999. Parliament was opened on 5th February, 1999 and there was no Leader of the Opposition.
In this situation, the Governor-General exercised those of his powers under the Constitution where he can act in his own deliberate judgment in cases where he would otherwise have been required to act on the advice of the Leader of the Opposition.42 As a result, he appointed three Senators on 10th February,1999 who were deemed to be Opposition Senators.
Acting in his own deliberate judgment, the Governor-General, Sir Daniel Williams, K.C.M.G., Q.C., appointed three defeated candidates as Senators, namely Lincoln St. Louis (defeated G.U.L.P. candidate for St. George South East), Dr. Terrence Marryshow (defeated M.B.P.M. candidate for the Town of St. George), and Kent Joseph (defeated N.D.C. candidate for the Town of St. George).43
If these facts were known to President Robinson when he spoke to the citizens of Trinidad and Tobago in January 2001, he would not have misled the country into believing that this phenomenon of defeated candidates as Senators and Ministers had not happened anywhere else in the world.
Both Grenada and Trinidad and Tobago operate bicameral parliamentary democracies in which provision is made for the appointment of Senators and there are no restrictions on the appointment of defeated candidates as Senators. The 1995 and 1999 general elections in Grenada and the 1995 and 2000 general elections in Trinidad and Tobago have been used as case studies from which data for the ensuing Parliaments could be gleaned owing to their close proximity in time. This ensures that the comparison is made within reasonably similar time frames which can facilitate the relevance of the analysis.
The applicability of this approach is based on the fact that there is credible data on the subject matter in both Grenada and Trinidad and Tobago which has not been utilised in a comparative way. Additionally, there was Presidential ignorance of the pertinent facts in relation to this subject in Trinidad and Tobago where the issue became a matter of national debate.
On the other hand, in Grenada, all of the main constitutional actors (the Governor-General, the Prime Minister and the Leader of the Opposition) drew upon defeated candidates as a pool from which to recruit legislators to serve in the Parliament of Grenada and even in the Executive branch of Government without substantive controversy equal to Trinidad and Tobago.
There was Presidential resistance in Trinidad and Tobago that was based on incorrect assumptions about democratic practices in other countries, particularly Grenada. Subsequently, there was Presidential capitulation after fifty-five days (on 14th February, 2001) without any substantive reasons being advanced for the Presidential volte face. In Grenada, there has been concurrence between the Governor-General, the Prime Minister and the Leader of the Opposition on the use of defeated candidates in the Senate of Grenada.
The fundamental difference between the two countries was the fact that in Trinidad and Tobago, only the Prime Minister, Basdeo Panday, had advised the President on the appointment of defeated candidates as Senators in 1995 (one Senator who was a defeated candidate) and in 2000 (seven Senators who were defeated candidates). The Leader of the Opposition, Patrick Manning, did not agree with that approach and declined to advise on the appointment of any defeated candidates as Senators in 1995 and in 2000.
The position of President Arthur N.R. Robinson was somewhat tenuous owing to the fact that, prior to being elected President, he held the balance of power in a coalition government with Prime Minister Panday in 1995 and helped to elect a defeated candidate (Hector McClean) as the Speaker of the House of Representatives at the ceremonial opening of Parliament. Furthermore, at the ceremonial opening of the Tobago House of Assembly in 1980, he and his colleagues in the then Democratic Action Congress (D.A.C.) succeeded in their nomination of Dr. J.D. Elder (the defeated candidate for L'Anse Fourmi/Speyside) as a Councillor in the Tobago House of Assembly immediately after his defeat at the polls. Extensive research suggests that this was the first example of a defeated candidate ever being recruited into a nominated position in any legislative or quasi-legislative body in Trinidad and Tobago in the post-independence period.
In Grenada in 1995, both the Prime Minister, Dr. Keith Mitchell, and the Leader of the Opposition, George Brizan, advised the Governor-General to appoint persons who were defeated as candidates at the general election as Senators. In 1999, the Governor-General, Sir Daniel Williams, K.C.M.G., Q.C., appointed defeated candidates as Senators who would ordinarily have been appointed by him acting on the advice of the Leader of the Opposition, if there was one after the 1999 general election. However, there was no one eligible for appointment to that office by virtue of the fact that the N.N.P. led by Dr. Keith Mitchell won all fifteen seats at the general election. As a consequence of that, the Governor-General exercised his powers under section 62(2) of the Grenadian Constitution to appoint those Senators in his own deliberate judgment.
In the circumstances, the fundamental difference between Grenada and Trinidad and Tobago on this subject was the fact that in Trinidad and Tobago the pursuit of this method of recruitment to the Parliament was one-sided, whereas in Grenada it was accepted by all parties, namely the Government, the Opposition and the Governor-General.
The evolution of the political systems in Grenada and in Trinidad and Tobago has seen the retention of the principle of nomination for the Legislature as an additional form of recruitment together with the principle of election. In both instances, these Parliaments have had an apparent loophole created for them insofar as their Senates have no prohibition on the appointment of defeated candidates as Senators.
Additionally, the Executive branch of government has no prohibition on the appointment of Ministers who were defeated candidates at the immediately preceding general election because Ministers other than the Prime Minister may be drawn from either the House of Representatives or the Senate. Therefore, defeated candidates who are appointed Senators can then be appointed Ministers.
