By Kieron Murdoch | Opinion Contributor

With all the turmoil impacting the United Progressive Party (UPP) since the resignation of All Saints West (ASW) Member of Parliament (MP) Anthony Smith, we could all be forgiven for forgetting that a rather consequential case pertaining to the MP’s resignation and his decision to sit as an independent is making its way through the court.

We were reminded of it when it was raised at last evening’s rather sparsely attended UPP rally in ASW. It is an outcome we should all eagerly await, as it will provide some clarity on the matter of whether MP Smith ought to be considered “independent” in the context of the Constitution, and whether he has at all run afoul of the provision requiring ex-party MPs to remain independent members of the House of Representatives.

Why is this case so consequential? Because if we assume that the Constitution intended to prevent crossing the floor, as many of us did, then MP Smith has either run afoul of the supreme law or effectively demonstrated that there is a loophole in the Constitution, where an ex-party MP can sit in the House, unaligned to any party officially, but may nonetheless offer allegiance to another party in practice – in this case, the ruling Antigua and Barbuda Labour Party.

This is only if we assume that the Constitution intended to prevent the practice we call crossing the floor or switching party allegiance. Section 41, subsection 1(e) states that “every member of the House shall vacate his seat in the House if having been elected to the House by virtue of being a member of a political party, he resigns his party whip and withdraws his allegiance from that party, provided that he shall not be required to vacate his seat so long as he remains an independent member of the House.”

Most saw this provision as being a prohibition of party MPs elected with one party joining another party. Various countries prohibit this as it can cause political instability and upend the result of an election or subvert the democratic will of the electorate. We do think that it makes sense to try and prohibit such moves, especially in a small democracy where the movement of one MP can change a government. In larger Parliaments where there are hundreds of MPs, and parties win by dozens or hundreds of votes, it may not be so crucial.

Some would argue that Mr. Smith has clearly aligned himself with the ruling party. Despite not declaring any party allegiance in public or in the House of Representatives, and despite not formally joining any other party – as far as we know – he accepted a post in the Cabinet of Labour Prime Minister Gaston Browne mere hours after his resignation from the opposition bench, and the same Prime Minister has made it publicly known that the party has reserved its ASW candidacy for MP Smith.

So what does the term independent mean? And what did the framers of the Constitution intend when they required in Section 41 that any ex-party MP remain an independent member in order not to vacate their seat? Independent in the sense of electoral politics and in the context of the House of Representatives simply means that you have no party and no formal party allegiance. We think that is a fair enough definition.

It seems reasonable to argue that an independent MP (such as MP Asot Michael, for example) is free to vote as they like, whether they support the ruling party most of the time or all of the time, or whether they support the opposition parties some of the time or all of the time. It does not matter. There are no fetters on how an independent MP votes.

If an independent MP happens to support every single Bill which the government brings, so be it. If they happen to support every position taken by the opposition, so be it. Being an “independent” does not suggest that they are independent in their views or that they lack biases. It merely indicates that they hold no formal party allegiance.

As an independent MP, it stands to reason for us that Mr. Smith is free to vote in alignment with whichever political block in the House as often as he wishes without running afoul of any requirement to remain an “independent member of the House”.

It seems reasonable as well that an independent MP can join a Cabinet. We would think though, that when this happens, the Cabinet technically becomes a coalition government since it is no longer exclusively composed of MPs from a single party. If that is a fair stance, then there is an argument to be made about whether leaving the opposition bench to join the government in a coalition should constitute a change of political allegiance.

Despite his declaration of being an independent member, the challenge with Mr. Smith arises because the circumstances of his resignation and induction into the Cabinet would seem to suggest that he has in fact, extended his political allegiance to another party in the House, if not formally (by declaring it) then in practice.

The two factors of note are the ones mentioned earlier. Firstly, the Labour Leader has reserved a seat for MP Smith to run on a Labour ticket and has publicly acknowledged this. Secondly, Mr. Smith’s ascension to the Cabinet was so rapid following his resignation, that it clearly suggests that there was some level of prior discussion between himself and the Labour leadership and perhaps an exchange of guarantees before he left the opposition bench to be an independent (and to join the Cabinet).

So, what did the framers intend when they required that ex-party MPs remain independent members. Was the intention to prevent a person from crossing the floor as we understand it? And if they did intend to prevent this, did they foresee a scenario such as this, where a person might sit as an independent in exchange for voting with and being a member of the government?

If they did intend to prevent crossing the floor as we know it (though Mr. Smith insists he has not) then perhaps it may have been better to have disallowed party MPs from retaining their seats altogether. That is to say, perhaps the framers should have stipulated that if a party MP leaves their party or loses their party whip, they vacate the seat.

That would eliminate the opportunity for anyone to claim to be unaligned and not under a party whip, when in reality, they demonstrate political allegiance. The challenge now is that if Smith’s move stands, it means that others will consider it permissible in the future, to leave one side and align with the other in exchange for political rewards, while remaining officially independent of a party.

How will the court look at this matter? The lawyers representing the opposition constituents who have taken Smith to court would have to make a strong case for interpreting the the document and the intention of its provisions in order to convince a court to view Mr. Smith’s actions as having gone outside of the allowable parameters.

Smith’s lawyers will argue that he has remained strictly within the letter of the law, and that an independent MP is free to join the Cabinet without this act impairing their status as an independent MP. If the issue is raised, they will argue that any suggestion by the Labour Leader that the party expects Smith to run on a Labour ticket is just that – an expectation – and that Smith has given no such commitment and extended no such allegiance.

It is also likely that whatever the outcome, it will, if possible, be appealed. That means that the final determination of this matter could take a long time indeed. In the meantime, Mr. Smith has smoothly exited the news cycle and has settled into his Cabinet post whilst the political avalanche that his resignation set off continues to bury the main opposition party and its beleaguered leadership.

About the writer:

Kieron Murdoch worked as a journalist and later as a radio presenter in Antigua and Barbuda for eight years, covering politics and governance especially. He is an opinion contributor at antigua.news. If you have an opinion on the issues raised in this editorial and you would like to submit a response by email to be considered for publication, please email staff@antigua.news.