Prof Hamid Ghany

There is now a de­sire to parse words over (i) leg­isla­tive change, as op­posed to (ii) pro­ce­dur­al mo­tions, in re­la­tion to the cast­ing vote.

It would ap­pear from ar­gu­ments ad­vanced last week by two for­mer Speak­ers that there is some flex­i­bil­i­ty on pro­ce­dur­al mo­tions as op­posed to leg­isla­tive change where the cast­ing vote is con­cerned.

The po­lit­i­cal ef­fect of po­ten­tial­ly neu­ter­ing any Gov­ern­ment’s leg­isla­tive agen­da by com­bined floor votes in the Sen­ate be­tween the Op­po­si­tion and In­de­pen­dent Sen­a­tors to block leg­is­la­tion by us­ing British con­ven­tions threat­ens every fu­ture gov­ern­ment. Sen­ate Pres­i­dent Wade Mark law­ful­ly ex­er­cised his cast­ing vote as he saw fit in ac­cor­dance with sec­tion 59 of the Con­sti­tu­tion.

Every pre­sid­ing of­fi­cer in our Par­lia­ment can ex­er­cise that vote as they see fit, and they have. Ref­er­ence has been made to Dr Lin­da Ba­boolal’s cast­ing vote on De­cem­ber 14th, 2004, on a pro­ce­dur­al mo­tion to de­bate an­oth­er Bill to­geth­er with the Cari­com (Re­moval of Re­stric­tions) Bill.

The Hansard re­veals the ne­go­ti­a­tion be­tween Ba­boolal, Leader of Gov­ern­ment Busi­ness, Dr Lenny Saith, Leader of Op­po­si­tion Busi­ness, Wade Mark, and con­venor of the in­de­pen­dent bench, Dr East­lyn McKen­zie.

There was a di­vi­sion at the re­quest of Sen­a­tor Mark. The re­sult was a 14-14 tie. That is when the con­fu­sion set in. The Sen­ate Pres­i­dent sus­pend­ed the sit­ting of the Sen­ate for ten min­utes. Dr Saith lat­er made a pro­pos­al to the Sen­ate on the de­bate of the Bills.

The Hansard re­veals what hap­pened af­ter that:

“Sen Mark: Madam Pres­i­dent, a vote was tak­en on this mat­ter. Whilst we will want to en­gage in dis­cus­sions, we feel that the par­lia­men­tary pro­ce­dure and prac­tice de­mands of your good of­fice that you come down one way or the oth­er, and let us set­tle this mat­ter. At this time, I do not want us to en­gage in fu­tur­is­tic mat­ters.

What we are very clear on is that we are not de­bat­ing these Bills con­joint­ly. These Bills are too weighty; they are too heavy; and they have very se­ri­ous and far-reach­ing con­se­quences for the peo­ple of this Re­pub­lic. We are not pre­pared to deal with these two Bills con­joint­ly. (Desk thump­ing)

We want to fol­low the pat­tern of the House of Rep­re­sen­ta­tives and deal with these Bills sep­a­rate­ly.

Madam Pres­i­dent: I un­der­stand that.

Sen Mark: We will like you to vote on this mat­ter, and let us deal with this mat­ter once and for all.

Madam Pres­i­dent: Dr McKen­zie?

Sen Dr McKen­zie: Madam Pres­i­dent, chat­ting with my Mem­bers on this side, we know that the Sen­a­tor did say that this week we will be do­ing the Bill. We al­so re­ceived a note that this par­tic­u­lar Bill would be tak­en through all its stages.

We al­so recog­nise that there are very se­ri­ous mat­ters to be dis­cussed, and we can­not en­vis­age that to­day we would car­ry the Bill through all its stages.

The opin­ion of most of the Mem­bers here is that we go to a rea­son­able hour this evening and re­turn next week Tues­day and com­plete the Bill. We do not care how long we stay next week Tues­day. We feel that to­mor­row is pret­ty close.

Some sen­a­tors are still look­ing at the amend­ments since we on­ly re­ceived them a short while ago. The main thing here is that we do not think that we could fin­ish these Bills to­day.

Madam Pres­i­dent: Are you say­ing that the In­de­pen­dent Bench­es are chang­ing their votes?

Sen Dr McKen­zie: No.

Madam Pres­i­dent: Are you still vot­ing against the Bill?

Sen Dr McKen­zie: Well, I do not know. I can­not speak for oth­er Sen­a­tors be­cause we do not cau­cus on that kind of mat­ter.”

(Hansard, Sen­ate, De­cem­ber 14, 2004, p 998).

As in the House of Rep­re­sen­ta­tives in 2017, the Gov­ern­ment al­so had prob­lems with full at­ten­dance of their Sen­a­tors. On­ly one per­son - an in­de­pen­dent sen­a­tor - was grant­ed leave that day. The Gov­ern­ment should have had 15 Sen­a­tors and not 14, which caused this prob­lem to arise. Why?

As far as Sen­a­tor Mark was con­cerned, the Sen­ate Pres­i­dent should “come down one way or the oth­er”. This is the same Sen­a­tor Mark who ex­er­cised a cast­ing vote dur­ing the Chil­dren’s Life Fund (Amend­ment) Bill dur­ing the com­mit­tee stage and not at the fi­nal vote. He was al­so forced to vote on two re­cent Bills (Spe­cial Op­er­a­tions and Pro­cure­ment) to break ties.

The cast­ing vote was ex­er­cised neg­a­tive­ly in 2004 on the pro­ce­dur­al mat­ter to per­mit on­ly one Bill to be de­bat­ed af­ter much ne­go­ti­a­tion and a sus­pen­sion of the sit­ting.

Based on the views last week of for­mer Speak­ers on cast­ing vote flex­i­bil­i­ty on pro­ce­dur­al mat­ters, this neg­a­tive pro­ce­dur­al vote can now be added to the “no set­tled prac­tice” ar­gu­ment list­ing.

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.