Formation of executive does not depend on Trimble nod
The present decommissioning impasse is being prolonged, I believe, by a number of significant misapprehensions about what precisely the Belfast Agreement says. One such is the widespread belief that the appointment of the shadow executive is in the gift of David Trimble, a misunderstanding Mr Trimble appears happy to propagate.
In fact, what the agreement lays down is that the executive is automatically appointed in the wake of the election of the First Minister and Deputy First Minister. The relevant section of the agreement - Clause 16, Strand One - reads as follows: "Following the election of the First Minister and Deputy First Minister, the posts of Ministers will be allocated to the parties on the basis of the d'Hondt system by reference to the number of seats each party has in the Assembly".
Note that it does not say that ministers will be appointed by the First Minister, or even that they will be appointed by the First Minister and Deputy First Minister together. What it provides for is that posts be allocated on the basis of criteria relating to the numerical strengths of the various parties.
Mr Trimble, his supporters, and indeed a significant amount of media coverage of the issue, would have us believe that what is happening at present is that the First Minister is unable or unwilling to proceed with appointing "his" ministers until he is satisfied that all parties are abiding by the conditions of the agreement. It would be more accurate to say that Mr Trimble is misrepresenting his authority as First Minister so as to exclude his political adversaries from the executive.
Mr Trimble has no discretion whatever in appointing the executive. The executive appoints itself, or, more correctly, is formed according to a system which sets out in precise detail how the ministries are to be allocated. The logic of the d'Hondt system ordains which ministries will go to which parties, and the parties themselves will decide who to put forward as their nominees.
David Trimble, therefore, does not have the right to say who his fellow ministers will be or when they will be appointed. His only conceivable function might be compared to that of a returning officer, in overseeing the process, but even this is not essential.
Since the shadow executive is to be formed on the basis of the arithmetic of the Assembly, it is much more plausible that any function with regard to the mechanics of the process resides with the Presiding Officer of the Assembly, Lord Alderdice, rather than with the leaders of the executive itself. Only after the ministries have been allocated does Mr Trimble's role, in convening and presiding over the executive, come into play.
Since the First Minister has no function in appointing the executive, we need to be clear that when Mr Trimble makes statements on this issue he is doing so not in his capacity as First Minister but as leader of the Ulster Unionist Party. It is quite clear also from the agreement that it was intended that the shadow executive would have been convened long before now.
Mr Trimble is therefore in default of his duty as First Minister in failing to draw the Assembly's attention to its failure to allocate ministerial posts. It is possible that the confusion created by his misrepresentation of the position has caused unnecessary delay in establishing the executive.
He has, of course, been misleading also on the decommissioning issue. Let us be clear what the agreement says about decommissioning.
Clause 3 of the decommissioning section, which summarises the position, states: "All participants accordingly reaffirm their commitments to the total disarmament of all paramilitary organisations. They also confirm their intention to continue to work constructively and in good faith with the Independent Commission, and to use any influence they may have to achieve the decommissioning of all paramilitary arms within two years following endorsement in referendums North and South of the agreement and in the context of the overall settlement."
BY ANY objective reading of this section, it is quite clear that Sinn Fein is already doing everything required of it by the agreement. By endorsing the agreement, Sinn Fein has committed itself to everything contained in it, including the pursuit of non-violent means.
Martin McGuinness has been engaged in discussions with the decommissioning commission and in doing so has fully met all the practical requirements. There is nothing in the agreement to suggest weapons have to be handed in before the executive can be convened.
So, not alone does Mr Trimble not have the right to delay the allocation of ministerial posts in the executive, neither has he the right to impose conditions concerning who can or cannot be a member of the executive. The only conditions attaching to membership of the executive relate to the Pledge of Office, the relevant section of which requires ministers to commit themselves to "non-violence and exclusively peaceful and democratic means".
This implies no more than is already embraced by a willingness to sign up to the agreement in the first place. Moreover, the role of adjudicating on whether individual ministers have met the criteria does not reside with the First Minister. The Assembly decides whether ministers have met the conditions of office.
Ministers who lose the confidence of the Assembly may be removed from office "following a decision of the Assembly taken on a cross-community basis". ("Cross-community" means either a majority of both the nationalist and unionist designations or 60 per cent of all members present and voting, including at least 40 per cent of each of the nationalist and unionist designations present and voting.)
Mr Trimble's present stance is therefore untenable under the terms of the agreement he is required to uphold. Strictly speaking, the issue of decommissioning will not come up for appraisal until May 23rd, 2001, two years after the referendums. And then removal from office will arise only if it can be shown that a minister of the executive has failed, due to bad faith, to use his or her influence in seeking the decommissioning of all paramilitary arms.
This is a long way from the present situation whereby David Trimble gives the impression that he has the right to decide whether members of Sinn Fein can sit on the executive. Of course, if you read carefully what he says, it is obvious that Mr Trimble is aware of all this: he talks about there not being enough "confidence" for an executive to come into being "without evidence of people being committed to exclusively peaceful and democratic means".
But there is nothing in the agreement about confidence. It was not intended to be a letter of comfort to the Ulster Unionist Party.