by Dr Linton A Lewis
During my years as a professional cricketer I avoided the bouncing ball, because I was always mindful of the physical pain, the agony and the injuries that I sustained. It is therefore uncanny that I am now suggesting to readers to follow the bouncing ball, which also may cause some emotional pain and distress on the one hand, but hopefully bring some clarity of thought and peace of mind on the other.
On January 31, 2018 the Speaker of the House of Assembly (House) caused the Oppositionâs motion of no confidence to be amended extensively, which effectively changed the motion from one of no confidence in the ULP administration to one of confidence in that administration. Was that decision unconstitutional? Let us follow the bouncing ball. On February 5, the Leader of the Opposition wrote a letter to the Speaker declaring that the decision was unconstitutional and therefore a nullity. I do sympathize with the Leader for arriving at that conclusion in the absence of any prior clear legal guidance on the implications of bringing a motion of no confidence to the House. There may well be some political benefit to be derived from the allegation of unconstitutionality, but is that allegation supported by sound legal reasoning? To categorize a conduct as unconstitutional, we basically mean that the conduct contravened, was inconsistent with, violated, not in conformity to or simply breached a provision of the Constitution. Therefore, any other law that is inconsistent with the Constitution is void to the extent of the inconsistency and the requirements of the Constitution shall prevail (Section 101). The Oppositionâs motion was brought pursuant to Section 47(2) (a) of the Constitution. Was the ruling of the Speaker unconstitutional?
Characteristics ofÂ Section 47(2) (a)
A close reading of the section reveals five characteristics or features. Firstly, it is instructive, in that it conveys to the Speaker how a notice of a motion of no confidence should be brought to his attention and what the Speaker should do on receipt of the said notice. For example, the notice should be in writing and signed by a minimum of three Representatives. Thereafter, the Speaker should cause the motion to be considered. Secondly it is directive, in that it requires the House to consider, debate or dispose of the motion. Thirdly, it is procedural in that it says the steps that the Speaker should take on receipt of the motion. These include bringing the motion to the House within either five or fourteen days of receipt of the motion and empowering the Clerk of the House to convene a meeting to debate and dispose of the motion within 21 days if the House failed to dispose of the motion. Fourthly, it is conditional in that it requires the motion to be brought before the House within five days if the House was sitting at the time when the notice was delivered to the Speaker. Where the House was not sitting and did not intend to sit within five days of receipt of the motion, the House is required to meet within 14 days of the receipt of the said notice. Furthermore, the section authorises the Clerk to convene a meeting of the House to debate and dispose of the motion if it was not disposed of within 21 days of receipt of the notice. Fifthly, it is prescriptive. Section 47(2)(b) empowers the House to do one of two things, namely (i) make rules of procedure to grant permission to any member of the House to give notice of a motion of no confidence or (ii) empowers the House to make rules of procedure which permit the debating or disposal of a motion of no confidence at any sitting of the House. It is noteworthy that apart from the question of how the motion should be brought to the House, the only other question that concerns Section 47 is what should be done with the motion and not how the motion should be considered, debated or disposed. Except as mentioned in the foregoing, Section 47 of the Constitution is silent on how the motion should be considered, debated and disposed. Because Section 47 has made no provisions as to how the motion of no confidence should be considered in the House, attention must be drawn to the Rules of the House.
Application of the Rules of the House
The Rules of the House do not expressly provide for bringing a motion of no confidence. Therefore, the only avenue for bringing a motion of no confidence is by way of Section 47(2)(a). This raises the question, how was the House to deliberate over or consider a motion of no confidence that it has no power to initiate? The House receives the authority from Section 45(1) of the Constitution to make Rules to regulate its procedure. However, in doing so, it must be careful not to make Rules that are inconsistent with the Constitution (Sabaroche v Speaker of the House of Assembly (1999) 60 WIR 235 at 247). For example, where there is a procedure in the Constitution, the House must not make rules that contravene or that are inconsistent with or not in conformity to the procedure outlined in the Constitution. The House is not required to make any Rules that (a) shorten or lengthen the time lines that were given under Section 47(2)(a) as to when the House should sit to consider, debate or dispose of a motion of no confidence (b) contradict the requirements in Section 41 of the Constitution with respect to voting in the House (c) alter any of the procedures outlined in Section 38 of the Constitution with respect to the procedure for changing the Constitution and the Supreme Court Order or (d) contravene the procedure outlined in Section 44 of the Constitution with respect to raising taxes and other money bills (Methodist Church v Symonette (2000) 59 WIR 1 at p. 20) â just to name a few. This raises the further question, did the House breach any of the procedures that are outlined in Section 47(2)(a)?
