Supreme Court ruling on 1st Deputy Speaker’s voting – Kwaku Azar writes

A United States-based Ghanaian professor, Professor Kwaku Asare popularly known as Kwaku Azar has expressed his sentiment over the Supreme Court’s ruling on the voting right of the First Deputy Speakers of Parliament, Joseph Osei Owusu.

The renowned professor noted he was not impressed with the judgement citing a number of reasons why in a Facebook post sighted by GhanaPlus.com.

Below is the full statement he made on the matter

We have seen it. We have read it. We are unimpressed by it.

There is nothing in the Constitution that explicitly says that a presiding deputy speaker is entitled to vote. The Abdulai Court uses three building blocks to arrive at the conclusion that they are entitled to vote, which, in turn became the basis for invalidating standing order 109(3) as unconstitutional.

These are (1) Only contract-related conflict of interest can bar an MP from voting; (2) the Constitution makes a distinction between a non-voting quorom and a voting quorum. Since the former does not count a presiding MP and the latter is based on all MPs, it follows that the former bars the presiding member from deliberations and the latter entitles him to a vote; (3) the Constitution says the Speaker has neither an original nor a casting vote. Since it uses Speaker rather than a presiding member, it follows that a Speaker Pro Tempore retains his vote.

We examine these building blocks to test the validity of the conclusion.

1. Contract-related conflicts are not the only Bar

Article 104(5) provides that “A member who is a party to or a partner in a firm which is a party to a contract with the Government shall declare his interest and shall not vote on any question relating to the contract.”

Article 104(5) clearly means that a contract-related conflict of interest bars an MP from voting. But it does not mean ONLY a contract-related conflict of interest bars an MP from voting.

There are any number of ways that an MP can lose his vote, including if he is suspended for disorderly conduct or, in the case at bar, if he assumes presiding functions that are inconsistent with the functions of an ordinary MP. Parenthetically, some MPs serve on the Board of SOEs (not good practice) and should not vote on issues related to these SOEs, etc.

The logic that MPs are disqualified from voting ONLY on contract related conflict of interests and the two propositions flowing thereof (namely, (i) Speaker is disqualified from voting not because he presides but because he is not an MP, (ii) presiding is not a disqualifying conflict) must fail, leaving the decision with nothing to hang on.

But there are more issues.

1. Voting Quorom versus Voting Rights

The voting quorum is a protective device to ensure that a certain minimum number of MPs are present before voting can commence. It has nothing to with whether a Member who is present is eligible to vote on the issue.

That is why Article 104(1) says “matters in Parliament shall be determined by the votes of the majority of members present and voting, with at least half of all the members of Parliament present.”

This simply says first at least 1/2 of 275 MPs must be present. When that hurdle is met, the issue is decided by a simple majority of those who are present and voting.

An MP can be present and abstain or be disqualified from voting because he is presiding at the meeting or for some other reason, such as contract, familiar, SOE, etc. conflict of interest.

This also clarifies that merely because the “non-voting quorum” differs from the “voting quorum” does not mean being counted in the latter quorum is conclusive of being allowed to vote.

The non-voting quorum is in Article 102 and is in the form of “a quorum of Parliament, apart from the person presiding, shall be one-third of all the members of Parliament.”

It is necessarily lower because it is a threshold to start the business of the house whereas the voting quorum is higher to ensure the presence of a representative section of the house before decisions are made. Neither quorum has anything to do with who is eligible to vote on specific issues. Nor do they say anything about who is eligible to deliberate.

The logic that excluding a presiding deputy speaker from the “non-voting” quorum while including him in the “voting” quorum means he is barred from debates but entitled to vote necessarily fails.

Quorom is a green light for an action to commence but has nothing to with rights and entitlements at the action! The later must be sought elsewhere.

III. The return of Literalism

Article 104(2) provides that “the Speaker shall have neither an original nor casting vote.” Who does the “Speaker” therein refer to?

A literal approach will land on an obvious answer —— only the Speaker. But that approach is not the proper way to interpret this Article and to answer the question.

The inquiry should involve why the Speaker is not giving an original or a casting vote?

An obvious, but not a satisfactory answer, is that he is not an MP. But a more probing answer is that he performs a presiding role that will be incompatible with the functions of a presiding officer and derogate from the important attribute of impartiality and the non-partisanship presiding model (see below).

Thus, one must review the history of our parliaments, do a holistic analysis involving other articles, have a deep appreciation of original versus casting vote, and even engage in a comparative analysis of countries, such as UK, that have developed the convention that MPs who are given additional duties as Speakers and Deputy Speakers should not also have a vote.

That the Speaker, in Article 104(2) does not have an original vote is instructive. It will be surplusage if this command was directed to the Speaker, who is not an MP.

This is because it is trite that only MPs have an original vote. No extra words need to be spent on saying that a non-MP cannot vote. We must conclude that the reference to the original vote cannot be referring to the non-MP Speaker of the House.

The original vote bar had to be targeted to a person who ordinarily will be entitled to vote, such as an MP who is also presiding.

Such an analysis, that draws from our history, comparative analysis and a holistic evaluation of the relevant articles, would have led to the inescapable interpretation that Speaker, as used above, refers to anyone performing that function, so called Speaker Pro Tempore.

In effect, the Article means if an MP is presiding he does not maintain his original vote.

Moreover, neither a Presiding MP nor the substantive Soeaker has a casting vote.

The literal interpretation of “Speaker” as referring only to the Speaker as used in the context of voting rights, original or casting, must be rejected for a broader interpretation that includes anyone performing the functions of the Speaker.

