Section 49 ‘can still function’
The failure of the House of Representatives to make Standing Orders which acknowledge Section 49 of the Constitution dealing with crossing of the floor by Members of Parliament, does not prevent the “proper functioning” of this constitutional provision.
This is according to the legal opinion which was provided to the Government in relation to the possible declaration of a vacancy in respect of the St Joseph seat.
Prime Minister Kamla Persad-Bissessar has written to House Speaker Wade Mark informing him that St Joseph MP Herbert Volney has resigned from the United National Congress (UNC). The Prime Minister’s letter pointed out to Mark that according to Section 49 of the Constitution, once the Speaker is advised by the leader of the party under whose banner the member of Parliament—Volney—contested and won the seat that the MP has resigned, he shall declare the seat vacant. The MP can challenge the Speaker’s declaration. And Volney has signalled his intention to do so, if the seat is declared vacant.
Volney has applied to join the Independent Liberal Party.
The opinion cited the 2006 judgment of the Privy Council in the case of Chandresh Sharma v Integrity Commission.
The opinion noted that in this case, under Section 41(1)(a) to (c) of the Integrity in Public Life Act 2000, the Integrity Commission had discretion to make regulations prescribing the manner and circumstances in which it was to carry out enquiries. No such regulations had been made. “The ratio of the case on this point is contained in paragraph 25 of the Privy Council judgment, namely that the absence of regulations on the matters that Section 41(1)(a) to (c) refer to did not defeat the policy or objects of the act, and that it had not been shown that they were necessary for the proper functioning of the commission. Therefore a judicial review based on delay in implementation of regulations failed,” the opinion said.
“Equally in the case of Mr Volney, it can be said that the failure to pass Standing Orders does not prevent the proper functioning of the Section 49A procedure,” the opinion stated.
It added: “It should, however, be noted that in the Chandresh Sharma case the power to make regulations was couched in terms which were very clearly discretionary. That is not the case with Section 49A(5). Nevertheless, the criterion adopted, namely whether the regulations were necessary for the proper functioning of the procedure, is equally apt in the present case.”
The opinion also cited the case involving Winston “Gypsy” Peters v AG and Franklin Khan and Bill Chaitan v AG and Farad Khan (CvA No 21 of 2001).
People’s National Movement candidates Franklin Khan and Farad Khan had challenged the validity of the nomination of Peters and Chaitan on the claim that at the time that they were nominated as candidates, they were citizens of the United States and Canada,in addition to holding Trinidad and Tobago citizenship. This was in breach of the provisions of the Constitution.
The legal opinion in examining this matter, stated: “This case is extremely helpful as regards Mr Volney’s situation. The actual ratio is that the failure of the Rules Committee, pursuant to Section 144 Representation of the People Act, to make Rules of Court prescribing matters relating to the bringing of an election petition was not fatal to the application, as the court could fill in the material gaps. Another way in which the court put it was that the making of rules was not a condition precedent to the exercise of the High Court’s jurisdiction.
“The Court of Appeal in Trinidad in the elections petitions case of ‘Gypsy’ and Chaitan held that the absence of rules did not oust the jurisdiction of the court to deal with the election petitions. The reasoning of the court is based on the fact that the absence of the rules did not result in any denial of natural justice. That is plainly the case here where MP Volney voluntarily resigned (as opposed to being expelled) from the UNC...,” the opinion stated.