The Curious Case of the Missing Vacancy

Last week three persons asked me whether I thought the office of the Leader of Opposition is vacant. One suggested that I should use this column to explain why I maintained that Lennox Linton, Representative Elect for the Marigot Constituency and the Leader of the Opposition in the last Parliament, was not incorrect in assuming that his office had not been made vacant when the House was dissolved last year.

My opinion was based on a plain reading of the Constitutional provision on which Linton relied. It turns out that the issue is much more complicated than first appears. The question that really needed to be asked was: Why has the President not appointed someone to the office of Leader of the Opposition?

Whether by design or not, the President created a crisis when he did not perform that Constitutional responsibility in a timely manner. Here is how it all played out.

According to the Constitution the Parliament of Dominica consists of the President and the House of Assembly, which consists of the elected Representatives from the constituencies and nine Senators. (§§ 29,30).

The President is in the middle of his second term which began when he was elected in 2018, and the election of Representatives took place on December 6, 2019. Section 55(2) of the Constitution states that "as soon as practicable after the holding of any general election of Representatives the President shall … proceed to the appointment of the Senators."

Five Senators must be appointed on the advice of the Prime Minister and four on the advice of the Leader of the Opposition, but it appears that the Senators must be appointed as a single block.

The Constitution also states that both the Prime Minister and the Leader of the Opposition must be appointed by the President from among the elected Representatives. This arrangement means that the President must appoint both the Prime Minister and the Leader of the Opposition before he can appoint the Senators "as soon as practicable."

The Constitution leaves it to the President alone to decide how he will determine who satisfies the requirements to be appointed as Prime Minister and Leader of the Opposition, but it does not require that either must be the leader of a political party. Again, there is nothing in the Constitution that prevents the President from appointing individuals to both offices at the same time, and Sections 59 and 66 seem to suggest that he should.

Everyone knows that the elections of 2019 were won by a margin of 18-3. At the moment that the President decided that he had sufficient information to appoint his Prime Minister from among the 18 Representatives that would form his Government, he already had sufficient evidence to decide who among the three in the minority would be his Leader of the Opposition.

The President's delay in appointing any of the three minority Representatives as Leader of the Opposition created two constitutional issues. The first issue arose when the first sitting of the House was called for February 10, 2020. The Senators constitute the second house of our bicameral Parliament and Parliament cannot meet until all Senators are appointed. It is doubtful that Section 47 which states that "the House may act notwithstanding any vacancy in its membership (including any vacancy not filled when the House first meets after any general election of Representatives or Senators) was created to allow for this scenario. Since the Constitution does not require Representatives to advise the President on the appointment of the Leader of the Opposition, the Representative Elect for the Marigot Constituency who was the Leader of the Opposition in the last Parliament, relied on Section 66(4) in an attempt to exercise his right under section 34(2) (b) to advise the President on the appointment of four Senators. This was possibly done to avoid vacancies that would deprive the future Senators of the right to a vote in the election of the new Speaker. (A similar provision regarding Ministers exists in Section 59(8).)

It is indisputable that the Representative Elect had every right to seek to protect all the relevant Constitutional rights, but the letter he wrote to the President from the office of the Leader of the Opposition had no power in law. Whether the office was vacant is irrelevant, but the letter should have served as a reminder to the President to perform his duty.

The second issue created by the President's delay is more serious because it involves a violation of section 65 of the Constitution which explicitly states that "a Minister or Parliamentary Secretary shall not enter upon the duties of his office unless he has taken and subscribed the oath of allegiance, the oath of office and the oath of secrecy. The Constitution says and not or. All three oaths must be taken. The Constitution is also clear that the Oath of Allegiance must be taken before the Speaker in the House (§44).

The House will have had its first sitting and the Oath of Allegiance will have been taken by the time this is published, but it means that all the current Ministers of Government are serving in contravention of the Constitution. And all of this could have been avoided.

Nothing in the constitution prevents the President from calling the House into session for the sole purpose of electing a new Speaker and administering the Oaths of Allegiance. The current practice of leaving it up to the Prime Minister to call the first meeting of the House encourages further disrespect of the Constitution.

By Dr. Darius Lecointe