The Jeff Cumberbatch Column – Doing Things with Rules II

Another intriguing issue on the law relating to governance that arose for discussion in the recent Caribbean Court of Justice decision on appeal from Guyana on which I commenced discussion in this space last Sunday was the seemingly trite one of whether a motion of confidence that is expressly provided for in Article 106 (6) of the Constitution contemplated a similar result as a motion of no confidence.

One would have instinctively thought the issue of confidence in a government should be freely available in a democratic society to any member of Parliament, although the precise form in which it is cast would of course differ depending on the member’s sympathies (confidence) or dissatisfaction (no confidence) with the governing administration. According to this, the government would of course seek to have confidence in itself expressed by the Parliament, while; to the contrary, the Opposition forces would naturally attempt to sway the parliamentary sentiment to its side by moving that there is no confidence in the government.

However, in the case under discussion, argument before the Court on this point was joined because of the Respondents’ sophist submission that there was a fundamental difference between a motion of confidence and a motion of no confidence; that the political result of a Government’s defeat on these respective motions drastically differ; and that the consequences set out in Article 106(6), which prescribe that the government must resign if it is defeated on a motion of confidence, are inapplicable to those circumstances when the government is defeated on a motion of no confidence.

Interestingly enough, they relied for these arguments on the authority of a passage from a briefing paper that commenced its commentary by observing-

[i]t is a core convention of the UK constitution that the Government must be able to command the confidence of the House of Commons. The traditional position was that a Government that lost a confidence vote would resign in favour of an alternative administration, or the Prime Minister would request a dissolution from the Queen, triggering a general election…”

That this core principle of the Westminster system exists locally has been established by our own experience in 1994; indeed it would appear therefrom that given the practicalities of governance, the measure once passed does not even have to attain the constitutionally stipulated majority to be effective.

In his leading judgment, President Saunders was in no doubt that this principle also applied to Guyana and that by whatever name it might be titled, a determination of such confidence was an intrinsic feature of most Westminster-styled systems of parliamentary governance. In his words,

The fact that Article 106(6) speaks of “a motion of confidence” and not a motion of no confidence is unimportant. It does not affect the operation of the principle. These are mere linguistic differences denoting different sides of the same coin. Motions of confidence are used strategically, whether initiated by the government or the opposition, to serve their own political ends. In the one case, the aim of the government supporter moving the motion may be to demonstrate Parliament’s confidence in the government at a period when the government or the state as a whole is experiencing challenging times…”

My observation here is as to the slenderness of the majority required in Guyana to express no confidence in a government thereby forcing it to resign or call fresh elections. As we noted last week, it took the vote of a single member to ensure the defeat of the governing administration since his vote served to constitute a majority of all members of the National Assembly present and voting.

The equivalent Barbadian provision, cast rather under the rubric of causing the resignation of a Prime Minister is similar. According to section 66 (2) of the Constitution, the office of a Prime Minister shall become vacant…

If the House of Assembly by a resolution which has received the affirmative vote of a majority of all the members thereof resolves that the appointment of the Prime Minister ought to be revoked and the Prime Minister does not within three days of the passing of the resolution either resign or advise the Governor-General to dissolve Parliament, the Governor-General shall, by instrument under the Public Seal, revoke the appointment of the Prime Minister.

It will be recalled that in 1994, ALL members of the House were not present for the vote and so the motion was not carried in law although there was, ultimately, a dissolution of Parliament nevertheless and the calling of a general election. The question has frequently been asked whether such fundamental motions should not require a super majority such as the one is required for amendment of certain provisions of the Constitution, for example.

I suppose the answer lies in the possibility that an administration may gain office by a single seat or vote and hence it should also be possible for it to lose office by similar means. To adopt condign dicta from the judgment of Saunders P. when referring to minority or slender majority governments-

The Constitution envisages, however, that such a government’s precarious hold on power is conditional upon no express motion of no confidence against it being validly passed by the majority of the members of the National Assembly.”

Or, as applied to our own circumstance, that the precarious tenure of the Prime Minister of such a government is conditional on no motion that the appointment of that Prime Minister ought to be revoked being validly passed by the majority of the members of the House of Assembly.

To be continued…

3 comments

  • de pedantic Dribbler

    @Dean Jeff, I accept that the lawyers had brought several grounds on appeal re this case and that the point you deemed as a “sophist submission” was in many regards surely a vexatious add-on…but in circumstances like that can’t the judges dismiss childish arguments out-of-hand and state as such!

    I see nothing clever” and everything *specious -as one definition of sophistry offers – re any fundamental difference between a motion of confidence and a motion of no confidence …it’s a nonsense argument.

    Additionally, the wording by Sanders J were hard to understand on a first reading when he said:
    “The Constitution envisages, however, that such a government’s precarious hold on power is conditional upon no express motion of no confidence against it being validly passed by the majority of the members of the National Assembly.”

    It was not deeply complicated as being impossible to grasp but the phrasing was surely not first-time read clear.

    Maybe….

    “The Constitution envisages, however, that such a government’s precarious hold on power is conditional upon ANY MOTION of confidence against it being validly passed by the majority of the members of the National Assembly. A MAJORITY DEFEAT TO A MEMBER’S CONFIDENCE VOTE IS AN UNEQUIVOCAL VOTE OF NO CONFIDENCE.”

    …a confidence motion is only carried with a majority vote so really the word majority is superflous surely..not so!

    Just saying senor…often too many passages in these learned decisions are worded oddly and that should NOT be the case!

    Liked by 2 people

  • The two arithmetic calculations at the centre of this legal dispute seems not important in the determination of the CCJ.

    Certainly, the constitution of Guyanese seems to suggest one method and Westminster tradition/s purports another.

    Another matter was immerging subsequent to is whether dual nationals are properly members of the parliament in the first place.

    Liked by 1 person

  • Vincent Codrington

    @ Pachamama at 2:23 PM

    A written constitution takes precedence over a constitution guided by convention. This situation arises when we are confused. We want to have a written constitution but cannot let go of traditional approaches to problem solving. It is schizo- phrenic.

    Like

Join in the discussion, you never know how expressing your view may make a difference.

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s