Lead Editor – Politics
akash.samaroo@cnc3.co.tt
Independent Senator Anthony Vieira SC says Senate President Wade Mark may have had the legal power to break two tied votes in the Senate, but questions remain over whether parliamentary convention supported using that power to pass legislation.
Vieira weighed in on the controversy over Mark’s use of his casting vote twice in less than a week, saying there is an important distinction between what the Constitution allows and the conventions that traditionally guide a presiding officer.
He said there was no question that Mark had the constitutional authority to cast a deciding vote when the Senate was evenly divided. Whether he exercised that power in keeping with parliamentary convention was another matter, Vieira said.
“On this question there is legitimate room for debate,” he said.
The controversy follows Mark’s use of his casting vote to pass two Government bills after the Senate was evenly divided.
Last week, the Senate split 15-15 on the Special Operations Bill. All 15 Government senators voted in favour, while the six Opposition and nine Independent senators voted against. Mark then cast his deciding vote in favour, and the Bill passed 16-15.
Less than a week later, the Senate again split 15-15, this time on the Public Procurement and Disposal of Public Property (Amendment) Bill. Mark again voted in favour, allowing the Bill to pass 16-15.
Vieira said the Constitution expressly gives the Senate President a casting vote when votes are equally divided, but does not specify how it must be used.
He said, however, that a long-established Westminster parliamentary convention guides the exercise of that power. Under the convention, the presiding officer would ordinarily vote to preserve the status quo, allow further discussion where possible and avoid making substantive changes without majority support.
That distinction, Vieira said, is at the heart of the current debate.
He stressed that constitutional convention is not the same as law. Conventions develop through history, parliamentary practice and constitutional understandings, he said. They can be important to the proper functioning of the constitutional system without necessarily being legally enforceable.
Vieira said two separate questions must be considered: whether Mark had the legal authority to cast the deciding votes, and whether he exercised them consistently with the conventions expected to guide the office.
“In my view, most certainly, he did,” Vieira said of Mark’s legal authority.
On the second question, Vieira said there was legitimate room for debate, stopping short of offering his own judgment on whether Mark’s decisions were right or wrong.
He said the controversy provided an opportunity to recognise that the conduct of constitutional officeholders is not governed solely by written law.
“Not everything that governs the conduct of constitutional officeholders is found in written law, and not every departure from convention amounts to a breach of law,” Vieira said.
“We should be careful not to confuse the two.”
