Pro­fes­sor Hamid Ghany

With the procla­ma­tion of the Spe­cial Op­er­a­tions Bill on Oc­to­ber 6th in­stant, Trinidad and To­ba­go has now es­tab­lished a new set­tled prac­tice in re­spect of the use of the cast­ing vote of the Pre­sid­ing Of­fi­cers in Par­lia­ment (Pres­i­dent of the Sen­ate or the Speak­er) to ef­fect leg­isla­tive change.

There was de­bate in the pub­lic square when Sen­ate Pres­i­dent Wade Mark ex­er­cised his cast­ing vote giv­en by sec­tion 59 of the Con­sti­tu­tion af­ter both the Op­po­si­tion and In­de­pen­dent Sen­a­tors joint­ly vot­ed against the Spe­cial Op­er­a­tions Bill.

There were two sides to the de­bate. One was that Pre­sid­ing Of­fi­cers in our bi­cam­er­al Par­lia­ment are ex­pect­ed to fol­low British par­lia­men­tary con­ven­tions and vote in a man­ner that would pre­serve the sta­tus quo. The oth­er side of the de­bate was that there was no set­tled prac­tice on such con­ven­tions af­ter 2017 be­cause of the cast­ing votes that were ex­er­cised by Speak­er Bridgid An­nisette-George on four oc­ca­sions that year.

Af­ter pas­sage of the Bill, 16-15 in the Sen­ate, the de­bate moved in­to the are­na of the Pres­i­dent of the Re­pub­lic with overt calls for her to with­hold her as­sent to the Bill. Those calls pro­posed out­right de­fi­ance of sec­tion 80(1) of the Con­sti­tu­tion on pres­i­den­tial com­pli­ance with the ad­vice of the Cab­i­net.

The mat­ter has been set­tled by pres­i­den­tial as­sent to the leg­is­la­tion. If the in­vi­ta­tion of those who were press­ing the Pres­i­dent to de­fy the Cab­i­net and the fi­nal vote in the Sen­ate was ac­cept­ed, there would have been very good grounds to al­lege that she would have be­come a dic­ta­tor in do­ing so.

The core is­sue at the heart of the cast­ing vote de­bate was whether the found­ing fa­thers of our re­pub­li­can Con­sti­tu­tion in­tend­ed that the cast­ing vote, giv­en to the Pre­sid­ing Of­fi­cers in the event of a tie on any mea­sure be­fore the Hous­es of Par­lia­ment, was in­tend­ed to thwart the will of any Gov­ern­ment.

If that were so, the Con­sti­tu­tion would have in­clud­ed spe­cif­ic guide­lines for the use of the cast­ing vote. How­ev­er, no such guide­lines are set out. That places the cast­ing vote in the realm of the dis­cre­tion of the Pre­sid­ing Of­fi­cers. A new set­tled prac­tice has been es­tab­lished by Sen­a­tor Mark as Pres­i­dent of the Sen­ate, which is that the cast­ing vote is re­al­ly a con­science vote.

When there has been a clash be­tween British par­lia­men­tary prece­dent or con­ven­tions and the de­mands of our writ­ten Con­sti­tu­tion, the lat­ter has al­ways pre­vailed. In the cel­e­brat­ed case of Chan­dresh Shar­ma v At­tor­ney Gen­er­al of T&T [2007 UKPC 41] and al­so cit­ed in West In­di­an Re­ports (2007) 70 WIR 287, the is­sue of de­nial of pay­ment to elect­ed MPs on the ground that there was no Speak­er to ad­min­is­ter their par­lia­men­tary oath to them was de­cid­ed by the Privy Coun­cil in favour of Shar­ma af­ter the High Court and Court of Ap­peal had ruled against him.

Ac­cord­ing to the judg­ment:

“Held, al­low­ing the ap­peal, that the Con­sti­tu­tion by im­pli­ca­tion con­ferred on du­ly elect­ed Mem­bers of the House of Rep­re­sen­ta­tives a right to be paid a salary for their ser­vices and this right was en­force­able as a con­sti­tu­tion­al pro­vi­sion; al­though such im­plied right might be sub­ject­ed to the pre-con­di­tion of their tak­ing the oath of al­le­giance be­fore any salary was payable (cf the rule in Er­sk­ine May), any such pro­ce­dur­al rule must in case of con­flict yield to the stronger im­per­a­tive of the im­plied con­sti­tu­tion­al pro­vi­sion.”

This prin­ci­ple could not have been made clear­er in the Shar­ma case. There was no ba­sis to use rules pre­scribed in Er­sk­ine May’s Par­lia­men­tary Prac­tice and Pro­ce­dure to de­ny elect­ed MPs their right to salary in our writ­ten Con­sti­tu­tion in the 18-18 tied Par­lia­ment of 2001-2002 be­cause there was no Speak­er.

The Privy Coun­cil went fur­ther to say:

“[9] British par­lia­men­tary prac­tice would in­deed sug­gest, as the courts be­low held, that the tak­ing of the oath is a nec­es­sary pre-con­di­tion of the right to pay­ment of salary as a Mem­ber of Par­lia­ment. But British par­lia­men­tary prac­tice of­fers no guid­ance in the unique par­lia­men­tary sit­u­a­tion which oc­curred in Trinidad in 2001-2002. The Board was re­ferred to no oc­ca­sion, and is aware of none, on which it has proved im­pos­si­ble to elect a Speak­er of the House of Com­mons, which elec­tion is or­di­nar­i­ly (fol­low­ing in­ter-par­ty dis­cus­sion) a rel­a­tive­ly un­con­tentious mat­ter.”

The case turned on the fact there had nev­er been any in­stance when the UK House of Com­mons had failed to elect a Speak­er, there­by ren­der­ing Er­sk­ine May ir­rel­e­vant.

On the cast­ing vote is­sue, the new set­tled prac­tice which this gov­ern­ment and fu­ture gov­ern­ments can re­ly up­on is that the con­science vote of the Pre­sid­ing Of­fi­cer can en­act leg­is­la­tion where there is a tie.

Pro­fes­sor Hamid Ghany is Pro­fes­sor of Con­sti­tu­tion­al Af­fairs and Par­lia­men­tary Stud­ies at The Uni­ver­si­ty of the West In­dies (UWI). He was al­so ap­point­ed an Hon­orary Pro­fes­sor of The UWI up­on his re­tire­ment in Oc­to­ber 2021. He con­tin­ues his re­search and pub­li­ca­tions and al­so does some teach­ing at The UWI. He was se­lect­ed by the THA to guide the dis­cus­sions on To­ba­go au­ton­o­my.