The failure of the House of Representatives to arrive at a consensus to enact the Anti-Gang legislation because of differences of opinion between the Government and the Opposition over the length of time for the sunset clause in the bill has raised, once again, the issue of the three-fifths majority.
Earlier this year, the Government and the Opposition were able to enact the Fatca legislation with the three-fifths majority in the House of Representatives by a 39-0 margin. Not this time on the Anti-Gang Bill.
At independence, during the Queen’s Hall Conference in April 1962, the Eric Williams government accepted a recommendation from the then president of the Bar Association, Hugh Wooding, for the model of the Canadian Bill of Rights 1960 to be adopted for the human rights provisions in our independence constitution.
One of the features of the Canadian Bill of Rights 1960 was the permission it granted to Parliament to enact legislation inconsistent with the guarantee of fundamental human rights and freedoms. Parliament is required to state its intention to do so and earn a three-fifths majority as well. The check and balance against the infringement is that a judge may overturn it if he/she deems it not to be “reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual”.
Because the infringement of human rights is at stake, the three-fifths majority is required. The sticking point in the Anti-Gang Bill was the inability of the Government and the Opposition to agree on the length of time for the sunset clause, either four years (the Government) or two years (the Opposition).
This issue of having to ask the Opposition for its support on certain pieces of legislation during the life of this Parliament has arisen because the Government does not have a three-fifths majority (25 MPs) in its own right. Only in the 1992-1995 (21-13-2), 1995-2000 (17-17-2), January 2001-October 2001 (19-16-1), April 2002-August 2002 (18-18), and 2002-2007 (20-16) Parliaments as well as this one (23-18) has there not been a three-fifths majority among the ranks of the Government side.
That reality has driven up the need for national consensus at a time of greater national political division since the 1990s because of the emergence of a properly functioning two-party system that has seen the pendulum of power swinging back and forth between the PNM and the UNC.
The full effect of the Wooding intervention at the 1962 Queen’s Hall Conference had not been felt until the 1990s and beyond when governments started being elected with smaller majorities that made co-operation with the Opposition a reality. That reality was a function of the emergence of a dedicated second party of substance to challenge the PNM in the form of the UNC after 1989.
The reality for the rest of this Parliament is that the Government will have to live with the idea of seeking the support of the Opposition on all special-majority legislation. Without a general election or some by elections in toss-up constituencies that picture does not have a chance of being changed any time soon.
The argument between the Government and the Opposition about who did or did not support whatever at the committee stage or the final stage on any legislation will always go on each time there is a disagreement.
Our system of government is not based on seeking repeated majorities by parliamentary consensus like some other systems of government, but rather seeking majorities by single-party domination or multi-party coalition. Additionally, the PNM is opposed to the coalition philosophy, while the UNC has been prepared to embrace it in the past.
When the time comes for consensus, our system is ill-equipped to handle it because no government wants any opposition telling it what to do and no opposition wants to give away its demands on any legislation.