The Speaker correctly ruled that the “motion is carried”

Jan 03, 2019 Letters

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DEAR EDITOR,

Strange thing to say that on this matter of the legality/validity of the December 21st no-confidence motion, I fully concur with Ralph Ramkarran, S.C and Anil Nandlall! The Speaker correctly ruled that the “motion is carried”. Attorney Nigel Hughes cannot be right.
Our constitutional jurisprudence, as I will show, rejects, and does not countenance, that Hughesian approach, in the real life setting of our National Assembly. For, what is 33 votes out of 65, if not a majority? And the inherent fallacy about a majority being 34 votes (as argued by Hughes) is that it is based on, that false, incompetent, and inadmissible premise about the addition of one (the plus 1) to what is already (even mathematically) a number (i.e. 33) that is higher/greater than half; and is not half of 65 seats/votes.
I start my considered rejection of that 34 votes requirement argument with this question: if 33 votes is not a “majority” in terms of article 106, then what is it? Plainly, and surely, it is not a minority of votes; nor a tie. And if it is not some minority, then by any standard of logic and/or common sense, it can only be a majority, for on a true interpretation of “majority”, it is used by the draftsman in contradistinction to minority.
Any other notion must be voodoo arithmetic or voodoo constitutionalism, and faces a certain demise in a learned Court of Appeal; emphatic rejection at the Caribbean Court of Justice.
In the Interpretation And General Clauses Act Cap 2:01 (which by reason of article 232(9) applies in the interpretation of the Constitution) Parliament in section 32 made provision as to “power of majority”. Not the slightest hint of any complexity defying our understanding of “majority” appears in section 32. Indeed, the simplicity of its popular understanding must have been taken by the draftsman to be so axiomatic, and given, that he saw no need to define it with the introduction of complexity.
I turn now to the British anomaly, the Theresa May (Prime Minister), No-confidence, so-called international view about the need to secure 159 out of 315 votes to secure a British majority.
I would emphatically reject that position as useless, and inadmissible and unreliable for the purpose of interpreting article 106 (6) “majority” wording in our Constitution on these grounds: (a) that British position is extra constitutional (b) it is not some judicial/case law precedent of the House of Lords of England; and (c) to the extent it is presumably based on British parliamentary practice, it is not necessarily some reliable guide as to an interpretation of article 106(6), and if inconsistent with article 106 (6), accordingly void for inconsistency with our supreme law – the Constitution (article 8).
And here is why it is forensically dangerous to rely on that British formula. In the case Adegbenro v. Akintola (1963), Viscount Radcliffe writing for the Privy Council in rejecting the notion of applicability of British practice in relation to the written Westminster model Nigerian Constitution (our 1980 Constitution is also based on the Westminster model) wrote relevantly thus – “Another argument has been advanced to the effect that the Nigerian constitutions are modelled on the current constitutional doctrines of the United Kingdom.
While it may well be useful on occasions to draw on British practice or doctrine in interpreting a doubtful phrase whose origin can be traced… it is in the end the wording of the constitution itself that is to be interpreted and applied and this wording can never be overridden by the extraneous principles of other constitutions which are not explicitly incorporated in the formulae that have been chosen as the frame of the constitution” [ (1963) 3AII ER544 at page 551] A most poignant passage indeed.
I submit that there is nothing doubtful about the phrase “the vote of a majority…” in article 106 (6). I submit further that this British method of adding one falls within Viscount Radcliffe’s memorable phrase “extraneous principles”, which is not explicitly incorporated in the formulae “a majority of all the elected members of the National Assembly…” that has been chosen by our Constitution framers. It leads to bizarre consequences.
If the learned Attorney’s proposition be right, then this majority by one seat APNU+AFC Government could, ex hypothesi, have never validly passed any Bill, did validly pass any Bill by its bare majority of one vote. Who in this Government believes, and accepts that the Government is under such a legislative disability?
It is difficult to agree that the word “majority” in article 106(6) was intended by the draftsman to have different meaning, and method of calculation; rather than internal consistency, where it appears in different articles of the Constitution. “Majority” in article 106(6) is not sui generis.
Readers, pause, and think: If 33 seats (which translates into 33 votes) was both necessary and sufficient for the purposes of the very election of a government, (article 177) would the Constitution require the extraordinary formality and difficulty of 34 votes to enable a 33 seats elected government to be defeated.
Putting it colloquially – if 33 can get you into government; 33 can get you out (unless there be some extraordinary constitutional imperative for more than is necessary to get into government in the very first place). This Hughesian approach stirs many curiosities which space does not permit me to elucidate on. But in a nutshell, Parliament expresses itself by its own mathematical formulae where in these matters it considers it necessary as in section 97 of the Representation of the People Act, Cap. 1:03 and in article 177(3) of the Constitution.
Editor, the truth about all this hype about 34 votes, is that by a somewhat Hughesian illogicality. constitutional context is ignored, and extravagant artificiality and arbitrariness of extra constitutionality encouraged. The case of Knowles V. Zoological Society of London (1959) 1 WLR 823 offers a workable interpretation of “majority” in uneven membership (11 out of 21).
En passant, I do not share the confidence of Counsel as to the applicability (even analogously) of the Vanuatu, or Anguilla cases. The Vanuatu case was on its special facts of an even number (52) member Parliament, rightly decided. It is patently distinguishable from our odd/uneven 65 member Parliament, where you do not need to add (plus 1) to 33 which is per se already a majority, unlike the Vanuatu case where 26 (i.e. 52 ÷ 2 to get half) was a mathematical tie (a tie is not a majority) and so the number 1 was naturally needed to be added to 26 to arrive at a majority of 27 out of 52. To apply the Vanuatu case to out 65 odd/uneven membership is to misapply it.
And I am curious as to whether the principle of functus officio does, or does not, apply to the Clerk and Speaker. And further I say not.
In his Sunday Column, Ramkarran, S.C quoted and made much of article 106(7) provision as to the three months window for resignation and Election, but deliberately did not quote after three months the words “or such longer period”. Surely, those words are not some mere surplusage, nor are they tautologous in the constitutional Scheme of things. So why their deliberate suppression? (Read my letter in GC, December 25 “Resignation now by this Government is not some fait accompli”).
I end with this: I fear that this Government could unwittingly be persuaded, and distracted, by a tangled web of deceit, trickery and missteps, from the pursuit of sound constitutional stratagem to ensure its continuation beyond three months. That three months limit is what the Jagdeo Opposition, and other government haters want, come hell or high water. This is an epic matter. It calls for an epic solution. If we on the Government side fiddle (like Nero did while Rome burned), unwittingly opening up Pandora’s box of illegitimacies, we do so at our own peril.

Maxwell E. Edwards

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