The Government has had its run-off amendment passed in the House of Representatives and has informed us, without developing the point, that the amendment only needed a simple majority of the votes of those present and voting to be passed. Senior Counsel Martin Daly and Kenneth Lalla agreed, but if they developed their position, I have not seen it. I could not believe that the proposal only needed a simple majority, so I decided to check for myself.
After all, here is a proposal that requires a candidate (of a party) to poll more than 50 per cent of the votes cast in a constituency, whether in an original ballot or in run-off ballots, in order to earn a seat in the Lower House and, therefore, could force a voter who originally voted for a third-placing candidate to vote for either a first-placing or second-placing candidate in a run-off ballot.
Did the Constitution really say that only a simple majority of MPs voting for the proposal would suffice? I went to it to find out. For myself.
Section 54 (1) says that Parliament may alter any of the provisions of the Constitution. In the case of the run-off proposal, the Parliament, where the Government holds a majority of the seats, amended Section 73 (1), which says as follows:
‘The election of members of the House of Representatives shall be by secret ballot and in accordance with the first-past-the-post system.’
So far, for all of our history as an independent nation, we have been electing MPs by secret ballot, and we have been making the candidate with the most votes in a constituency the MP. The Government wants to change that by amending the Constitution by a simple majority vote.
Is a simple majority sufficient?
Section 54 (2 & 3) provide the whole of the answer for the Government. Section 54 (2) says that a Bill for altering ‘(a) Sections 4 to 14, 20(b), 21, 43(1), 53, 58, 67(2), 70, 83, 101 to 108, 110, 113, 116 to 125 and 133 to l37; or (b) Section 3 in its application to any of the provisions of this Constitution specified in paragraph (a)… shall not be passed by Parliament unless at the final vote thereon in each House it is supported by the votes of not less than two-thirds of all the members of each House.’
The thing to note here is that Section 73 (1) is not mentioned in the group of specified sections that can only be altered by at least a two-thirds majority of the votes.
Section 54 (3) says that a Bill for altering ‘(a) this section; (b) sections 22, 23, 24, 26, 28 to 34, 38 to 40, 46, 49(1), 51, 55, 61, 63, 64, 68, 69, 71, 72, 87 to 91, 93, 96(4) and (5), 97, 109, 115, 138, 139 or the Second and Third Schedules; (c) section 3 in its application to any of the provisions specified in paragraph (a) or (b); or (d) any of the provisions of the Trinidad and Tobago Independence Act, 1962… shall not be passed by Parliament unless it is supported at the final vote thereon—(i) in the House of Representatives, by the votes of not less than three-fourths of all the members of the House; and (ii) in the Senate, by the votes of not less than two-thirds of all the members of the Senate.’
Again, the critical thing to note here is that section 73 (1) is not included in the group of sections that can only be altered by a special majority vote.
So it appears that, if it is left out from the sections requiring a special majority vote, Section 73 (1) must therefore require a simple majority vote for passage. The Constitution does not state this requirement expressly; it only permits an inference. It is perhaps possible to think that a law can be passed on the basis of an equality of votes for and against, but custom everywhere disallows that, preferring at least a simple majority one way or the other. And in any event, the Constitution in Section (10) twice mentions ‘a simple majority vote’ as a voting basis.
But why the public outcry against the alteration of Section 73 (1) if it only needs a simple majority? Part of the answer seems to lie in section 4 (i), which identifies ‘freedom of thought and expression’ as one of our ‘fundamental freedoms’.
I mean to say, if I have the freedom of expression, why force me to vote a second time if I have already expressed my desire for a particular candidate and party?