UNIQUE PROVISIONS OF THE VINCENTIAN CONSTITUTION ON NO CONFIDENCE MOTION: ABSURDITY ALERT
Opinion
by
Dr Francis Alexis QC
- SUBJECT
1.1 The subject on this Opinion is what is the proper interpretation of certain provisions which the State of Saint Vincent and the Grenadines (‘St. Vincent’) has in its 1979 independence Vincentian Constitution.1 Those are the provisions in paragraph (‘para’) 2.1 below.
- SECTION 47(2)
2.1 This Opinion is on Section 47 of the Vincentian Constitution. Section 47 is Annexure ‘A’ hereto.
2.2 Particular focus is on subsection (2)(a) of section 47; this may hereinafter be referred to as ‘section 47(2)(a)’.
3.0 UNIQUE IN THE CARIBBEAN
3.1 In having section 47(2)(a), St Vincent is unique in the Commonwealth Caribbean. No other independent Commonwealth Caribbean country has any provision even remotely resembling section 47(2)(a).
3.2 To draw attention to section 47(2)(a), this writer set out section 47(2)(a) almost verbatim in para 14.53 of his book Changing Caribbean Constitutions,2 a copy of which paragraph is Annexure ‘B’ hereto.
3.3 This writer is not aware that section 47(2)(a) is likewise reproduced by any other writer.
3.4 Section 47(2)(a) apart, the Vincentian Constitution is generally one of the Constitutions which reflect varieties of the constitutional parliamentary system of government evolved from Westminster, home of the UK Parliament. They are called ‘Westminster model’ Constitutions, familiar across the Commonwealth.3
4.0 NOT IN BILL OF RIGHTS
4.1 Provisions in Chapter 1 of the Vincentian Constitution, sections 1-16, the Bill of Rights, are for protection of fundamental rights and freedoms. Such provisions are given what UKPC in Minister of Home Affairs v Fisher4 called ‘a generous interpretation…suitable to give to individuals the full measure of the fundamental rights and freedoms’.5
4.2 Section 47(2)(a) is not in the Bill of Rights, section 1-16. So, how the generous interpretation would apply to section 47(2)(a) is not readily apparent.
4.3 The Prime Minister of the Solomon Islands would not have Parliament convened for the House to debate a motion of no confidence in the Prime Minister tendered by the Leader of the Opposition. The Attorney-General said the Prime Minister was correct on a generous interpretation of the Constitution. The High Court accepted it should adopt a generous interpretation,6 but rejected the stance of the Prime Minister.7
4.4 The generous interpretation formulated in Minister of Home Affairs v Fisher is suitable to afford individuals the full measure of the fundamental rights and freedoms.
5.0 IN GENERAL PART
5.1 Section 47(2)(a) is in what may be called the ‘general part’ of the Constitution, that is, the provisions of the Constitution other than those in the Bill of Rights.
6.0 CONTEXT OF SECTION 47
6.1 Section 47 reconciles principles of liberal parliamentary democracy with the rule of law.
6.2 A session of Parliament shall be held as such place within St Vincent and begin at such time as the Governor-General shall appoint by Proclamation, a function reposed on the Governor-General by section 47(1) of the Constitution; Annexure ‘A’ hereto refers.
6.3 In the exercise of that function, the Governor-General shall, by section 55 of the Constitution, act in accordance with the advice of the Cabinet of Ministers or a Minister acting under the general authority of the Cabinet who is ordinarily the Prime Minister.
7.0 IMPLICIT LIMITATION OF SECTION 47
7.1 It may happen that there is a real question as to whether there applies to a particular situation the combined effect of sections 47(1) and 55 requiring the Governor-General to act in accordance with the advice of the Prime Minister in appointing a place and time for the holding of a session of Parliament.
7.2 There may be such floor-crossing by a Representative or Representatives in the House of Assembly from Government to Opposition as to put in issue whether the Prime Minister any longer enjoys the support or confidence of the majority of the Representatives. Suppose that is followed by the giving of notice in writing to the Speaker of the House signed not less than three Representative of a motion of no confidence in the Government.
