Dou­glas Mendes

Much has al­ready been said about the con­sti­tu­tion­al pro­pri­ety of the mo­tion of no con­fi­dence in the Leader of the Op­po­si­tion which has now been drag­ging on and on in the House of Rep­re­sen­ta­tives. It has tak­en many twists and turns. The Op­po­si­tion mem­bers have walked out on every oc­ca­sion that it has been called up for de­bate.

It was in­ter­rupt­ed by what the Speak­er him­self has now re­ferred to as un­par­lia­men­tary re­marks by one of its mem­bers, even as the Speak­er has re­fused to call up­on her to ac­count for her high­ly defam­a­to­ry and dis­taste­ful re­marks about the Op­po­si­tion Leader's de­ceased par­ents and his own con­duct more than 40 years ago. More on that mo­men­tar­i­ly.

The Con­sti­tu­tion does not make any pro­vi­sion for a mo­tion of no con­fi­dence in the Leader of the Op­po­si­tion. It pro­vides on­ly for a mo­tion of no con­fi­dence in the Prime Min­is­ter. This is an im­por­tant con­sti­tu­tion­al mea­sure. To be ap­point­ed, the Prime Min­is­ter must com­mand the sup­port of a ma­jor­i­ty of the elect­ed mem­bers of the House.

It would fol­low that if she los­es that sup­port, she los­es the right to lead the Gov­ern­ment. Where a mo­tion of no con­fi­dence is passed there­fore, the Prime Min­is­ter must ei­ther re­sign, leav­ing it open to the Pres­i­dent to ap­point some­one in her place, or dis­solve Par­lia­ment, thus clear­ing the way for a gen­er­al elec­tion.

The prin­ci­ples of rep­re­sen­ta­tive democ­ra­cy un­der­pin our Con­sti­tu­tion. The Gov­ern­ment must al­ways be pre­pared to demon­strate that it con­tin­ues to have the sup­port of the elec­torate as demon­strat­ed by the con­fi­dence of the ma­jor­i­ty of the elect­ed rep­re­sen­ta­tives. If it los­es the sup­port of the ma­jor­i­ty, it like­wise los­es the right to gov­ern.

Most times, a mo­tion of no con­fi­dence will be ini­ti­at­ed by a mem­ber of the Op­po­si­tion. Some­times, but on­ly rarely, it em­anates from the Gov­ern­ment bench­es. When it does, it will have been be­cause of a split in the Gov­ern­ment which could not have been re­solved be­hind closed doors. The mo­tion may have been lodged as lever­age over a re­cal­ci­trant Prime Min­is­ter cling­ing to pow­er.

Ab­sent a re­volt among Gov­ern­ment mem­bers, a Prime Min­is­ter has lit­tle to fear from a mo­tion of no con­fi­dence brought by the Op­po­si­tion. But that by no means sig­ni­fies that an Op­po­si­tion-spon­sored mo­tion of no con­fi­dence is a waste of par­lia­men­tary time or is oth­er­wise in­ap­pro­pri­ate. Even when it is known that it will be in­ef­fec­tive in bring­ing down the Gov­ern­ment, the mo­tion of no con­fi­dence serves the le­git­i­mate pur­pose of call­ing up­on the Gov­ern­ment to ac­count for its stew­ard­ship. As one con­sti­tu­tion­al schol­ar point­ed out, the mo­tion of no con­fi­dence "oblig­es every gov­ern­ment to de­fend it­self, ex­plain its poli­cies, and jus­ti­fy its ac­tions, to its own back-benchers, to the op­po­si­tion par­ties, and through them to the coun­try as a whole." Some­times, the same pur­pose is achieved by a mo­tion of con­fi­dence (as op­posed to 'no con­fi­dence') brought by a mem­ber of the Gov­ern­ment. Al­though not specif­i­cal­ly pro­vid­ed for, mo­tions of con­fi­dence are now a reg­u­lar fea­ture of the par­lia­men­tary land­scape in the Com­mon­wealth.

The Leader of the Op­po­si­tion is ap­point­ed as such be­cause he com­mands the sup­port of the ma­jor­i­ty of those who op­pose the Gov­ern­ment. And he can be re­moved by the Pres­i­dent if, in the Pres­i­dent's judg­ment, he ceas­es to com­mand that sup­port. Usu­al­ly, the Pres­i­dent would be moved to re­place the Leader of the Op­po­si­tion as a re­sult of some ex­tra-par­lia­men­tary com­mu­ni­ca­tion from the mem­bers on the Op­po­si­tion bench­es that he/she has lost their sup­port. Al­though not pro­vid­ed for, there is no rea­son why mem­bers of the Op­po­si­tion could not lodge a mo­tion of no con­fi­dence in the Leader of the Op­po­si­tion in or­der to pro­vide the Pres­i­dent with ev­i­dence that the in­cum­bent Leader has lost ma­jor­i­ty sup­port.

The­o­ret­i­cal­ly, there is al­so no rea­son why the Gov­ern­ment could not lodge a sim­i­lar mo­tion in the hope or ex­pec­ta­tion that a ma­jor­i­ty of the Op­po­si­tion would vote in favour, there­by pro­vid­ing the Pres­i­dent with the ev­i­dence he needs to act.

Oth­er than as a mech­a­nism to prompt the re­moval of the Leader by the Pres­i­dent, there is al­so no rea­son why the mo­tion of no con­fi­dence could not be le­git­i­mate­ly used to call up­on the Leader to ac­count for his own stew­ard­ship.

The Leader of the Op­po­si­tion is re­quired to per­form im­por­tant con­sti­tu­tion­al and oth­er statu­to­ry func­tions. For ex­am­ple, he must be con­sult­ed by the Pres­i­dent in ap­point­ing the Chief Jus­tice and the mem­bers of the Elec­tions and Bound­aries Com­mis­sion. He is al­so to join with the Prime Min­is­ter in rec­om­mend­ing a can­di­date for the post of chair­man of the Po­lice Com­plaints Au­thor­i­ty.

There can be noth­ing wrong in call­ing up­on him to ac­count for any of his de­ci­sions made in the dis­charge of his func­tions, and a mo­tion of no con­fi­dence is an ap­pro­pri­ate and con­ve­nient ve­hi­cle for that pur­pose.

It is a le­git­i­mate mea­sure, even though in­ef­fec­tu­al to cause his re­moval, as long as its pur­pose is to force him to jus­ti­fy the way in which he has per­formed his con­sti­tu­tion­al du­ties.

Apart from the rank sala­cious­ness of Mrs Ver­nel­la Al­leyne-Top­pin's re­marks, what has some com­men­ta­tors up in arms about her con­tri­bu­tion is the fact that an oth­er­wise le­git­i­mate con­sti­tu­tion­al mech­a­nism, de­signed for the pur­pose of en­sur­ing ac­count­abil­i­ty, was mis­used and abused to pur­sue some per­son­al vendet­ta against Dr Kei­th Row­ley.

How Dr Row­ley was con­ceived more than six decades ago can­not pos­si­bly have any bear­ing on the dis­charge of his con­sti­tu­tion­al func­tions. Nei­ther can un­sub­stan­ti­at­ed ac­cu­sa­tions of rape.

The mech­a­nism which could have been used to bal­ance out this ob­vi­ous abuse has now it­self been abused by the Speak­er. Mrs Al­leyne-Top­pin ought to have been re­ferred to the Priv­i­leges Com­mit­tee. It is lu­di­crous and laugh­able that the Speak­er could have in­ter­pret­ed what she said in her per­son­al state­ment as an apol­o­gy.

Re­al­ly, Mr Speak­er?