By J. Emile Ferdinand
In light of the upcoming general election scheduled for 25th January 2010, this issue is both topical and important. The process is governed by the Constitution, as interpreted by the Courts.
Section 52 of the Constitution states that:
(1) “There shall be a Prime Minister of Saint Christopher and Nevis who shall be appointed by the Governor General.”
(2) “Whenever the Governor-General has occasion to appoint a Prime Minister he shall appoint a Representative who appears to him likely to command the support of the majority of the Representatives.”
Section 52 (10) of the Constitution says that in the exercise of the power to appoint a Prime Minister conferred upon him by subsection 52 (2), “the Governor-General shall act in his own deliberate judgment.”
In October 1994 the Eastern Caribbean Court of Appeal delivered a judgment in St. Kitts which added considerable clarity to the exercise of the Governor General’s authority under Section 52 of the Constitution. The then Chief Justice Sir Vincent Floissac, delivering the Court’s judgment, stated in that case:
“In his assessment as to whether a proposed Prime Minister is likely to command the support of the majority of the Representatives, the Governor-General is free to consult not only the Representatives themselves but other persons who should know how the Representatives are likely to behave under certain pressures and circumstances.” [see Re Blake (1994) 47 WIR 174 at page 181]
Chief Justice Floissac then quoted with apparent approval from a 1963 Privy Council decision in a Nigerian appeal in which it was said:
"By the words they have employed in…[the] formula, `it appears to him', the judgment as to the support enjoyed by a Premier [which was the office under consideration in the African case] is left to the Governor's own assessment and there is no limitation as to the material on which he is to base his judgment or the contacts to which he may resort for the purpose. There would have been no difficulty at all in so limiting him if it had been intended to do so.”
The judgment of our Court of Appeal in 1994 was that:
“The answer to the question who is ‘likely to command the support of the majority of the Representatives’ is subjective and the Constitution makes it subjective to the Governor-General's personal judgment. The answer is an elusive issue which is not justifiable….”
“… The Constitution itself provides the procedure for determining whether the Governor-General's decision and the opinion on which the decision was based were correct. That procedure is a motion of no confidence in the Government. The outcome of such a motion would establish conclusively whether or not the Prime Minister in fact commands the support of the majority of the representatives.”
A motion of no confidence can only be made after the National Assembly is sworn in, which must take place within 90 days of the election date.
Therefore, to summarize the law on the topic and dispel some misconceptions:
1. No person can be appointed as Prime Minister unless he is an elected member of the National Assembly.
2. Following a general election, the Governor General has the constitutional authority to appoint as Prime Minister any Representative “who appears to him likely to command the support” of the majority of the Representatives.
3. The Governor General’s subjective, personal judgment can be informed by any consultations, discussions or materials that he considers may be relevant; and he is not legally obliged to divulge to the Courts or any other authority or person what information he has taken into account in making his choice.
4. The Courts will not rule on whether the Governor General’s choice is correct or not, because:
(a) the Governor General’s decision is a matter for his subjective, personal judgment; and
(b) the constitutional procedure for determining whether or not the Governor General’s decision was correct is a motion of no confidence in the Government, the outcome of which would establish conclusively whether or not the person appointed as Prime Minister in fact commands the support of the majority of the Representatives.
If the motion is carried, then it will be clear that the person appointed did not command the necessary support, but if the motion fails, this indicates that no other person is more “likely to command the support” of the majority of the Representatives.
5. “Likely to command the support of the majority” does not mean or require that the person appointed as Prime Minister must actually have the support of more than half of the total number of elected Representatives, but rather simply that he is likely to have the support of more Representatives in Parliament than anyone else (or at least that no other Representative is likely to have the support of more Representatives than he does).
6. Which political party or individual elected Representative obtains the largest percentage of the popular vote, or the biggest margin of victory in terms of overall votes, is irrelevant to the appointment of a Prime Minister.
7. The Constitution says nothing about the appointment of a Prime Minister being based on party affiliation. The Constitution does not mention political parties or the leaders of political parties anywhere in the relevant provisions. The criteria that the Governor General is constitutionally required to use when choosing a Prime Minister is to determine the likelihood of support from the elected Members of Parliament, not the likelihood of support within any political party or parties or in terms of the popular vote overall or the margin of victory. It is this fact that enabled (now The Right Honourable Sir) James Mitchell to become Prime Minister of St. Vincent & the Grenadines following the general election there in 1972 although he was an independent candidate, thus with only one seat. Elected Representatives are elected in their personal names and are free on an individual basis to determine their support for any other elected Representative to be Prime Minister.
8. In essence, it is the Governor General’s call, with the power to overturn a wrong call resting in the elected Representatives in Parliament – which is exactly where it should be in a parliamentary democracy.
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