7.3 If, in the scenario portrayed in para 7.2 above, the Prime Minister advices the Governor-General not to appoint a place and time for the holding of a session of Parliament for the motion to be debated and disposed of, the Governor-General might nonetheless appoint a place and time for that purpose.
7.4 The ability of the Governor-General to act as envisaged by para 7.3 above would be an implicit limitation of the combined effect of sections 47(1) and 55 referred to in para 7.1 above. But this would be through section 47(2)(b) which preserves the power of the House to provide for notice of a motion of no confidence being given by any member of the House or the power of the House to debate and disposed of such a motion at any sitting of the House. This saving effected by section 47(2)(b) emphasises how special is section 47(2)(a).
8.0 WARRANTING CIRCUMSTANCES
8.1 In the Solomon Islands in August 1998, six members of Parliament defected from the Government and joined the Opposition, resulting in the Prime Minister having twenty-four MPs supporting him, as against the Leader of the Opposition having twenty-five MPs supporting him. Parliament was not then in session.
8.2 The Leader of the Opposition wrote the Governor-General on 7 August 1998 asking him to summon a special session of Parliament to debate a motion of no confidence in the Prime Minister.
8.3 The Prime Minister advised the Governor-General that there was no need for such special session, that the motion should await the next regular session of Parliament scheduled for 12 October 1998. Contrary to the advice of the Prime Minister, the Governor-General summoned a special session for 8 September 1998 to debate the motion.
8.4 The Prime Minister challenged that action of the Governor-General, in Ulufa’alu (Prime Minister) v Governor-General.8 The High Court held that the Governor-General acted lawfully in directing Parliament to convene to debate the no confidence motion. The Court reasoned that the central feature of the structure of Government is majority rule, with the Prime Minister needing the majority support of members of Parliament. Since it was demonstrated that the Prime Minister did not have such majority support, the Governor-General was correct to act contrary to the advice of the Prime Minister. The Court ordered the Speaker to fix a new date for the debate.10
8.5 The normal machinery provided by the Constitution for the Governor-General summoning Parliament was that he would do so on the advice of the Cabinet or the Prime Minister. But, the Court added: ‘There are circumstances in which, when the normal machinery provided by the Constitution becomes unworkable or impracticable, the Governor-General is entitled to exercise his powers [to summon Parliament] without the advice of the Prime Minister’; when there are ‘circumstances which warrant him to do so’.11
8.6 The Court indicated such warranting circumstances appropriate to the case before the Court. First, it had been demonstrated that the Prime Minster did not have the majority support of Representatives, he had that of twenty-four as against that of twenty-five for the Leader of the Opposition. Second, there was a denial of an opportunity for the House to consider the motion expeditiously, in the Prime Minister saying on 7 August the House should wait till 12 October for the debate.
8.7 Conversely to there having been those two circumstances in Ulufa’alu the Court never suggested that a motion of no confidence must be debated whenever, or as often as, such a motion is presented.
9.0 TWO-STAGED VINCENTIAN PROCESS
9.1 When the section 47(2)(a) was featured in Changing Caribbean Constitutions,12 it was never suggested that section 47(2)(a) requires that whenever, and as often as requisite notice of a motion of no confidence is given, the motion must be debated and disposed of.
9.2 Section 47(2)(a) has a two-staged process. Paras 9.3-9.13 below refer.
STAGE 1
9.3 Stage 1 requires that:
(i) the Speaker cause the motion to be ‘considered’ within seven days of the notice of the motion, by section 47(2)(a)(i);
(ii) the Speaker cause the motion to be ‘considered’ within fourteen days of the said notice, by section 47(2)(a)(ii);
(iii) the House is to meet and ‘dispose of’ the motion within twenty- one days of the said notice, by section 47(2)(a) proviso.
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’.
9.6 If, however, that period of twenty-one days expires without the motion having been ‘considered’, or without the House having ‘disposed of’ the motion, the picture changes; the process is taken to the stage 2. Paras 9.7-9.13 below refer.
