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Let’s get constitutional

Simply put, where arises the issue of electing or selecting a parliamentary Leader of the Opposition or a parliamentary leader of the governing party — or even the Premier, for that matter — this process can be effectively accomplished in law only under the relevant provisions of the Bermuda Constitutional Order 1968, and not under any provision whatsoever of a party constitution.

In its entirety, a party constitution does not have the constitutional authority, jurisdiction or force of law to make such elections, selections or appointments.

“Parliamentary” is the operative word here. In these circumstances, the party constitution can be only tangentially relevant or facilitative.

Further, and in respect of the election or selection of the parliamentary Leader of the Opposition, or Opposition parliamentary leader — as opposed to the party leader of any given political party — only the name of that Member of Parliament among the Opposition MPs who secures by vote or otherwise the “confidence or support” of the majority of those MPs may be forwarded to the Governor — directly or indirectly through the party mechanisms — as the person elected or selected to be the parliamentary Leader of the Opposition Party.

That person will be subsequently sworn in as the parliamentary Leader of the Opposition by the Governor in a timely manner, as he is obligated under the Bermuda Constitution and the law. This process, under the Constitution, is precisely what was followed by Craig Cannonier and the seven parliamentary members of the One Bermuda Alliance who supported him.

Although there might have been a moral obligation, or even an OBA party constitutional expectation explicitly or implicitly, in reality there was no legal or constitutional obligation for Cannonier to engage the OBA party constitution in respect of his appointment as Opposition parliamentary leader at all. He, of course, could have informed the OBA party of such a development as a courtesy.

For completeness on this issue, the parliamentary leader of the governing party — or the Premier of the governing party or Government of Bermuda — is similarly selected or elected, except that the name of the Member of Parliament who enjoys the “confidence or support” of the majority of all of the MPs, including Opposition and independent Members, shall be processed in the manner earlier described by the Governor as the parliamentary leader of the governing party or Premier of the country.

Theoretically, under the Constitution, that person could also be an independent MP or, indeed, a member of the Opposition party if a majority of the MPs, for any reason, gave that person their “confidence or support”.

Accordingly, there should now be no confusion between the two posts of parliamentary leader and party leader of the opposition party — or governing party, for that matter — as these are two separate and distinct positions governed by two separate and distinct constitutions. Where there is a clash between any provision of the Constitution and any provision of any given party constitution, the Constitution prevails. The Constitution reigns supreme.

Where, however, as a matter of preference a political party wishes the party leader and the parliamentary leader — when in government or not — to be one and the same person, that party's constitution may, by agreement, understanding, appropriate clause or convention, provide for such an accommodation by stipulating words to the effect that “any person who aspires to be parliamentary leader shall first, under the appropriate section of the party constitution, be duly elected or selected party leader. Any member violating such requirement in any manner shall be disciplined, suspended or expelled from the party”.

Although it was fiercely debated many years before in the 1970s between supporters of Wilfred “Mose” Allen, a founding member of the Progressive Labour Party, and supporters of Dame Lois Browne-Evans, the party encountered this precise issue of a clash between the posts of party leader and parliamentary leader or premier, some 15 years ago when it was thought erroneously that Dame Jennifer Smith had been ousted as Premier on the night of a PLP victory at the polls on July 24, 2003. She was in fact prevented from becoming premier, not ousted as premier, by some PLP Members of Parliament who opposed her becoming such.

The post of premier had not been covered under the Bermuda Constitution at that point in time. However, 11 of the 22 freshly elected PLP MPs decided not to give Dame Jennifer their “confidence or support” under the Constitution to be government parliamentary leader or premier in the manner described earlier.

Accordingly, to become premier, Dame Jennifer would have had to rely on the remaining newly elected 11 PLP MPs. And to claim having the “confidence or support” of a majority of all the newly elected MPs, as required under the Constitution, she would have had to rely further on the “confidence or support” of at least eight of the 14 recently elected United Bermuda Party MPs. This, of course, she would not do, as to do so would require her forming a coalition with the UBP and bringing her a great deal of shame, embarrassment, prejudice and compromise to any agenda she might have wished to pursue.

She was well stuck between the proverbial rock and a hard place.

She did not have the preferable numbers to go to the Governor under the Constitution to become government parliamentary leader or premier. It is important to note here that, unlike the OBA, at no time did the 11 non-supporting PLP MPs challenge Dame Jennifer as party leader, which they accepted under the PLP constitution. Their challenge was that they did not wish for Dame Jennifer to be Premier of Bermuda. They used the Bermuda Constitution, not the PLP constitution, to accomplish that wish.

This stalemate was finally broken under the party machinery and primarily through the apparatus of the PLP Delegates Conferences, which eventually produced under the Constitution, a government parliamentary leader or premier, Alex Scott, who was first elected to the post of party leader.

It is for these reasons, and purely from a political analyst's point of view, that I disagree with the less than democratic approach of the OBA, when compared with the PLP, in ensuring that the Opposition party leader and the opposition parliamentary leader become on October 12, 2018 one and the same person — Craig Cannonier.

The deck is being stacked to produce this result by manipulating the OBA constitution. In this regard, it is bizarre, fallacious, contrived and undemocratic to state that only the Members of Parliament can vote for the party leader when the OBA constitution suggested otherwise. The rest of the OBA membership is to be confined or restricted to voting only for the party chair.

Are the eight Opposition MPs who voted for Cannonier as the parliamentary leader — a vote for himself counting as the eighth — going to vote against him becoming party leader? Not likely.

In short, it appears that the rest of the OBA membership is being disenfranchised or barred from participating in the choice of their party leader, having already been excluded or barred from having a say in who was to become their parliamentary leader. That is odd, and therein lies the makings of a dictatorship of the OBA party at the hands of its parliamentarians, who have hijacked the OBA party holus-bolus.

This was precisely the position that the PLP halted and controlled somewhat by the interposing of a delegates conference apparatus, where the wider membership would have a greater say and direct participation in the choice of party leader — and by extension, or indirectly, parliamentary leader. The fledgeling UBP-inspired OBA constitution, in respect of its democratic evolution, has quite a way to go.

As a footnote, and putting aside the name-calling of “the Politburo” and the like, Mose Allen's idea of having a party leader fundamentally and distinctly separate from a parliamentary leader, a likely more transitory role in any event, to prevent the “parliamentarian tail from wagging the party dog” — as is being played out quite blatantly in the OBA — may well have had a great deal of merit in reposing the greatest degree of control and democracy in the hands of the greatest number of people in any given political party. Its membership.

Food for thought, eh?

Philip Perinchief, a former Cabinet minister, was the Attorney-General under the Progressive Labour Party government between October 2006 and December 2007

Night of triumph: then One Bermuda Alliance leader Craig Cannonier raises his arms in victory on the night of December 17, 2012 at party headquarters in the Vasco da Gama Club building on Reid Street, after his party took 19 of the 36 seat House of Assembly, his first attempt at gaining political office. Mr Cannonier has retaken leadership of the party (Photograph by Akil Simmons)

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Published September 28, 2018 at 9:00 am (Updated September 28, 2018 at 11:07 am)

Let’s get constitutional

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