Final Arbiters
The stalemate between the President and the Prime Minister over the matter of appointment as ministers of seven losers in the recent parliamentary elections continues. Mr. Panday insists that President Robinson is violating the constitution by refusing to appoint them.
Mr. Robinson might yet appoint them, but he is awaiting a convincing legal refutation of his stand that to appoint them would be to act against the spirit of the constitution and to endorse a dictatorial violation of the democratic principle of government by consent. In the meantime, the country has become a kind of constituent assembly with representatives of different interest groups having their say, but without a mechanism for arriving at a decision, and one insistent clamour is that we must overhaul the constitution. How do we arrive at a decision?
That's one of the important questions that the stalemate has thrown up, even for those supporters of Panday's who are not at this time saying that the constitution needs to be reformed. For them, it is Robinson the man, not the constitution as document, which is at fault. He is letting his moral and democratic sense make him violate the plain letter of the law. And we arrive at a decision by his recanting and appointing the seven losers, as the constitution in plain letter requires him to.
But though that approach is supported by presidential tradition (before this development, presidents, including Robinson, have routinely followed the advice of prime ministers, haven't they?), it quite clearly is not one that is automatic, and the reason is that all things, even those that seem to be crystal clear, are open to interpretation. When presidents acted in the past, they did so by a certain interpretation of things. And when Robinson acted in the present matter, he did so also by a certain interpretation of things.
Crucially, this time, the prime minister's advice is unprecedented in terms of the number of losers (seven) he wants inducted as ministers. That advice triggered Robinson's novel interpretation, which is that to appoint so many losers would be to insult and mock the will of the constituencies that rejected them and turn our democracy into a dictatorship. The interpretation was informed by the preamble of the constitution read together with the sections on prime ministerial advice and presidential responsibility. It was also informed by philosophical thinking on democratic governance. The result is a position that boggles the minds of the literalists and traditionalists, but that is welcome and clear as day to those who attend to the big picture.
The arguments of the literalists have been less than profound, to put matters summarily; indeed, their makers have not bothered to be profound. Such arguments clearly won't change Robinson's mind, and apparently no argument that shatters the theoretical bases of his action has yet been put forward. So we can't arrive at a decision by Robinson recanting.
What then?
We have at least two more options. One of them is that the losers could embrace Robinson's sense of democracy and refuse Panday's offer to them to be ministers in the face of their rejection by their constituencies. But that doesn't seem about to happen, perhaps for reasons of economic need and deficient personal autonomy. The other option is for Panday to accept that the office of President is the Final Arbiter in matters like this, and not the office of Prime Minister. That the President is Final Arbiter should be clear from at least two facts: 1) the Prime Minister has to go to him for approval (okay, acceptance) of his choices for the position of senator and minister; and 2) if the President refuses him, the President's refusal can't be overturned by a court of law.
Yes, the public's debate on the stalemate should focus much more on that second option: the need for the Prime Minister to accept the decisions of the President in the latter's capacity as Final Arbiter.
Of course, there could be unwilling prime ministerial acceptance, but in that case, the Prime Minister could seek to change the law in parliament. Under present law, he can only get the change if some of his political adversaries in the parliament agree with him, and that is not a bad state of affairs for democratic balance. Parliament would then be another Final Arbiter. One final arbiter in the executive branch of government, another in the legislative branch.
However we turn on the issue, we cannot get away from the need for constitutional reform.
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