STAGE 2
9.7 If the House does not, within twenty-one days of the notice, meet and dispose of the motion, section 47 (2)(a) proviso moves the process to a different dispensation, in stage 2. Several characteristics mark this stage as being distinct from stage 1. Paras 9.8-9.13 below refer.
9.8 Whereas in stage 1 summoning the House is for the Speaker; at stage 2 the Speaker is displaced by the Clerk of the House as the functionary to summon the House.
9.9 Also, what the Clerk of the House shall summon is ‘a special meeting of the House’. Only in this proviso is this expression used.
9.10 Again, in stage 1 the Speaker has specific time-lines for the motion to be ‘considered’, given by section 47(2)(a)(i) as seven days and fourteen days; or for the House to ‘dispose of’ the motion, given by section 47(2)(a) proviso as twenty-one days. But at stage 2 the Clerk of the House summons a special meeting of the House at ‘such time and place as he may specify’.
9.11 Further, it is only at stage 2, when the Clerk of the House summons a special meeting, that section 47(2)(a) says that the purpose of the meeting is that of ‘debating and disposing of the motion’; a formulation the framers again use in section 47(2)(b).
Why the difference
9.12 The spirit driving section 47(2)(a) is that a no confidence motion should be disposed of expeditiously, measured by section 47(2)(a) as being with twenty-one days of the notice of the motion. Once the Speaker ensures that the motion is considered by the House, or the House disposes of it, within that time, section 47(2)(a) is satisfied. How the House disposes of it is a matter within ‘the power of the House’, to borrow from section 47(2)(b).
9.13 If that period of twenty one days expires without the Speaker ensuring that the motion is considered, or that the House disposes of the motion, the spirit of section 47(2)(a) is defiled. The consequences include that the Clerk of the House displaces the Speaker in summoning a special meeting and that this shall be for the purpose of debating and disposing of the motion.
10.0 ABSURDITY ABJURED
10.1 That it is at stage 2 of the process, when the Clerk of the House summons a special meeting, that its purpose is debating and disposing of the motion, is so by express stipulation of section 47(2)(a) proviso.
10.2 It is so, too, by the principle of interpretation regarding provisions in the general part of the Constitution, in which section 47(2)(a) is located. This imparts to a provision in the general part a broad generous purposive approach, to give effect to the purpose of that provision or the purpose which the framers intended; the provision is afforded a ‘purpose construction’.13
10.3 Without a purposive construction, section 47(2)(a) might require that any and every time notice of a no confidence motion is given to the Speaker, such motion must automatically be debated and disposed of by a certain time.
10.4 To apply such automaticity to section 47(2)(a) is to read into the provision a time frame which is not written into it expressly. That would result in a right in any three Representatives to have such a debate any and every time they give the Speaker the requisite notice. That would guarantee such a motion perhaps better accommodation than business put forward by the majority of the Representatives, the Government. Three Representatives could torpedo the processing of the annual estimates of revenue and expenditure simply by strategically giving notices of such motions. This would be a plain manifest absurdity. Section 47(2)(a) is alert against such absurdity by setting out the different staged referred to in paras 9.2 to 9.13 above.
10.5 Once a right flowing from automaticity referred to in para 10.3-10.4 above is conceded, neither the Speaker nor the House may turn around and impose on it limitations as to the frequency with which such motions may be presented, to cut down the frequency by, for example, reasonableness. What would be a reasonable frequency, monthly, quarterly, half-yearly, yearly? Such question does not admit of an answer without absurdity.
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.14
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.15
10.8 All such awkwardness and absurdity would be fully avoided by applying to section 47(2)(a) a purposive construction. When this is done, a no confidence motion may be considered or disposed of in accordance with the power of the House, once this is done within twenty-one days of the stipulated notice. Failing that, at such time as the Clerk shall specify, the motion shall be debated and disposed of. This means that there is no obligation to debate such a motion any and every time notice of one is given.
10.9 That section 47(2)(a) does not require such absurdity is reinforced by section 47(2)(b) preserving no confidence motions other than those under section 47(2)(a). For there would be no need to preserve such other no confidence motions if those under section 47(2)(a) must always be debated and disposed of.
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.
