A friend telephoned me
with a question. Is the Goods and Services
Tax Act (GST Act) unconstitutional?
I asked him what was the problem?
He responded that he had heard that the Anguilla Constitution did not
authorize the ex-officio members of the House of Assembly, the Attorney-General
and the Deputy Governor, to vote on a Bill in the Assembly. They recently voted in favour of the GST Bill. This allowed it to be passed by a majority of
one. If they had not voted, the Bill
would not have become law. What did I
think of that?
I told him that in my opinion
the ex-officio members were authorised to vote on any motion before the Assembly,
save where they are specifically prohibited from doing so.
The public are presently
being consulted by government on the contents of a draft new Constitution
prepared by the Foreign and Commonwealth Development Office (FCDO) – based in
large part on the desire of Anguillians for the proposed constitutional reforms. If we object to ex-officio members voting in
the Assembly, this might be a suitable time for Anguillians to insist that this
is anti-democratic, and the new Constitution should provide that only elected
members may vote.
Section
35 of the 1982 Anguilla Constitution says that the Assembly consists of the
Speaker, eleven elected members, and two ex-officio members. Since the 2020 general elections, seven of
the elected members sit on the government benches. Four sit on the opposition side. The two ex-officio members also sit on the
government benches. That means there are
a total of thirteen members of the Assembly, plus the Speaker.
On
the vote for the passage of the GST Bill, two of the government Ministers voted
against the Bill. The total of elected
members voting in favour of the Bill was five.
Six elected members voted against the Bill. The two ex-officio members voted with the
government members in favour of the Bill, making a total of seven to six in
favour.
So,
the question is, do the ex-officio members of the Assembly have the right to
vote on a Bill before the Assembly? The
answer is to be found in the words of the Constitution and the Rules of
Procedure made under it, the Legislative Assembly (Procedure) Rules 1976.
Section
53(1) of the Constitution says who can vote in the Assembly: “all
questions proposed for decision in the Assembly shall be determined by a
majority of votes of the members present and voting.” Subsection (2) provides that the Speaker has
a casting vote only when the votes are equally divided. Otherwise, the Speaker does not vote. It should be noted, by the way, that the international
convention is that the Speaker usually exercises the casting vote to preserve
the status quo, that is, they will vote so the situation does not change.
Section 55 is relevant. It provides that, “any member may introduce
any Bill or propose any motion for debate in, or may present any petition to,
the Assembly, and the same shall be debated and disposed of according to the
Rules of Procedure of the Assembly.” In Anguilla, no one doubts that the A-G or the
D-G may introduce any motion in the Assembly, and they occasionally do so.
Section 55(1) says that
voting on Bills and Motions shall be governed by the Rules of Procedure. So, what do the Rules say about voting in the
Assembly?
The first rule to note is rule
45. Paragraph (1) provides that,
generally, voting is by voice. Members
respond with either a “Yea” or a “Nay” when called on to vote,
and the Speaker declares the result. When
the Speaker declares, “The ayes have it.
The motion is passed,” no count is taken of who voted in favour, who
did not, and who abstained.
Paragraph (2) provides that
if a member calls for a “division”, the votes of the members are taken
one by one, and each member’s vote is recorded in the Minutes. Anguilla has had an Assembly to enact laws
only since the previous 1976 Constitution.
The Council set up by the revolutionaries after separation from St Kitts
in 1967 never enacted laws. This vote on
29 July was, so far as I am aware, the first time in the short parliamentary history
of Anguilla that a division was called for.
Never before had each
member of Anguilla’s Assembly declared openly which side of a motion he or she
voted for. It cannot, therefore, truly
be said that this is the first time the ex-officio members voted on a
motion. Though no count is taken on a
voice vote, it must be assumed that the ex-officio members have always been
included in the past among those who voted with the ministers. As members of the Executive Council (ExCo) that
is their duty under the principle of collective responsibility.
Section 25 of the Constitution may
also be relevant. Subsection (1) is the
only section which limits who may vote on a motion. It reads, “If a motion that the
Assembly should declare a lack of confidence in the Government of Anguilla
receives in the Assembly the affirmative votes of two-thirds of all the elected
members thereof the Governor shall dissolve the Assembly and shall act in
his discretion in appointing the date for the ensuing general election under
section 64 of this Constitution” (my underlining for emphasis).
So, section 25 clearly
provides that a vote on a motion of no confidence may only be cast by the
elected members. A vote of no confidence
is a purely political act. It would be
improper to allow the non-elected members of the Assembly to have a say in
whether the government should stand or should fall. That would demonstrate a distinct democracy
deficit.
This is the only case
mentioned in the Constitution of the ex-officio members being prohibited from
voting. No other motion is restricted to
the elected members. What would be the
point of specifically excluding the ex-officio members from voting on this
occasion if they do not generally have the right to vote?
Other than section 25 (no-confidence
motions) rule 46 provides one other exceptional case when a member is
prohibited from voting. That is, a member
shall not vote where he or she has a “direct personal pecuniary interest”
in the subject, ie, he or she has a conflict of interest.
From all the above, there
can be no doubt that the ex-officio members of the Assembly have all the rights
of members. All members are qualified to
vote, save where specifically prohibited.
In the case of members who also sit in ExCo, they are further
constrained by the principle of collective responsibility to vote in support of
every government measure introduced into the Assembly. If they are unwilling or unable to do so,
they should resign their office.
If
the two ex-officio members declined to cast their vote in favour of the Bill
and abstained, they would have betrayed their duty to ExCo. Worse than that, from what we are told, the
CDB would not have disbursed the loan and public service salaries would not
have been paid. It is unlikely that the
public service would have been silent.
The likelihood is that the entire public service would have stayed home
from 1 August. The two ex-officio
members would have been responsible for a major government crisis.
It
will be interesting to see if salaries will be paid at the end of October. Or will the FCDO permit more bank borrowing,
or, perhaps, more raids on the Social Security Fund? The banks and the directors of the Fund must
know these loans will never be repaid unless the FCDO bails out the government
again. We have had more than half a
billion dollars from them since the 2017 hurricane. We have no right to expect such largess to
continue.
