Letter to Prime Minister Dr Ralph Gonsalves from Opposition Leader Dr Godwin Friday

February 15th, 2018

Dr the Honourable Ralph Gonsalves

Prime Minister

St Vincent and the Grenadines

Dear Prime Minister Gonsalves:

RE: Motion of No Confidence under Section 47(2) of the Constitution of St Vincent and the Grenadines and the Standing Orders of the House of Assembly

I acknowledge receipt of your letter dated February 8, 2018, with the enclosed legal opinion of Dr Francis Alexis QC, dated 5th February 2018.

I note your observation that the conclusions of Dr Alexis on the issue of Section 47(2) of the Constitution are shared by Mr Parnel Campbell QC and by the Honourable Attorney-General of St Vincent and the Grenadines, Mr Jaundy Martin, who advised the Government accordingly.

In your exchanges with the Speaker of the House of Assembly, the Honourable Jomo Thomas, during the sitting of the House on Wednesday, January 31st, 2018, you made, among others, the following assertions: –

“Mr Speaker, with great respect, ………I have already said that the Opposition can bring a motion of no confidence only if the Government acquiesces or agrees. …….”

“Unless you have this initial step, which has to be overcome, you are going to have chaos in the Parliament………,”

Upon a perusal of Dr Alexis’ legal 0pinion, I am unable to discern where the learned jurist advises that the acquiescence of the Government must first be obtained, before a Notice of Motion of No Confidence in the Government can be brought by the Opposition. Evidently, that position is the product of your own personal misguided interpretation of the Constitution.

In summary, Dr Alexis opines that:-

11.0 SUMMARY

11.1 Section 47(2)(a) of the Constitution of St. Vincent is unique in providing for a no confidence motion in the detailed way it does; while section 47(2)(b) preserves the general approach to such motions.

11.2 In its uniqueness, section 47(2)(a) is a complete whole, entire unto itself; it expressly sets out its conditionalities or limitations; thus, excluding the implying of others into it.

11.3 Section 47(2)(a) has a two stage process. Paras 11.4 -11.5 below refer.

11.4 Stage 1 has the Speaker summoning the House; the process has twenty-one days to run; during which time the motion may be ‘considered’ by the House, or the House may ‘dispose of’ it; unqualifiedly.

11.5 If Stage 1 is not completed in the twenty-one days, the Clerk of the House summons the House; and he sets a time for the purpose of “debating and disposing of the motion.”

11.6 The process has those two stages on giving section 47(2)(a) a “purposive construction”.

11.7 Such purposive construction avoids the plain manifest absurdity of holding that any and every time notice of a no confidence motion is given to the Speaker, the motion must be debated and disposed of.

11.8 That Section 47(2)(a) does not entail such absurdity is bolstered by section 47(2)(b) preserving no confidence motions other than those under section 47(2)(a); there would be no need to preserve such other motions if those under section 47(2)(a) must always be debated and disposed of.

To ‘Consider’ and ‘Dispose’ of the Motion of No Confidence

The learned jurist, Dr Alexis states at paragraph 9.4 of his Opinion that:

“9.4 The Constitution makes no distinction between the formulation that the motion be ‘considered’ and the stipulation that the House ‘dispose of the motion.”

9.5 Once the motion is dealt with within twenty-one days of its notice, the Speaker would have acted with due dispatch, the Constitution is well pleased. Once that time-frame is adhered to, then, how the motion is considered or disposed of is a matter within what section 47(2)(b) refers to as ‘the power of the House’. (Emphasis mine)

Given that the Speaker had caused the Notice of Motion of No Confidence that I submitted to him on Monday January 29th to be considered by the House on Wednesday January 31st well within twenty-one days, in keeping with Dr Alexis’ opinion, the Speaker acted with due dispatch. The vexed issue, therefore, must be concerned with the manner in which the House could have ‘considered’ or ‘disposed’ of the Notice of Motion of no Confidence.

How is the Motion to be considered and disposed of under section 47(2)(a)?

According to Dr. Alexis, this is a matter within what section 47(2)(b) refers to as “…the power of the House.”. We must, therefore, examine that paragraph which provides as follows: –

“47(2)(b) The provisions of paragraph (a) of this subsection shall be without prejudice to the power of the House to provide by its rules of procedure that notice of a motion of no confidence in the Government may be given by any member of the House or the power of the House to debate and dispose of such a motion at any sitting of the House.”

