PORT-OF-SPAIN - A leading Senior Counsel of Trinidad and Tobago and former Independent Senator, Martin Daly, has sent a challenging letter to Prime Minister Patrick Manning on what he considers the sad state of political affairs in the country and "the way forward".

Known for his sharp criticisms also against former Prime Minister Basdeo Panday, to whom he has copied his letter of Sunday, January 13, to Manning, Daly frequently made interventions at critical political developments long before last month's general election that resulted in an 18-18 tie in seats between the country's two dominant parties.

In his letter, made available to the media, and which came within two days of the disclosure of CARICOM's decision to mount a "peace" mission to Port-of-Spain, Daly told the Prime Minister of his reasons for writing him now.

President ANR Robinson has acknowledged receiving a letter from CARICOM for the mission to meet him as the constitutional head of state but gave no indication of his position on the Community's initiative.

Following is the full text of the letter, which was forwarded to the

Guyana Chronicle:
"Dear Mr. Manning
I am writing to you for the following reasons:

1. It appears to me that you are paying insufficient regard to the unusual circumstances in which your Government has come into being.

2. Above all I am also gravely concerned that you are attempting to rule the country without a functioning Parliament. To treat the lack of a functioning Parliament as a matter of secondary concern is, simply put, undemocratic. It is also detrimental to the long-term social, political and economic stability of the country.

The matters that I wish you to consider are as follows:

Legal effect of the tied election
I am absolutely satisfied that, in the absence of a person commanding a discernible majority in the House of Representatives after a general election, there is no authority whatsoever for the President to make a choice between two persons who each command the support of an equal number of members of the House of Representatives.

His Excellency, the President, was therefore wise to invite yourself and Mr. Panday to meet and work out a 'modus operandi' for the governance of the country. Regrettably a half baked agreement was reached at the Crowne Plaza (hotel in Port-of-Spain) and submitted to His Excellency.

However, the Crowne Plaza agreement gave an unqualified extra-constitutional licence to the President to choose a Prime Minister. This licence was supported by public statements made by both political leaders that they would accept the Presidentıs decision. It is difficult to see therefore how a complaint can now be made against the choice of a Prime Minister by the President.

The want of authority in the President must have been known to those who negotiated the agreement and they chose to invite him to make a choice nevertheless. It is particularly significant that no guidelines were placed for the Presidentıs decision. In particular it was not either stated or suggested in the Crowne Plaza agreement that incumbency should rate more highly than other matters in the decision making process.

I believe therefore that the country is now stuck with the Presidentıs decision which was made on the basis of an incomplete and deficient agreement. It is my opinion that those who approbated the agreement that the President should choose the Prime Minister cannot reprobate it as far as the Presidentıs decision to appoint is concerned. A way forward from there must be found.

The invitation to the President to make a choice, even if that invitation was naive and ill-considered, was acted upon by the President before the agreement was reprobated. This is the reason why I say that the country must abide by the President's action and that a way forward must be found in those areas where the Crowne Plaza agreement was woefully deficient.

The way forward
As I have already stated publicly the Crowne Plaza agreement should have contained limited interim arrangements for the exercise of executive authority while critical arrangements were made and implemented for a revised voters' list that met with the general satisfaction of the political parties.

In particular, those interim arrangements should have been subject to a fixed duration and to an agreed date for the next general election to take place after the revision of the voters' list. I strongly believe that such arrangements should still be negotiated between yourself and Mr. Panday along with arrangements for Parliament to function during this limited period.

You may say that you have the Government and that you anticipate that the fruit of further negotiations may be reprobated again. That would be a narrow position to take since the country is unsettled and its long term stability, progress and prosperity is threatened. I urge you therefore to invite Mr. Panday to conduct further negotiations to cure the deficiencies of the Crowne Plaza agreement for the good of the country.

Importance of a functioning Parliament

It must at all times be borne in mind that the election of members of the House of Representatives is the source of the majority that entitles the person commanding the majority of elected representatives to be appointed Prime Minister. Any Government that does not command the majority of elected members is not a normal one.

While minority Governments or Governments which come into being in extraordinary circumstances may be possible, such Governments lack the ultimate legitimacy of being the choice of the majority of the people exercising their franchise in accordance with the rules of the game contained in the Constitution and other laws. That is not to say that we do not need to consider again Constitutional reform, but until the rules of the game have been changed the existing rules must be respected.

Your Government lacks the ultimate legitimacy to which I have referred.

I wish to make it plain that I speak of political legitimacy and not sterile legality. Accordingly it is now incumbent upon you in priority to anything else to seek to get the Parliament going, preferably by negotiation; but, in default of successful negotiations the Parliament must nevertheless be summoned.

If it fails to get going then you must advise His Excellency to dissolve the Parliament and set a date for new elections. Our elections are Parliamentary not Presidential elections. The tied result must be fully respected.

I ask meanwhile where are we going? Will there be executive action taken without reference to the law-making powers vested in the Parliament by the Constitution, even where legislative sanction for such action is necessary?

Even states of emergency ultimately require the validation of Parliament.

Dissolution of Parliament
I recognise the technical arguments that there may be no Parliament to be dissolved if the Parliament does not get going. Here again approaching the problem from the narrow perspective of lawyers will not be helpful.

Political legitimacy requires that, in the same way you accepted an appointment on the basis of an agreement outside of the Constitution, you must in all fairness agree to the election of a new Parliament without regard to legal niceties if the current Parliament does not get going.

The President respectfully would be obliged to accept your advice. I cannot over-emphasise my view that the law is only a useful instrument if the consequences of its operation are acceptable to a broad majority of the citizens. Hence my emphasis on political legitimacy.

Manoeuvres by your Government
As I have indicated at the beginning of this letter I am gravely concerned that you are paying insufficient attention to political legitimacy. This is not a time to load up the country with an unprecedented number of Ministers; nor is it the time to pack the Senate with Ministers. The privilege of making sixteen Government Senatorial appointments derives entirely from an outright victory in a general election. You do not have such a victory.

You should, therefore, make these appointments conservatively. What is worse is that special advisers are being appointed. This species of appointments raise the questions who is the real minister and whether a government born out of ill-considered arrangements made after a tied election has the political authority to proceed in this bold fashion.

Role of Mr. Panday
For the avoidance of any misunderstanding may I make it plain respectfully that Mr. Panday has an equally important and historic duty to co-operate with you in making interim arrangements which will secure the stability of the country. As I have indicated above, perhaps naively, Mr. Panday left the choice of Prime Minister to the President but he is stuck with it.

He should not moan about it or look for a scapegoat for it. It was his decision for which he is accountable to his party.

However, he would be failing in his duty to his party if he did not insist that your government toe a very narrow line and also accept that it is not a true Government because it is not the choice of a majority of the electorate made in accordance with the rules of the game contained in the Constitution.

Equal Responsibility
Both yourself and Mr. Panday have an equal responsibility to recognise that the country is bigger than both of you and to advise your supporters accordingly. Had Mr. Panday been chosen by the President as a result of the Crowne Plaza agreement and thereafter proceeded in a fashion similar to you I would have written him in the same vein as I am writing to you. Indeed as a courtesy I am copying him with this letter. The country is dangerously divided and must be healed. The country is not a toy to be fought over as children sometimes fight over a single toy.

Many times the only result of such a fight is to break the toy.

I close with the repeated hope that you and Mr. Panday will handle with care our sensitive plural society and our Parliament."