The notice of the motion was brought to the House whilst it was sitting. This required the Speaker to cause the motion to be considered within five days. The notice of the motion was given on January 29, 2018 and considered in the House on January 31, 2018. Therefore, the Speaker caused the motion to be considered well within the time prescribed by Section 47(2)(a). It is my understanding that there is no other procedure pursuant to Section 47(2)(a) that is not followed. Therefore, in what respect can the Speaker have acted unconstitutionally? Is the allegation that the Speaker acted unconstitutionally because he permitted the amendment to the Oppositionâs motion of no confidence? If that is so, is it a breach of the Rules of the House or of a provision in the Constitution? Let us at this point, examine whether by permitting the said amendment the Speaker did not follow the Rules of the House and thereafter we will return to the issue of unconstitutionality.
Application of Standing Orders
Rule 32 of the Standing Orders provides that; “Where any motion is under consideration in the House or in a Committee thereof an amendment may be proposed to the motion if it is relevant thereo.â We must note that Rule 32 said any motion. It did not specify which motion or how the motion was brought before the House. Any motion that is properly before the House, whether it originated from the Rules of the House or the Constitution is subject to the requirements of Rule 32. Therefore, it cannot be disputed that a motion of no confidence falls to be treated under Rule 32 which provides the circumstances under which the motion can be amended. The amendment that was proposed by the ULP administration was made without notice. It was not proposed before the day that the motion of no confidence was being considered and therefore the Opposition did not have prior knowledge of its contents. Rule 25 of the Standing Orders permits an amendment to be made without notice. Accordingly, the amendment complied with Rule 25. That is not in dispute. The argument raised is that the Constitution refers to a motion of no confidence and therefore that question cannot be amended. But is it that the words “no confidenceâ cannot be changed or the effect of the words that cannot be changed? A motion of no confidence is a specie of a censure motion (Winetrobe and Seaton, Confidence Motions Research Paper 7/02/1995 at p. 6). In the same way that a confidence motion is also a specie of a censure motion. Both motions have the effect of bringing down the government where Representatives in the House, by their votes, do not express confidence in the Government (See Section 48(5) of the Constitution). Section 47(2)(a) makes reference to motion of “no confidenceâ but it must not be interpreted literally that the words “no confidenceâ must be inserted in the motion before it can be considered a motion of no confidence. I respectfully submit that it is not the words used that is of significance. It is the effect of the words that matter.
Purpose and Effect of a Motion
Suppose a motion were to be brought under Section 47(2)(a) in the following terms – Be it resolved that the government does not have the majority of support in this House to continue governing this country. Will such a wording offend Section 47(2)(a)? Will the Speaker be correct in refusing to accept that formulation as being consistent with the requirements of Section 47(2)(a)? To state that the wording offends Section 47(2)(a) or is inconsistent with the said section would be to make a mockery of the purpose for which Section 47(2)(a) was crafted. Section 47(2)(a) provides an opportunity for Representatives of the House to express their dissatisfaction with the performance of a government and to demonstrate their lack of confidence in its existence. Where there is no confidence in a government, democracy dictates that to wait until the next general elections may be inappropriate, especially in circumstances where delay will be seen as dangerous. Our Constitution is crafted in such a way that our people have two bites at the electoral cherry. The first one being at the polls in the general elections when they meet to elect the persons in whom they have confidence to govern their affairs (Section 48(2)). In the second bite of the cherry the people are considered to be speaking through those who represent them in the House to convey that they no longer have confidence in the Government that they have elected by voting against it in the House (Section 47(2) (a)).
It is rather interesting to note that in both elections a majority vote is sufficient to establish no confidence (see Section 41 of the Constitution and Rule 45 of the House of Assembly Election Rules). Hence, the purpose of Section 47(2)(a) is to provide an opportunity to the people, through their Representatives to remove the Government from office. In essence, the people are saying that they no longer have confidence in the Government to be able to effectively look after their respective welfare interests. Section 47(2)(a) provides the mechanism for a confidence motion to be brought to the House. That is its sole purpose. The Constitution makes general provisions for general elections to be held every five years so that the people could be given an opportunity to express confidence in certain persons to represent them in the House. There is no need for the Constitution to provide for another confidence motion within the five year period. But the Constitution recognizes that something may happen which may encourage the Representatives to lose confidence in the Government and when that happens, it is difficult for the Government to function effectively and for the people to experience an acceptable or desirable standard of life. To avoid such hardships the Constitution provides an avenue for that lack of confidence to be established in the House pursuant to Section 47(2)(a). It is confidence that the Constitution anticipates that the people should have in the Government. Hence to focus on the words “no confidenceâ in the literal sense is absurd or can lead to an absurdity where those words are not used, but the motion has a similar effect. So, it is to the effect that our attention should be targeted and not necessarily the words that are used in the motion. Once the words clearly indicate that confidence is an issue, I am of the opinion that it will suffice. On the basis of the aforesaid, I conclude that the effect of the words or the message that the words in the motion is trying to convey, is fundamental. What are the implications for the motion once it has been established that confidence is its raison dâ Ãªtre?
