By Sean Douglas
September 10, 2013 – newsday.co.tt
Speaker Wade Mark removed St Joseph MP Herbert Volney, “with immediate effect” from the House of Representatives moments after yesterday’s Budget Speech, in an unprecedented invocation of the “Crossing of the Floor” provisions of the Constitution.
Volney resigned from the United National Congress (UNC) — on which ticket he had been elected to the House on May 24, 2010 – after being fired as Justice Minister over the “section 34” scandal, and has since joined the Independent Liberal Party (ILP).
Mark, unfazed that a gap in the Standing Orders had stopped past efforts to eject defecting MPs, said these House rules elsewhere let him deem Kamla Persad- Bissessar as the UNC leader in the House who is the apt person to trigger the process of Volney’s removal.
Hardly had Mark finished his ruling when Volney rose from his place, shook hands with Chaguanas West MP and ILP leader, Jack Warner, and quietly left the chamber, pursued by reporters.
Mark began his ruling by citing the letters sent to him by Volney and Persad-Bissessar, both confirming Volney’s exit from the UNC. (See Page 19A)
On July 31, Mark had received Volney’s letter of the same date which said, “I am to advise of my resignation from the United National Congress with effect from July 30th, 2013. Honourable Speaker is to be guided accordingly.”
Mark said on September 3, he got Persad-Bissessar’s letter dated August 26, which said Volney, elected under the UNC, had told her by letter he had resigned the party with immediate effect.
Mark quoted section 49(2)(e) of the Constitution, “A member of the House of Representatives shall also vacate his seat in the House where …. having been a candidate of a party and elected to the House, he resigns from or has been expelled by that party.”
Mark said section 49A(1) said that in such circumstances the party leader in the House must write to inform the Speaker, who shall at the next sitting declare the MP to have resigned or been expelled from the party.
The MP has 14 days to mount a legal challenge to such ruling (49A(2) and 49A(3)), or if not he must vacate his seat after that period, and cease to perform his functions as a member of the House of Representatives, only to resume if he wins his legal proceedings (49A(4)). The Constitution (49A(5)) says the Standing Orders must make provision for the identification and recognition of each party’s leader in the House. Mark said the question is whether the lack of a specific Standing Order identifying each party leader under 49A(5) would frustrate the crossing of the floor debarment of an MP under.49(2)(e).
Mark said the key questions are whether 49A provides a procedural code for 49(1)(e) which requires an MP to vacate his seat; whether it had been Parliament’s
intention that the making of Standing Orders should be a prerequisite for the Speaker to invoke49A; and whether any procedural gap exists due to the lack of such Standing Orders and could such gap be filled in some other legitimate way?
He opined that section 49A in itself is “an almost complete procedural code” and that any gap in the Standing Orders does not bar his exercise of powers or jurisdiction over Section 49A of the Constitution.
Mark said, “The Speaker’s power to declare that a member has resigned or has been expelled from a party is not defined by the procedural manner of notification but by the fact of resignation or expulsion.” So the gap in the Standing Orders means the sole area of uncertainty is in the identification of “the leader in the House of every party.”
Mark then quoted two rules that give the Speaker a certain discretion to rule, and that suggest the Prime Minister is her party’s leader in the House.
Firstly he quoted Standing Order 92, on “General Authority of the Speaker”, saying, “The Speaker shall have power to regulate the conduct of business in all matters not provided for in these Standing Orders” and “the decision in all cases for which these Standing Orders do not provide, shall lie within the discretion of the Speaker, and shall not be open to challenge”.
Mark said, “Consequently, it is my view that it is within the power of the Speaker to determine for the purposes of section 49A who is the leader in the House of any party in respect of which section 49(2)(e) relates, such power not to be exercised arbitrarily.”
Secondly, he cited section 76(1) of the Constitution which says the Prime Minister is the MP who “commands the support of the majority of Members” (or in a minority government) is the MP “most likely to command” such support. Mark said since Persad-Bissessar was identified as UNC leader to become Prime Minister under 76(1), she should now also be recognised as UNC leader under the “Crossing of the floor” provisions under 49A of the Constitution.
Mark gave a five-point ruling.
Firstly, Section 49(2)(e) of the Constitution says an MP who resigns his party must vacate his seat. Secondly, Volney had notified him of his resignation from the UNC. Thirdly, the failure to make Standing Orders mentioned 49A(5) does not invalidate 49(2)(e) of the Constitution. Fourthly, despite the lack of Standing Orders, the Speaker is empowered to ascertain the leader of any political party in the House. Fifthly, Persad-Bissessar is unquestionably the UNC leader in the House, and it was appropriate for her to notify him of Volney’s resignation.
“Therefore, Honourable Members, I hereby declare that Mr Herbert Volney, MP, the Member for St Joseph having been a candidate of the United National Congress and elected to the House, has resigned from the United National Congress,” declared Mark. “Accordingly, the Honourable Member is required under Section 49A(4) of the Constitution to cease to perform his functions as a member of the House of Representatives with immediate effect. The Honourable Member shall be entitled to resume the performance of such functions only if and when the legal proceedings referred to in subsection 49A(3) are finally determined within the meaning of that subsection in favour of the Honourable Member.”