As you are aware, the House has not provided any rules of procedure pursuant to paragraph 47(2)(b) for a notice of motion of no confidence in the Government to be given by a member or any rules of procedure to debate and dispose of such a motion at any sitting of the House. Accordingly, the House did not have the power to consider or disposed of the Motion of No Confidence pursuant to any rules of procedure made under section 47(2)(b).

No Rules of Procedure exists specifically for Motions of no confidence in the Government

Although there are no rules of procedure providing specifically that a Notice of Motion of No Confidence in the Government may be given by any member of the House or in respect of the power of the House to debate and dispose of such a motion at any sitting of the House, there are Standing Orders, made under section 45(1) of the Constitution, which provide that: –

45. (1) Subject to the provisions of this Constitution, the House may regulate its own procedure and may in particular make rules for the orderly conduct of its own proceedings. (My Emphasis)

However, there are no rules and procedures in the Standing Orders specifically providing for the power of the House to debate and dispose of a Motion of no Confidence in the Government which is moved by any member of the House and none to be found under any other provision of the Constitution or other laws of St. Vincent and the Grenadines. Simply put, none exists.

The Standing Orders of the House made pursuant to Section 45(1) of the Constitution

Nevertheless, the Standing Orders provide at Rule 28 that: –

“28. (1) Subject to the Constitution and to these Standing Orders, it shall be competent for any Member to propose by way of motion any matter for debate in the House.

(2) On a motion made and when necessary seconded the Speaker shall propose the question to the House and after debate, if any, shall then put question for the decision of the House.

(3) ……

(4) ……

How did the House proceed to consider and/or dispose of the Motion of no confidence?

The House purported to ‘consider’ and/or ‘dispose’ of the Motion of no Confidence in the Government pursuant to the Standing Orders. More particularly, it did so by amending the Notice of Motion under Rules 25(a) and 32. These rules are expressly prescribed by section 45(1) of the Constitution to be “…. subject to the provisions of the Constitution….”, including the provisions of section 47(2)(a) of which Dr Alexis asserts in his written Opinion that: –

10.6 Section 47(2)(a) already expressly spells out limitations on itself: These are the time-frames, the change from the Speaker to the Clerk, and the shift from the motion being considered or disposed of to it being debated and disposed of. When provisions already constitute a coherent whole with their own expressed limitations, there is no basis for further implying other limitations into them.

10.7 Where the Constitution puts in place a dispensation, whether granting a right or placing a disqualification, unless the Constitution is duly altered, that dispensation may not be removed, not even by a well-meaning agreement witnessed by the Prime Minister.

And Dr Alexis concludes that the Notice of Motion under section 47(2)(a) is discrete from other no confidence motions, when he state that: –

11.2 In its uniqueness, section 47(2)(a) is a complete whole, entire unto itself; it expressly sets out its conditionalities or limitations; thus excluding the implying of others into it.

The pivotal issue to be determined

In the circumstances, in ‘considering’ and/or ‘disposing’ of the Notice of Motion of no Confidence in the Government brought under section 47(2)(a) and which is discrete from other motions of no confidence, does the House have power to use the Standing Orders made under section 45(1) of the Constitution to amend it so as to transform the character of the Motion from one to resolve the question: that the House has NO Confidence in the Government (yes or no) to one which proposes the question: that the House has FULL Confidence in the Government (yes or no)?

Does the House have power to flip the motion of No Confidence into a Motion of Full Confidence?

For purposes of section 47(2)(a) of the Constitution, to ‘consider’ and ‘dispose’ of a Motion the question in respect of which requires a vote of Full Confidence in the Government, is not the same as to consider and dispose of a motion in which the question being proposed requires a vote of No Confidence in the Government.

I am advised that based on Dr Alexis’ reasoning in his written Opinion that section 47(2)(a) is discrete, a complete whole unto itself, and already expressly spells out limitations on itself and that where the Constitution puts in place a dispensation, whether granting a right or placing a disqualification, that dispensation may not be removed unless the Constitution is duly altered, not even by a well-meaning agreement witnessed by you, as Prime Minister. Hence, if his formulation is adopted, the House does not have the power to make that change.