A motion is a proposal for eliciting a decision from the House. What was the decision that the Opposition was seeking to elicit? It was seeking to establish that there was no confidence in the government. Section 47(2)(a) directs the House to consider the motion of no confidence. Rule 32 provides that whenever any motion is under consideration it can be amended. Any motion also includes a motion that is brought to the House pursuant to Section 47(2)(a). Section 45(1) of the Constitution empowers the House to make Rules that regulate its own procedure, except that those Rules of procedure must be subject to the requirements of the Constitution. Section 47(2)(a) issues a directive to the House to apply those Rules to consider the motion of no confidence. Therefore, Rule 32 obtains its authoritative force from the Constitution. If it is contended that Rule 32 is subject to the provisions of the constitution, then it must, have accorded with the provisions of Section 47(2) (a) because that section directed the House to consider the motion. When the motion was brought to the House to be considered, the House was doing precisely what Section 47(2) (a) directed it to do. As was stated in the foregoing, there is no evidence adduced that Rule 32 is in conflict with any procedure in the Constitution, hence Rule 32 accords with the Constitution and is therefore legitimate. For those reasons Rule 32 can be used to amend the motion of no confidence. Interestingly, there are those who agree that the recitals of the motion of no confidence can be amended but are not convinced that the question of no confidence that was put to the House can be amended. In the light of the foregoing I will now address that singular point.
Amendment of motion
The Oppositionâs motion of no confidence was amended by the government, to a motion of confidence. Rather than the motion asking the House to have no confidence in the government, it was amended so that a declaration can be made expressing confidence in the government. The Opposition contends that Rule 32 does not permit any amendment to be done to the motion because Section 47(2)(a) expressly refers to a motion of no confidence and therefore the House has no authority to amend what the Constitution provides. I find that argument very interesting, troubling and somewhat circuitous when it is the very Constitution via the said section 47(2)(a) that directs the House to consider the motion and the House was doing precisely what the Constitution directed it to do. It was the very Constitution (Section 45(1) that authorized the House to make Rules to regulate its own procedure. The House has done so by including Rule 32 in its Standing Orders. Section 47(2)(a) is saying to the House, I have authorised a motion of no confidence. I am directing you to have a look at it and to determine it in accordance with your Rules of procedure. The House is saying, I have received the motion of no confidence and I am going to check it out to see if it is in order by applying my Rules of procedure to make sure that what is done does not offend the Standing Orders and to determine its fate.
From the time that the Constitution directs the House to consider the motion of no confidence, it becomes Pontius Pilate. It has washed its hands from the motion. How it is dealt with thereafter is a matter for the House and not the Constitution. It is therefore my understanding that once the constitutional requirements of the motion are satisfied, the Constitution no longer plays any role in its determination. As I said in the foregoing, the Constitution says what is to be done and the Standing Orders of the House say how it should be done – it is as simple as that. There is no reason for the Speaker to conduct any inquiry into whether the words no confidence should be used. Once the Speaker is satisfied that the House is asked to determine whether or not there is confidence in the government, there is no need for him to concern himself with the frivolity of mere words. His concerns should be confined to the purpose and effect of the motion and the application of the Rules of the House when considering the motion.
Therefore, if the Speakerâs trajectory is one of purpose and effect then anything that relates to purpose and effect will be relevant to the motion. The purpose of the Oppositionâs motion is to demonstrate that there is no confidence in the Government. The ultimate effect of a finding of no confidence is a dissolution of the House (Section 48(5)(b) of the Constitution). What is the purpose and effect of the governmentâs amendment to the Oppositionâs motion? The Government is seeking to have the House declare confidence in its administration. If the Government does not succeed in getting the majority of the House to vote in favour, then the ultimate effect will be the dissolution of the House (See Section 48(5)(a)and (b) of the Constitution). A vote against a motion of confidence in a government is effectively a vote of no confidence in that government. The purpose of the original and amended motion is the same. They both seek to establish whether or not there is confidence in the Government. If the House concludes that there is no confidence in the Government, they also have the identical effect. The amendment is therefore relevant to the original motion because it determines whether or not the House has confidence in the Government. It is also germane to the original motion because it is appropriate to the issue of confidence. For those reasons I am of the conviction that the motion brought by the Opposition can be amended in the manner that it was amended by the ULP administration. I will now turn to whether or not by permitting the amendment the Speakerâs conduct was unconstitutional.
