Anthony Hylton | Divide and the standing orders of the House of Representatives of Jamaica

T he Speaker’s rulings are ordinarily respected and abided by all members of the House in Parliament. Where, however, the Speaker is in error on a point of law, as opposed to an error in the exercise of judgment on a matter of discretion accorded the Speaker, it is the duty of the Parliamentary Opposition to seek to have the ruling changed to comport with the applicable law.

The recent ruling by the Speaker concerning the interpretation of Standing Order 45 of the House of Representatives, whenever a call for a divide on a vote in the House is made by a member, has been challenged by the majority of the members on the Parliamentary Opposition benches. Notice of this was given several weeks ago to the Speaker in writing and a demand made for a reversal of the error on the records of the House. Notwithstanding the efforts made to have the matter addressed, the Speaker has not indicated an intention to reverse herself on a matter of constitutional importance to the proper functioning of the House and affecting the rights of individual members, as well as the Parliamentary Opposition.

The written request to the Speaker is published hereunder so as to further the debate, begun in the House, among the Jamaican people.

Madam Speaker,

Re: The Divide and the Standing Orders of the House of Representatives of Jamaica

The procedure of a divide in the Jamaican Parliament is of constitutional importance. It enables either the majority or minority in the House to register in unequivocal and emphatic terms its position on the specific issue that is before the House. It also enables each member having his or her vote on that issue (whether for or against, or an abstention) to be a matter of public record.

We have spoken before on the Opposition’s strongly held view that Standing Order 45 is manifestly clear that any member of the House can call for a divide at the end of a debate, and after the Speaker has declared whether the “ayes” or “nays” have it.

More specifically, your stated position that the matter is governed by the applicable procedure in the UK Parliament, and that the procedure of a divide is only available in Jamaica’s House of Representatives where it is unclear whether or not the particular matter has the support of the majority of Members, is both erroneous and unprecedented in Jamaica, and should be publicly withdrawn.

Since our discussion, I have done further research on the matter and present our arguments below as follows:

The Constitution of Jamaica provides in section 51 that “Subject to the provisions of this Constitution, each House may regulate its own procedure and for this purpose may make Standing Orders.” Controlling its own procedure is one of the most fundamental privileges of Parliament, as was confirmed by the Privy Council in Bahamas District of Methodist Church v Symonette [2000] 5 LRC 196.

As section 51 states, the control exercised by the House of Representatives over its own procedure by making Standing Orders is subject only to the provisions of the Constitution. Notably, it is not permissible for that control to undermine the right under the Charter to due process or fair procedures, as seen in Sabaroche v Speaker of the House of Assembly of Dominica (1999) 60 WIR 235 (CA Dom). (See also Toussaint v AG [2007] UKPC 48, 70 WIR 167, [2008] 1 All ER 1).

Standing Order 45 of the Standing Orders of the House of Representatives is pellucidly clear. It provides:

“At the conclusion of a debate the question shall be put by the Speaker or Chairman and the votes may be taken by voices aye and no, and the result shall be declared by the Speaker or Chairman stating “I think the ayes have it” or “I think the noes have it”, as the case may be, but any Member may challenge the opinion of the Chair by claiming a division.” (emphasis mine)

That “any Member may challenge the opinion of the Chair by claiming a division” is a longstanding practice of the House of Representatives of Jamaica, and this is confirmed by the authoritative treatise by Dr. Lloyd Barnett, The Constitutional Law of Jamaica (OUP 1977) at page 237.

The unambiguous procedures of the House of Representatives, as determined by the House itself in the Standing Orders that are made in accordance with the Constitution, cannot be cut down or revised with reference to the procedures of the UK Parliament.

Firstly, this would undermine the supremacy of the Jamaica Constitution, which is the supreme law in relation to our system of governance. In 2001, Trinidad and Tobago’s Court of Appeal rejected the claim that its Parliament had the privilege historically associated with the UK Parliament to determine its own composition, in Peters v Chaitan (2001) 62 WIR 244 (CA TT), stating that such a privilege is inconsistent with the terms of the Constitution. Uniquely, the Trinidad and Tobago Constitution incorporates through the Constitution in s. 55(3), all of the privileges of the UK Parliament not already expressly incorporated in the Constitution. Despite this, their courts have insisted that parliamentary privileges in Trinidad and Tobago must be consistent with the provisions of the Constitution.

Secondly, the notion that Jamaica’s Parliament ‘inherited’ all the practices and procedures of the UK Parliament is incorrect. Historically, there have always been differences between the powers and privileges of the UK Parliament and those in former British colonies. For example, the Houses of Parliament in the UK had penal jurisdiction to punish offences against its authority or dignity as contempts of parliament. In the late nineteenth century, the Privy Council in cases from Canada and Dominica rejected the claim that this penal jurisdiction as a parliamentary privilege was enjoyed by subordinate colonial legislatures, and said it was a privilege that was unique to the UK Parliament (Kielley v Carson (1842) 4 Moo PC 63, 13 ER 225 (PC Newfoundland); Doyle v Falconer (1866) LR 1 PC 328, 16 ER 293 (PC Dom)).

The authorities cited above are consistent with the well-established practice and understanding that, in the Jamaican Parliament, reference to UK Parliamentary practices to aid interpretation of the Standing Orders is confined to situations where there is either a lacuna in the Standing Orders or the meaning of a specific provision is lacking in clarity and needs elucidation from an external source. No such ambiguity or lack of clarity exists regarding Standing Order 45. Further, the long standing practice in the Jamaican Parliament supports the Opposition’s position on the matter.

Indeed, this position is enshrined in Standing Order 88, which is tellingly captioned “Matters not provided for by Standing Orders”. Standing Order 88, in clear and express terms, says that resort to the usage and practice of the UK Parliament shall be had “in any matter not provided for herein”, and “shall be followed as far as same” are not “inconsistent with these Standing Orders nor with the practice of this House”.

Standing Order 45 specifically provides for the right of any member to call for a divide, and the practice of the House in relation to the process of a divide is well-established, clear and definitive. Your decision to resort to the procedure of the UK Parliament to abrogate the express right of each member of the Jamaican House of Representatives to call for a divide is therefore ultra vires the Standing Orders and is unconstitutional.

There is a further, fundamental point which needs to be made. The Government currently holds a large majority in Jamaica’s House of Representatives, which makes your role as an impartial umpire of the processes in the House all the more critical. The Nation has a right to expect that you will not be moved to adopt flawed and unprecedented positions, without prior bipartisan consultation, in vital matters of parliamentary procedure in a way that would undermine the balanced and transparent conduct of the business of the House of Representatives.

Accordingly, we are respectfully demanding that the position as stated by you on the record in the House be withdrawn forthwith.

Yours truly,

- G. Anthony Hylton, CD, MP, leader of Opposition Business, House of Representatives.