1. Political Question Doctrine

This doctrine simply means that the courts will not hear a case that presents a political question. Such cases are those that deal directly with issues that the Constitution makes the sole responsibility of the other branches.

The doctrine does not put the executive or parliament above the law but merely says the Courts will not interfere with matters assigned to them as long as they do not act ultra vires the Constitution.

Thus, in Asare v. AG & Amoateng, the Court invalidated the indefinite absence that parliament granted to an MP, holding that an MP automatically vacated his seat if he is absent from parliament without the written permission of the Speaker for MORE than 15 sittings in a meeting.

In the instant case, Parliament in exercising its power to regulate its procedures decided that an MP who is elevated to a Presiding officer must be seen to be impartial and can therefore not take part in the deliberations or vote.

This is not ultra vires the Constitution and the Court tries but fails to provide a persuasive argument as to why it should be questioning and rejecting Parliament’s wisdom to decide that a presiding MP cannot vote.

Rather, what is clear is that Parliament has exercised its power to regulate its voting procedures and that the plaintiff seem unhappy with that exercise because of the outcomes, perhaps stalemate, that it has produced in one parliamentary transaction.

There is no constitutional command that a presiding MP can vote, which the Court pointed out as having been violated. At worst, we can say the Constitution is silent on that issue, which Parliament has resolved with its power to regulate its own procedures or even perhaps by its residual powers.

A presiding officer performs several constitutional functions. MPs are asked to view persons presiding as impartial and are asked to accord them respect and deference. They are to accept their rulings. That authority is coextensive with the requirement to be impartial, in fact and in appearance.

The Court’s ruling upsets this relationship but the Court fails to consider how ordinary MPs will react to the Presiding MPs, now that they are asked to treat them as ordinary MPs. Will an MP take kindly to his amendment being ruled out of order by another MP who has a vote on the issue in contemplation?

Will the Court be able to enforce this judgment? The enforcement challenges is one reason why Courts do not question the procedures of parliament, and why issues related to voting in parliament are procedure of parliament, the protestations notwithstanding (see procedures in parliament above Article 100).

It would have been helpful if the Court’s comparative analysis had identified that globally there are two competing models: the non-partisan presiding member model (e.g., UK) and the partisan presiding model (e.g., USA).

Ghanafuo seem to have chosen the UK model, under which the Speaker and his three deputies are non-partisan even though there are MPs. In fact, in UK the elected MP-Speaker severs all ties with his political parties and his deputies maintain a complete non-partisan posture.

Further, Ghanafuo have taken an additional step by requiring that the Speaker not be an MP at all.

Our preference for an impartial Speaker explains why many of our Speakers, starting from Justice Quist, Akiwumi, Annan, Bamford-Addo, etc. have come from the Judicial fraternity.

Once this preference is understood, it also becomes clear why any Presiding MP, who is accorded all the respect and deference due to the Speaker, is therefore not expected to remain partisan while in the role of a Speaker Pro Tempore.

That is why the standing orders explicitly state that such presiding members cannot vote and it has been that way for decades!

1. The Constituents lose their vote and voice

A final word on the oft repeated claim that presiding MPs lose their voice or vote. This is a complete myth that fails to appreciate the nature of parliamentary processes and the power that comes with being a deputy speaker.

One only has to pay attention to the number of committees headed by the deputy speaker and the access that they have to the corridors of power and the purse to appreciate this point.

These access and opened doors ultimately inures to their constituents’ benefit.

A Deputy Speaker enjoys supra-rights not sub-rights as advertised!

The occasional lost vote pales in comparison to the pork that a deputy speaker can take to his constituents. If you do not believe me ask any Deputy Speaker. It is instructive that they are not rushing to give up these positions because they have lost their votes and voices.

It is also amusing that this concern for constituents’ loss of representation seem to hinge on just the vote but not the voice. It is almost as if constituents do no care that their MPs are disabled from deliberations, while presiding, but only care about the vote. Surely, representation has to mean more than a muzzled MP reduced to a voting machine. The whole bifurcation between deliberation and voting has little substance.

1. When Voting Quorom established

A voting in parliament is an elaborate process that starts with debate and ends with a vote, which often is by viva voce or by division, when an MP, recognized by the Presiding MP, calls for a division.

If a voting quorom is present for the viva voce vote, can a member or members not happy with the outcome call for a division and defeat the viva voce vote by merely failing to show up for the division (i.e., a quorum maneuver)?

GOGO thinks not! This is why a voting quorum once established cannot be broken until the voting, viva voce and division, ends.

To reason otherwise, is to allow a losing group on the viva voce vote to frustrate the voting outcome by simply failing to show up for a division that it called for. The voting quorom is not to be used for such political maneuvers.

VII. The Perverse Incentives Obiter

The reference to perverse incentives of a Speaker or one of the deputy Speakers to gain political advantage is unfortunate. It is prudent, from a comity perspective, for the Court to presume that the Speakers will act regularly in accordance with their stated oaths. It will not be a good thing for parliament too to attribute opportunism to the august bench.

In any event, the observation is rather rich coming from a Court that does not realize or give much weight to the perverse incentives of a voting presiding member.

We have been in the process of building an impartial presiding model. It is unfortunate to tear down 3 decades of construction merely to accommodate the even numbers returned by one election.

VIII. Going Forward

In any event, we must accept the new landscape and react by amending the constitution to allow for the hiring of non ex-gratia receiving career civil servants, not of the same gender, to serve as deputy speakers.

#SALL is the cardinal sin of the 8th Parliament.

Da Yie!

Source: GhanaPlus.com