Constitutionality of the Speakerâs decision
When we refer to a conduct as unconstitutional we are in effect saying that the conduct was inconsistent with, not in conformity to, violated, contravened or breached the provisions of the Constitution. Section 47(2) (a) instructed the Speaker to bring the motion of no confidence to the House. Section 47(2) (a) directed the House to consider the motion of confidence. What is meant by consider in this context? The Concise Oxford English Dictionary (2006: at p. 306) provides that to consider is to “think carefully about- take into account when making a judgment.â The Constitution did not provide a definition of consider. Rule 32 also refers to the word consider but did not provide a definition of consider. Hence, consider must refer to the practice applied by the House when it is thinking carefully about addressing proposals for amendment of motions. In essence, consideration does not mean that amendments cannot be made. What is the reason why other motions can be amended and a Section 47(2) (a) motion of no confidence cannot be amended? In my opinion there is no reason. Neither the Constitution nor the Standing Orders expressly prohibit amendments being made to a motion of no confidence.
Is the argument going to be that because the motion of no confidence originates from the Constitution that it cannot be amended? With all respect that cannot possibly be correct. As was stated in the foregoing, Section 47(2) (a) only provides an avenue for a motion of no confidence to be brought and for the reasons that I gave in the foregoing. There is no other way that a motion of confidence could be brought to the House. Section 47(2) (b) expressly authorized the House to make rules to permit any member to give notice of a motion of no confidence but the House has not made such rules. Therefore, the second bite of the electoral cherry can only come pursuant to Section 47(2) (a). If Representatives of the House donât believe that the Government has the support of the majority of the House, then they can seek to bring about a dissolution of the House by way of a motion of no confidence.
The avenue for bringing that motion is provided in Section 47(2) (a). Hence, all that the section does is to provide the opportunity for a no confidence motion to be brought to the House. What it does not do is to dictate how that motion should be considered by the House. The House, by virtue of Rule 32, has the power to amend the motion. For those who argue that the Constitution provides for a motion of no confidence and therefore that question cannot be changed by the House, I implore them to think again, because the very section 47(2) (a) that initiates the bringing of the motion is the very section that authorizes the House to consider it. The Constitution did not impose any condition on the House as to how the motion should be considered. Guidance in that regard comes from Rule 32 of the Standing Orders. In considering a motion the House may either amend it, debate it or dispose of it. All of those options were anticipated by the very section as well.
The proviso in that Section states that if the House does not, within 21 days of the receipt of the notice, meet and dispose of the motion the Clerk of the House shall summon a special meeting of the House at such time and place as he may specify for the purpose of debating and disposing of the motion. Hence, it is only after the expiration of 21 days that the section mandates that the motion should be debated and disposed. If the drafters of the Constitution intended that the motion should be debated once it is brought to the House, why didnât they make such provision in section 47(2)(a)(i) and (ii). Instead the drafters only made reference to consider. It is clear beyond a shadow of a doubt that when the drafters contemplated Section 47(2) (a) they anticipated that it could have been amended. It is always important to bear in mind that our Parliament is modelled off the Westminster Parliamentary System in Great Britain. In that System, motions of no confidence and motions of confidence are referred to as censure motions or just confidence motions (Richard Kelly, Confidence Motions 13/05/2013 at p. 3). It has been the practice in Great Britain to amend motions of no confidence and motions of confidence (at Richard Kelly at pp. 9-20). As a matter of fact, on November 1, 1956, February 2, 1965 and January 31, 1985 (Winetrobe and Seaton Research Paper 95/19, February 7, 1995 at pp. 21-27) when motions of no confidence were brought to the House of Commons, the government countered them with motions of confidence and won the votes to have the motions of no confidence amended. That being the case, our Constitution (1979), which was drafted long after some of those motions were brought to the House of Commons, would have adopted that approach as it did with many other laws and procedures. Rule 82 of the Standing Orders advises the House to apply the practice in the House of Commons where there are cases of doubt. For those who are doubtful as to whether the motion of no confidence could have been amended in the way that it was, the practice of the House of Commons is applicable. In that practice, motions of no confidence can be amended. Support for that finding can be readily identified in Erskine May (2004) at pp. 397 -398. In conclusion let us now follow the bouncing ball.
The Speaker brought the motion of no confidence to the House within a particular period of time. He considered whether the motion was properly before the House. This would also involve deliberating over the application of Rule 32 of the Standing Orders, with respect to amendments. Section 47(2) (a) did not give the Speaker any further instructions. Once the Speaker was satisfied that the motion that came before him was a motion of no confidence, there is nothing further from the Constitution that he is required to interpret, except that he should cause the motion of no confidence to be considered by the House. The motion was considered and amended. In the light of the foregoing, I am strongly of the opinion that the decision by the Speaker to permit the amendment of the motion of no confidence, did not offend the Constitution and therefore was not unconstitutional.