The Jeff Cumberbatch Column – Doing Things with Rules
The notion that lawyers, and especially judges, know everything is doubtless premised on the variety of determinations the profession is obliged to make as part of its diurnal routine. Is a medical doctor liable for negligence? Did a Minister exercise his or her discretion properly? Did an accused intend to murder the deceased? These are but a few of the decisions that are matters of law and whose answers lie exclusively within the realm of legal theory. Of course, in some matters, a court will be assisted by expert evidence, especially when determining matters that depend on the practice of a particular profession. For instance, medical negligence will be found where the doctor fails to act in accordance with an accepted responsible body of medical practice. What constitutes such is a matter of evidence from a medical expert in the particular area in issue.
A similar determination arose this week in the Caribbean Court of Justice, where, as the highest court in the Guyanese legal system, it was called upon to pronounce on a number of issues concerning the law of governance in that jurisdiction. These arose out of the infamous no confidence motion brought by the parliamentary opposition against the governing coalition administration. I say infamous because it may be recalled that one member of the governing coalition parliamentary group chose to vote against his side and therefore to carry the Opposition motion by a tally of 33 votes to 32.
These matters managed to present a number of legal issues for the Court’s determination; among them, whether there was a difference between a no confidence motion that was not expressly provided for in the Constitution and a motion of confidence that was so provided? What constitutes the majority necessary for the passage of a no-confidence motion and whether the Court had jurisdiction to inquire into the issue of Mr Persaud’s [the MP who voted with the Opposition motion] qualification to be a member of the National Assembly.
Of these issues, I found the first to be the most intriguing and I have written in another capacity more times than one on the very point. The matter became a legal issue because the legal advisors to the governing administration were of the view that first, there was a difference between an absolute majority and a simple majority; and that 33 votes could not constitute a majority in a 65 member Parliament because a majority was half of the total plus one and, since there could not be 0.5 of a vote, half of 65 had to be rounded up to 33 and the added one would give a total of 34. Too besides, they argued further, since 33 was already a majority of 64 members, it could not also be the majority of 65, a grater number. Of course, this assertion took no notice of the reality that 34 was also the majority of 66, itself a greater number than 65.
I argued in one of my writings on the subject last year, relying on the learning in Robert’s Rules of Order that the use of the formula half-plus-one to constitute a majority is apt to cause problems. According to the text, “Suppose in voting on a motion 17 votes are cast. 9 in favor and 8 opposed. Fifty percent of the votes cast is 81/2 so that 50 percent plus one would be 91/3. Under such an erroneous definition of a majority, one might say that the motion was not adopted because it did not receive 50 percent plus one of the voted cast although it was, quite clearly, passed by a majority vote”.
A similar argument appeared to find favour with President Saunders who drew on his judicial experience of what constitutes a majority judgment.
“Since the Assembly comprises an odd number, there is no need to imply into the Constitution any formula for defining a majority as being ‘half plus one’. Indeed, as an American judge noted,12 the ‘50% plus one rule’ leads to illogical results when it is applied to odd numbers. So, for example, it is trite that when a Court of Appeal sits as a panel of three, a majority decision is 2:1. The Chief Justice was therefore right when she adjudged that a majority from among 65 members is a minimum of 33.”
It bears remarking that the learned Chief Justice of Guyana had also reasoned likewise although she appeared to base her determination on an obverse application of the golden rule by positing “if Persaud had voted against the no-confidence motion, the government would have accepted that the vote count of 33 is the majority of all elected members”.
In support of their argument, the lawyers for the governing administration had cited two authorities from Commonwealth jurisdictions. The CCJ found neither useful. As for the first, from Vanuatu, it related to a circumstance where an even number of members constituted the parliament.
Kilman was a case where the Vanuatu parliament consisted of 52 members. Only 51 voted on a particular motion that required an absolute majority. The result of the vote was 26:25. It was in this context that the court said as is stated above. Twenty-six votes could not carry the motion because what was needed was a majority of 52 and since 52 was an even number, in that specific context that majority could only be obtained via the formula of “half the Members of Parliament plus one”.
The second authority from Anguilla was also easily distinguished-
In that case the question concerned the number of members necessary to constitute a quorum. The Assembly comprised 11 members. The quorum requirement was two-thirds. Mathematically, two-thirds of 11 yields 7.3. The question was whether to constitute the quorum one should round up to 8 or round down to 7 members. The court held that since the concept of a quorum meant the least number possible for the valid transaction of business, one could not round down to 7 as that number would fall below the mandated quorum of 7.3. One should round up to 8 which would satisfy the quorum condition. Hughes v Rogers, therefore, has no relevance to the question at hand.
To be continued