The Rules contained in the Standing Orders made under section 45(1) of the Constitution cannot be used to defeat the right given in section 47(2) to any three Representatives to have their Motion of No Confidence in the Government ‘considered’ and ‘disposed’ of by the House.

Given that the Motion of No Confidence in the Government ought not to be thwarted by using the Standing Orders concerning amendments to flip it into a proposition which is the opposite of a resolution of NO CONFIDENCE, the next question must then be: what are the parameters within which it should properly be ‘considered’ and ‘disposed’ of by the House?

What are the procedures under the Standing Orders?

This requires that the provisions of the Standing Orders by which the House ordinarily regulates its own procedure must be examined to see what their powers are and how they may ‘consider’ and/or ‘dispose’ of the Motion of no Confidence in the Government without abrogating any provision of the Constitution, including section 47(2)(a).

Rule 15 – Order of Business

The Notice of Motion of no Confidence in the Government was included on the Order Paper for the sitting of January 31, 2018 pursuant to Rule 15(1)(n), which provides that unless the House otherwise resolves, the business of each sitting shall be transacted in the prescribed order. “Public Business” is the last item listed there.

Rule 22 – Public Business

Furthermore, Rule 22(1) states that Public Business shall consist of motions other than those described by paragraph (k) of Rule 15, which are “Requests for leave to move the adjournment of the House on matters of urgent public importance.” And by Rule 22(2), Government Business has precedence at every meeting of the House except the first day at the third meeting of any New Session, when Private Members’ business has precedence.

Also, by Rule 22(5) no Private Members’ business may be considered after 5 o’clock at any ordinary sitting of the House and any business not reached shall stand over to the next sitting and Private Members’ business entered upon, but not disposed of at that time, shall be deferred until such time as the Speaker may determine.

Although the Speaker and your Government members have persistently contrived to frustrate any Private Members business brought to the House by the Opposition from being debated, on this occasion, the Motion of No Confidence in the Government was particularly set down on the Order Paper to be dealt with by the House. This was done no doubt in an effort by your Government to have it come on within the twenty-one days’ time-frame in section 47(2)(a) of the Constitution and to avoid it clashing with the Budget presentation and debate, which were scheduled to commence on Monday February 5th, and might be expected to go on for the usual five days and conclude on or about February 9, 2018.

Motions and Amendments to Motions are provided for under Rules 23 to 32

Rule 23 requires that any motion which in the opinion of the Speaker, would dispose of or charge public funds or impose, alter or repeal any rate of tax or duty, must first have the recommendation of Cabinet before it can proceed.

Rule 24 provides that notice must be given of any motion and must be signed by the member, addressed to the Clerk of the House and left at her office, if the Standing Orders require that notice is required for such a motion. Furthermore, if the Speaker considers that the notice of motion received by the Clerk infringes any of the Standing Orders or is in any way out of order, he may direct that the member be informed that it is out of order or that the notice be entered in the Order Book, with such alterations as he may direct.

Then Rule 25 – Motions exempted from Notice

This Rule provides for motions which may be made without prior notice being given. The first of these listed is a motion for amendment of any motion. This is the Rule under which the Government Members purported to amend the Notice of Motion of No Confidence in the Government.

Rules 26 and 27 – Dispensing with Notice & Privilege Motions

These Rules prescribe that when notice of motion is required, it may not be dispensed with except with the consent of the Speaker and a majority of Members present at the time and that motions concerning the privileges of the House shall take precedence over all other public business.

Rule 28 – Moving of Motion is set out above, at page 3.

Rule 29 that except for Government business, the question on a motion or an amendment to a motion shall not be proposed by the Speaker unless same is seconded.

Rule 30 & 31 – Motions not moved or seconded & Withdrawal of Motions

Rule 30 provides that a motion or amendment shall be removed from the Order Paper if the member does not move it when he is called on, unless another member duly authorized by him moves it in his place, save for Government business which may be moved by any Minister. And if a motion or amendment is not seconded no record of proceedings on it is to be kept in the Minutes of proceedings. And Rule 31 provides for the withdrawal of motions at the request of the mover after it has been moved, but before the question is put, by leave of the House.