Volney, talking to reporters later, accused Mark of violating his constitutional rights, promised a legal challenge and vowed to continue to serve his constituents on the ground while Warner handles St Joseph constituency affairs inside the House.
“I think that I will leave it to my attorneys to take the necessary legal action to show that the Speaker has violated the Constitution and has deprived me of the protection of the law,” said Volney.
Asked how he felt, he said, “Me? I was prepared for the worst. I am scared for Trinidad and Tobago, that this country is being ruled from Rienzi (UNC HQ Rienzi Complex).”
Volney said that while he had expected the ruling last Friday from Deputy Speaker Nela Khan in the chair, when that had not occurred he was not surprised when it happened yesterday.
“I was holding out the hope that the Speaker would have done what was right, and he has not, so his way has to be corrected.”
Would he resign and run in a bye-election?
“I have given consideration to resigning the seat but it will not be at the timing of the Government. It will be at the timing of the Member of Parliament, when my constituents tell me that we are ready in St Joseph to defeat the UNC and the PNM.” He said he has 14 days to take legal action on the matter and his attorneys have been preparing over the last 10 days. He said, “I will resign, if at all, when it serves the best interests of my constituents.”
“If I am to go by the precedents of the past, as in the times of other persons who crossed the floor, they can serve their constituents. The Privy Council quite clearly stated — in the case of ‘Chandresh Sharma and Others against the Attorney General’ — that a Member of Parliament has other functions. He has constituency functions as well — to serve his constituents, having been elected for that purpose. The parliamentary function is but one function of an elected Member of Parliament. What will happen (is that) until such time as I successfully challenge the Speaker’s ruling, Mr Warner will represent the constituents of St Joseph in the Parliament.” Asked if he had just waved to or waved off the Speaker by his hand gesture, Volney said, “You can arrive at your own conclusions.”
He declined to spell out the details of his upcoming legal challenges to the Speaker’s ruling, but would let his lawyers do their work.
Volney said a Speaker is bound by a standing order to consider precedent when making his rulings. “If he looked back into the history of this Parliament he would have seen that successive Speakers have not accepted the move to implement the Crossing of the Floor Act because there have been no standing orders. The Speaker quite clearly acted as judge, jury and executioner, and has violated the provisions of the Constitution. I have nowhere else to go but to court. I respect that he’s the Presiding Officer and I must behave myself but what it means is that the people of St Joseph will not have a voice.”
Persad-Bissessar told reporters she had kept her MP’s oath to uphold the Constitution and the law. “I upheld the oath I took by informing the Speaker accordingly as the Constitution provides in Section 49A,” she said. “The matter went to the hands of the Speaker. The Speaker has now spoken.”
Mulling a legal challenge by Volney, or a bye-election in St Joseph, Persad- Bissessar said, “We will be prepared for any eventuality, whether it be with respect to the legal action or with respect to a bye-election.” On whether the House Standing Orders should have been amended to recognise her as the leader of the party in the House from which Volney resigned, Persad-Bissessar said, “Given the Standing Orders were not there, my legal advice and my own advice to myself in this regard was that the Standing Orders would not preclude the action, the declaration being made.” Opposition Leader, Dr Keith Rowley, later told reporters, that Volney has gotten his “comeuppance,” and he hoped Volney would now tell what happened with Section 34.
“This development has no precedent in our Parliament and therefore I am absolutely certain there will be to-ing and fro-ing in the courthouse on this matter,” he said.
Rowley not surprised by Mark’s ruling
It’s time St Joseph MP Herbert Volney sees his friends for what they are. This was the advice given by Opposition Leader Dr Keith Rowley after Speaker Wade Mark declared at the end of yesterday’s budget presentation that the St Joseph seat was now vacant. Speaking at a news conference held after the budget presentation, Rowley said he was not surprised by Mark’s announcement. “This government has brought to the country nothing but bacchanal and confusion in public administration. “And any government whose prime minister could pick the day of the budget, and also pick, on that day, to solve its political problems by this development, which has absolutely no benefit…the only people who would benefit from this development are lawyers chosen by the Attorney General, and nobody else,” Rowley added.
Jack wants St Joseph by-election
Jack Warner deems it spiteful and vindictive of the Speaker to declare St Joseph MP Herbert Volney’s seat vacant yesterday. Under Section 49 A of the Constitution, Speaker Wade Mark called on Volney to cease performing his duties as MP. Volney shook hands with Warner after hearing the news and waved his hand backward at the chamber while walking out. Warner, the ILP leader and MP for Chaguanas West, called on Volney to resign and have the government tried in the court of public opinion. “I think it is vindictive. I think it is provocative. It is an attempt to frustrate any of those members on the other side who were even having thoughts about joining the ILP. I don’t think what was done today was constitutionally right. I believe Mr Volney has a case and will win in any court.