PROFESSOR ROSEMARIE ANTOINE "RESOLVES" THE DEPUTY SPEAKER CRISIS

The debate on "the constitutional issue surrounding the vacancy of the Deputy Speaker and subsequent protest by Opposition Parliamentarians" continues to dominate both the news and social media networks. Professor Rose Marie Antoine - a  law professor and consultant - elucidates the issue in the context of three questions posed by a Facebook colleague.

PROFESSOR ROSEMARIE ANTOINE

She dispels all doubt when she explained that “ALL references to the ‘Speaker’ are therefore to include Deputy Speaker, unless the context specifically excludes it” which is the point that the AG, the Minister for Housing and the Speaker herself missed.

Here are the questions by the Facebook user and the answers by Professor Antoine:

THE QUESTIONS BY FACEBOOK COLLEAGUE:

1. Where a Law/Convention/Regulation does not agree with the letter of the Constitution; which one takes precedence?

2. What is your interpretation of Section 35.3 of the Constitution and;

3. Why do you think the content of Section 35.3 was left out of Section 36? Given your eminence in the field of law, your answers should do a lot in clarifying this matter. Thanks in anticipation of your reply. “

THE ANSWERS FROM PROFESSOR ROSEMARIE ANTOINE:

1. Where exactly is there any CONFLICT between the constitution and the Standing Orders which are derived from it? The S.O. merely ‘amplify’ or fill out the details of the constitution, helping to explain its meaning, much like the Travaux Preparatoires in a Treaty. A constitution remains essentially a statement of fundamental mores and principle. There is no question of ultra vires here if that is what you are implying. This is a non issue.

2. S. 35(3) is very clear in saying that the House cannot sit without the Speaker. Its true interpretation in relation to the Q. at hand, i.e. within the context of the Deputy Speaker, lies in the answer to your Q. 3, below.

3. This is another non issue. While s. 35(3) makes no specific mention of the Deputy Speaker, as opposed to the Speaker, it is well established that where there is a post which is an ancillary/ substitute post, such as a Deputy, it is usual to describe only the functions of the substantive post, in this case, the post of Speaker. ALL references to the ‘Speaker’ are therefore to include Deputy Speaker, unless the context specifically excludes it. Only occasionally, will legislation refer specifically to the substitute post, for emphasis, for instance. For example, nowhere, in our constitution do we see a provision which specifically provides for every function of the Deputy Speaker, that he or she can sit for the Speaker when he is ill, out of the country etc. The constitution is generally silent as to the exact functions and roles of the Speaker precisely because it is inferred that references to Speaker must logically include references to the Speaker. Thus, where the constitution demands that the House cannot proceed with a vacancy in the post of Speaker, we should include in our reading ‘Deputy-Speaker.’

I have some sympathy for the Speaker since it is a common mistake to interpret the constitution literally (its ‘letter’ as you said). As I stated earlier, the constitution is to be interpreted ‘purposively’, giving liberal effect to its purposes and intent (Fisher v AG). The intent of these constitutional provisions could never have been to give leeway to any MP/ party to arbitrarily and unreasonably determine, ‘wily nily’, when, or indeed, if ever, a DS was to be appointed, in order to give effect to narrow partisan, political agendas or any other reason. The intent and meaning of ‘convenience’ in this constitutional context is simply to acknowledge that (as happened) a DS post could become vacant in between sittings of Parliament and it would not be feasible to fill the position immediately and this would need to happen when next the House sat. The House in fact, sits at the convenience and bidding of the ruling party. The Constitution never presumes to tell the ruling party when it would be convenient to convene Parliament. The meaning of ‘convenient’ therefore can only mean at the next sitting, whenever Parliament (at the bidding of the ruling Party) deems it ‘convenient’ to sit (convene)!

It is a presumption of the constitution that for Pment to be properly constituted – all positions have to be filled. The implication in your type of argument is that since (it is argued) it is not mandatory for the House to sit with a Deputy Speaker, the position of Deputy Speaker itself is optional, not mandatory. This is an entirely false supposition. Were that the case, the use of the word ‘shall’ in relation to the Deputy Speaker would never have been used in the constitution in the first instance. The constitution would simply have said: ‘There MAY be a Deputy Speaker.’ Yet, at no time in the constitution is the word ‘may’ used in relation to the Deputy Speaker and we thereby understand that it is imperative for the position of Deputy Speaker to be filled before the House can be said to be properly constituted.

When all is said and done – one cannot escape the fact that the process was hijacked for the narrow and inappropriate convenience of the ruling party. I completely disagree with Dane Gibson and whomsoever suggested that this is pure politicking on the part of the Opposition. This is a serious issue of constitutional propriety. It is perfectly acceptable and indeed expected, that those who recognize and object to this flagrant disrespect and violation of the constitution, stand up, protest and if needs be, walk out of Parliament in a rigorous defence of our most sacred and founding law, the constitution. Further, in such a scenario, no disrespect occurs to a Speaker, since the Speaker is also a servant of the Constitution, the “supreme law of the land” (Collymore v. AG), as are we all. A ruling by a Speaker on an aspect of the constitution can never be authoritative or even Final! This is because the Speaker has neither the authority, (nor often the expertise BTW), to adjudicate on constitutional principle. That is the prerogative of the courts, under our separation of powers doctrine. Such a decision by the Speaker is entirely different to when the Speaker rules on e.g. who should be recognized to speak, who is speaking out of turn etc., all matters of procedure which are insignificant when compared to issues of constitutional substance.

Walking out of Parliament in protest is indeed a common feature of parliamentary practice as we have inherited it from the British, just as the downing of tools by workers is a recognized mark of protest by workers. Both are, in fact, fundamental attempts to protect our very democracies. Indeed, those who believe that the constitution is being violated and an ultra vires or illegal act is being perpetuated have not just the right to protest, but indeed, the DUTY to do so. Incidentally, I have personally attended Parliament in Great Britain and I can testify that it is much, much rowdier than any of our Parliamentary sessions.

Moreover, as was explained by the Leader of the Opposition: if, the Opposition, or any citizen chooses to bring this matter to court, not only will all the decisions made under the illegal sitting be held null and void as a result of being ultra vires, but also, those who sat and participated in the proceedings, would also be guilty of contributing to that illegality.

A further non issue that has been raised is the assertion that Opposition politicians also found it inconvenient not to nominate a DS and that somehow the Opposition had equal responsibility for this fiasco. What I have said earlier about the inaccuracy of linking the constitutional term ‘convenient’ to the narrow concerns of any parliamentarian, instead of to the next convened sitting of the House, which clearly is the responsibility of the ruling party since it convenes Parliament, suffices to address the issue. In other words, while the word ‘convenient’ refers to the sitting of the House, it is the ruling party that determines when it is convenient for Parliament to sit, so indirectly, it assumes the responsibility that Parliament be properly constituted so as to have the legitimacy to sit as requested. In addition, as I have stated previously, for those reasons and for reasons of parliamentary practice or political convention, all of which place the responsibility or onus on the ruling party, this is also a non-argument and distortion of proper constitutional jurisprudence. This is what Sir John understood and why he made Marcus resign his ministerial post to permit his nomination as Deputy Speaker in the first place!!!

There are thus 2 separate issues that led to the violation of the constitution: (1). The House ‘s sitting was ultra vires (illegal) since it proceeded with ‘business’ when it was improperly constituted due to the vacant post of DS. (2) The interpretation of ‘convenient’ as it pertains to the filling of a vacancy of DS was an unreasonable and inappropriate reading of the constitution according to proper constitutional norms and was wrong.