Rule 32 – Amendments to Motions

Rule 32(1) & (2) provide 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 thereto and that an Amendment may be proposed to any such amendment if it is relevant thereto. The remainder of this Rule sets out the procedure for making amendments to motions ordinarily.

Rule 32(3) provides that: –

(3) An amendment to a motion may be moved and seconded at any time after the question upon the motion has been proposed by the Speaker or Chairman and before it has been put by the Speaker or Chairman at the conclusion of the debate upon the motion. When every such amendment has been disposed of, the Speaker or Chairman shall either again propose the question upon the motion or shall propose the question upon the motion as amended, as the case may require and after further debate which may arise thereon, shall put the questions to the House or committee for its decision. (My emphasis)

Is there an obligation for the House to debate a section 47(2)(a) Motion of No Confidence?

If we accept Dr Alexis’ view that any and every Notice of Motion of No Confidence in the Government that is given to the Speaker need not be automatically debated and disposed of, it is critical to point out the limited way that this applies. The recitals may, in the opinion of the Speaker, infringe the Standing Orders and may be altered as he directs to conform with them. Also, they may be amended, provided that the question that remains to be resolved after the amendment is a Vote of No Confidence in the Government. Further, the motion may be withdrawn, or consideration and disposal may be deferred to anytime during the twenty-one days, after which Stage 2 will kick in and the Clerk of the House must summon a special meeting of the House at such time and place as she “…may specify for the purpose of debating and disposing of the motion”.

Whatever the cause for a Motion of No Confidence not to be debated or disposed of within the specified 21-day timeframe, this must be subject to the proviso that it should not be dealt with by the Speaker and/or the House in a manner that abrogates the provisions of section 47(2) of the Constitution since, as Dr Alexis’ writes: “In its uniqueness, section 47(2)(a) is a complete whole, entire unto itself; it expressly sets out its conditionalities or limitations; thus excluding the implying of others into it.” We must always be mindful that it provides expressly for “a motion of no confidence in the Government” to be considered and disposed of. Certainly, it is not intended to provide for a motion of Full Confidence in the Government, to be considered and disposed of!

The Constitutional and political consequences of a vote of No Confidence in the Government

The constitutional and political significance of a Vote of No Confidence in the Government is underscored by section 48(5)(b) of the Constitution, which provides that: –

(5) In the exercise of his powers to dissolve Parliament, the Governor General, shall act in accordance with the advice of the Prime Minister:

Provided that –

(b) if a resolution of no confidence in the Government is passed and the Prime Minister does not within three days either resign or advise a dissolution, the Governor-General, acting in his own deliberate judgment, may dissolve Parliament; (My emphasis)

Moreover, section 49 of the Constitution provides for general elections to be held upon the dissolution of the House of Assembly because of a vote of No Confidence in the Government. It states: –

49. (1) Subject to the provisions of subsection (3) of this section, a general election of Representatives shall be held at such time within ninety days after any dissolution of Parliament, or if the House has been dissolved by reason of a vote of no confidence in the Government at such time within thirty days after the dissolution, as the Governor-General may appoint. (My emphasis)

In contrast, no such consequences rest on the outcome of a motion of full confidence in the Government. Therefore, your ‘debate’ and vote on your motion of full confidence in the government were merely an exercise in undeserved self-congratulation.

Conclusion

In sum, the proposition that the Notice signed by at least three Representatives of the House and which is given to the Speaker pursuant to section 47(2)(a) of the Constitution is unique and distinct means that it ought not to be subject to amendment and reformulation using Standing Orders made under section 45(1) of the Constitution, since any such amendments made under these Standing Orders are expressly stated to be subject to the specific provisions of section 47(2)(a). Moreover, if the question to be voted on, that is that the House has No Confidence in the Government, passes in the House this would have momentous constitutional and political consequences, in that the Prime Minister may be replaced, or the House may be dissolved and general elections held within thirty days.

In the circumstances, it is evident that the position you hold is not supported even by the reasoning in the opinion of your designated legal gurus. Nevertheless, I shall not reciprocate the bombast exhibited in your letter to me, by which you sought to ridicule my position as being “… puerile disdain, arrogance and wrong-headed” and ”…absurd…”. Instead, I shall repeat what I said in the House, with the same strong conviction: your position is simply wrong!

Sincerely,

_______________________________________

Dr the Honourable Godwin Friday

Leader of the Opposition