Saturday, February 24, 2018

One abstention will do it

All eyes on the Senate’s Independent bench...


FLASHBACK: Prime Minister Kamla Persad-Bissessar shows a copy of the Constitution during the wrap-up of debate on the Constitution (Amendment) Bill 2014 during a marathon session of Parliament at International Waterfront Centre, Port of Spain, on Monday, August 11. At left is Minister of Labour Errol McLeod. —Photo: ANISTO ALVES



All Government needs is for one Independent senator to abstain or to be absent from his or her seat when the vote on the Constitution (Amendment) Bill is taken, and the bill would pass in the Senate tomorrow. All eyes will be on the Senate and specifically on the Independent bench in the Upper House as it debates the Constitution (Amendment) Bill 2014, at Tower D, International Waterfront Centre, Port of Spain.

The numbers in the Senate are 15 Government (and one Government senator who presides), six Opposition and nine Independent. The bill needs a simple majority, which means the majority of those present and voting. Assuming all 31 members are present and the vote is split, the person in the chair is required to exercise a casting vote.

A casting vote is substantively different from an original vote in parliamentary rules and practice.

The senators on the floor have an original vote, while the person in the chair (presiding officer) in this jurisdiction (in harmony with the British House of Commons) only has a casting vote. With an original vote, you act freely on the basis of personal convictions or, in the case of political parties, on the basis of the Whip. When the chair is called upon to exercise a casting vote, he/she only uses it when the votes are equal. In this circumstance, the principle is that the person exercising the casting vote votes to preserve the status quo.

The reason for this is that it allows the matter to be looked at again.

The other basis for the principle is that if the Government is unable to garner sufficient support on the floor to change or pass a law, the attempt must fail, and the Government cannot rely upon the person sitting in the chair (Speaker or Senate president) to be the deciding individual. This means that Government senator James Lambert, who will preside over tomorrow’s debate, like former Senate presidents Linda Baboolal and the incumbent Timothy Hamel-Smith before him, would be required to vote against the bill, in the event of a tie, in accordance with practice.

The presiding officer in Trinidad and Tobago has traditionally and consistently followed this rule.

Absent from tomorrow would be Senate president Hamel-Smith who is overseas. Also expected to be absent is Independent senator, senior counsel Elton Prescott, who is also overseas and would be returning at the end of the month.

Two temporary senators are expected to be sworn in to replace them.

Given the intensity of the debate over the bill and the level of concern that has been expressed over the process, the issue is whether the Independent senators would vote for the status quo or whether they would vote to change it. In the face of what appears to be a broadening call for a review of the decision to debate the bill, Prime Minister Kamla Persad-Bissessar is taking the bull by the horns. The Prime Minister has taken the unprecedented step of moving (piloting) the bill herself in the Senate.

The closest precedent to this action was when former prime minister Patrick Manning contributed (though he did not pilot) the Municipal Corporation Amendment Bill in July 2009, a bill which sought to extend the life of the local government bodies for the third consecutive time and which facilitated the postponement of local government elections.

The Constitution (Amendment) Bill proposes radical reform of the electoral system, which includes the less controversial provisions of a two-term limit for the Prime Minister and the right of recall for non-performing MPs. The most controversial provision of the bill, however, is the run-off or two-round system, where a candidate fails to get 50 per cent of the vote. In such instances, the bill proposes that there would be a second poll between the “winner” and runner-up.

France is the only stable democracy that uses the run-off system in its legislative assembly elections (or Parliament).

The countries that use the run-off, or two round system, for legislative or parliamentary elections are France, Belarus, Kiribati, Haiti, Cuba, Iran, Uzbekistan, Turkmenistan, Bahrain, Egypt, Central African Republic, Mauritania, Gabon, Mali, Vietnam, North Korea, Mongolia and others. Opponents of the run-off system point to the fact that many, if not most, of these countries have a history of dictatorships, warfare and military takeovers. Many think that it is ironic that for a bill which is allegedly designed to deepen the democratic process, all it would take for these constitutional amendments to succeed is for one Independent senator to abstain or be absent.

And if the bill is passed and becomes law, it is almost certain that it would be contested in the courts, judging from the statements of Opposition People’s National Movement (PNM) spokesmen, as well as former attorney general Ramesh Lawrence Maharaj. The Senate debate begins at 1.30 p.m. tomorrow and is expected to continue on Wednesday.

Each senator has one hour to speak. Unlike the House of Representatives, the Senate standing orders have not been amended to curtail the speaking time. It means that the country is potentially looking at 31 hours of debate (for 30 senators and the Prime Minister) before we know whether any Independent senator would give the Government the vote to effect the significant constitutional changes contained in the bill.