In all of these instances, it is clear that political will is superior to electoral will. However, it should be noted that the ability to exercise political will can only come from the cumulative result of the electoral will as expressed at a general election. The only way to balance the scales between political will and electoral will on the issue of defeated candidates as parliamentarians is to introduce constitutional prohibitions to prevent their appointment as Senators or to place a limit on their numbers. However, that in itself would also have to be a function of political will.
1
Sir W. Dale, The Modern Commonwealth (London: Butterworth & Co., 1983), p. 10 fn. 3.2
Sir K. Roberts-Wray, Commonwealth and Colonial Law (London: Stevens & Sons, 1966), p. 45.3
Roberts-Wray, Commonwealth and Colonial Law, p. 44.4
Anne Thurston, Sources for Colonial Studies in the Public Record Office (London: The Stationery Office, Second Impression, 1997), Vol. I., p. 255.5
Thurston, Sources for Colonial Studies in the Public Record Office, p. 252.6
Thurston, Sources for Colonial Studies in the Public Record Office, p. 247.7
Roberts-Wray, Commonwealth and Colonial Law, p. 850.8
Thurston, Sources for Colonial Studies in the Public Record Office, p. 246.9
Roberts-Wray, Commonwealth and Colonial Law, p. 811.10
Roberts-Wray, Commonwealth and Colonial Law, p. 845.11
Roberts-Wray, Commonwealth and Colonial Law, p. 815.12
Cmnd. 1679 (1922).13
Cmnd. 6607 (1945).14
Cmnd. 9038 (1918).15
25 & 26 Geo.5, c.42.16
Cmnd. 6677 (1945).17
Cmnd. 6677 (1945), para. 303.18
S.R.& O.1946, p. 2248.19
Colonial No. 280, 1951.20
E. Williams, Constitution Reform in Trinidad and Tobago, (Trinidad: Public Affairs Pamphlet No.2, Teachers' Educational and Cultural Association, Trinidad, 1955), p. 23.21
Council Paper No.11 / 1959.22
S.I. 1961, No.1192, s. 15(2).23
Laws of Trinidad and Tobago: Chapter 1:01, s. 40(2).24
See Report by the Honourable E.F.L. Wood, M.P. (Parliamentary Under-Secretary for the Colonies) On His Visit to the West Indies and British Guiana, Cmnd. 1679 (London: H.M.S.O., 1922), p. 11.25
Report by the Honourable E.F.L. Wood, M.P. (Parliamentary Under-Secretary for the Colonies) On His Visit to the West Indies and British Guiana, Cmnd. 1679 (London: H.M.S.O., 1922), p. 8.26
Constitution of Guyana 1980, Act No. 2 / 1980, Schedule, ss.52, 72, 80.27
Report of the Council of Freely Elected Heads of Government, Observing Guyana's Electoral Process, 1990-92 (Atlanta: The Carter Center of Emory University, Special Report # 3, 1993), p. 28.28
Laws of Trinidad and Tobago: Chapter 1:01, s. 40(2)(a).29
Laws of Trinidad and Tobago: Chapter 1:01, s. 76(3).30
Laws of Trinidad and Tobago, Ch. 1:01, Schedule, ss. 41 and 42.31
Laws of Trinidad and Tobago, Ch. 1:01, Schedule, s. 80(1) makes provision that the President shall act, in general, on the advice of the Cabinet or on the advice of a Minister acting under the general authority of the Cabinet. The exceptions to this rule are cases where the President is required to act after consultation or in his own deliberate judgment or on the advice of some person or authority other than the Cabinet.32
During a standoff between Prime Minister Panday and President Robinson in January 2000 over the refusal of President Robinson to revoke the appointments of two Senators and his refusal to appoint two other persons in their places on the advice of Prime Minister Panday, one of the reasons advanced by President Robinson for not acting on the advice of the Prime Minister was his right to advise, to counsel and to warn the Prime Minister against certain courses of action. He eventually revoked the appointments and made the new ones in their place on 3rd February 2000.33
Rodney Brazier, Constitutional Practice (Oxford: Oxford University Press, 3rd Edition, 1999), p. 188.34
Letter from President Robinson to Prime Minister Panday published in the Trinidad Guardian, Daily Express, and Newsday on 15th February, 2001. These three daily newspapers are published in Trinidad and Tobago.35
'President Robinson's Refusal To Appoint Government Senators' (Port-of-Spain: Office of the Attorney General and Ministry of Legal Affairs, February 2001), p. 5.36
Dominica Constitution Order 1978, S.I.1978 / No.1027, s. 32(4).37
St. Lucia Constitution Order 1978, S.I.1978 / No.1901, s. 26(3).38
St. Vincent Constitution Order 1979, S.I. 1979 / No.916, s. 26(4).39
St. Kitts-Nevis Constitution Order 1983, S.I.1983/No.881, s. 28(4).40
The Grenada Constitution Order 1973 (S.I. 1973 / No. 2155), s. 24.41
Interview with Mr. Abel Newton, Clerk of the Parliament of Grenada, York House, St. George's, Grenada, Friday 30th March, 2001.42
The Grenada Constitution Order 1973 (S.I. 1973 / No. 2155), s. 62(2).43
Interview with Mr. Abel Newton, Clerk of the Parliament of Grenada, York House, St. George's, Grenada, Friday 30th March, 2001.© Hamid A. Ghany, 2002. HTML last revised 15 February 2002.
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