Former House speaker Nizam Mohammed:

Gail Alexan­der

Se­nior Po­lit­i­cal Re­porter

For­mer House speak­er Nizam Mo­hammed says for­mer House speak­er Bridgid An­nisette-George’s use of her cast­ing vote in 2017 is not com­pa­ra­ble to Sen­ate Pres­i­dent Wade Mark’s tie-break­ing vote last Thurs­day that en­abled pas­sage of the Gov­ern­ment’s Spe­cial Op­er­a­tions Bill.

Ac­cord­ing to Mo­hammed, An­nisette-George’s cast­ing votes dealt strict­ly with pro­ce­dur­al mat­ters de­signed to al­low fur­ther de­bate or con­sid­er­a­tion of leg­is­la­tion back then. They nei­ther passed, de­feat­ed nor amend­ed any bills, leav­ing the sta­tus quo in­tact, he added yes­ter­day.

His com­ments came in re­sponse to con­sti­tu­tion­al ex­pert Pro­fes­sor Hamid Ghany’s analy­sis of the con­tro­ver­sy sur­round­ing Mark’s cast­ing vote, which broke a 15-15 dead­lock in the Sen­ate be­tween Gov­ern­ment sen­a­tors sup­port­ing the Spe­cial Op­er­a­tions Bill and Op­po­si­tion Peo­ple’s Na­tion­al Move­ment (PNM) and In­de­pen­dent sen­a­tors op­pos­ing it. Mark’s de­ci­sion has trig­gered de­bate be­cause of the long­stand­ing par­lia­men­tary con­ven­tion, in­her­it­ed from the British sys­tem, that pre­sid­ing of­fi­cers should use a cast­ing vote to pre­serve the sta­tus quo when votes are tied. No­tably, Mark him­self vot­ed to main­tain the sta­tus quo in 2025 dur­ing de­lib­er­a­tions on amend­ments to the Chil­dren’s Life Fund Bill.

While Ghany ar­gued that Mark was un­der no oblig­a­tion to cast his vote in any par­tic­u­lar way, he al­so con­tend­ed that the con­ven­tion had ef­fec­tive­ly been dis­placed in 2017 when An­nisette-George used her cast­ing vote on four oc­ca­sions, sid­ing with the then PNM gov­ern­ment and al­ter­ing pro­ce­dur­al out­comes.

Mo­hammed, an at­tor­ney, agreed on­ly in part.

“I agree with part of Pro­fes­sor Ghany’s analy­sis, but not with the con­clu­sion that the con­ven­tion ceased to have rel­e­vance in Trinidad and To­ba­go in 2017,” he said.

“The Con­sti­tu­tion re­quires the pre­sid­ing of­fi­cer to ex­er­cise a cast­ing vote where the votes are equal­ly di­vid­ed, but it does not state how that vote must be cast. The tra­di­tion­al par­lia­men­tary con­ven­tion there­fore re­mains im­por­tant in ex­plain­ing how that dis­cre­tion should or­di­nar­i­ly be ex­er­cised.”

Mo­hammed ar­gued that the four votes cit­ed by Ghany do not sup­port the claim that the con­ven­tion was aban­doned.

“The 2017 votes must be ex­am­ined in con­text,” he said. “They con­cerned ad­journ­ment, con­tin­u­a­tion of de­bate and con­sid­er­a­tion of amend­ments. They did not amount to a pre­sid­ing of­fi­cer us­ing a cast­ing vote to sup­ply the ma­jor­i­ty nec­es­sary to ef­fect sub­stan­tive leg­isla­tive change.”

Re­fer­ring to Par­lia­ment’s Hansard records, Mo­hammed out­lined the four in­stances:

March 15, 2017: In­dictable Of­fences (Pre-Tri­al Pro­ce­dure) Bill

The tied vote con­cerned whether de­bate on the bill should be ad­journed. An­nisette-George vot­ed in favour of ad­journ­ment, stat­ing she was re­quired to vote “in favour of the sta­tus quo.” As a re­sult, the bill re­mained be­fore the House for fur­ther con­sid­er­a­tion.

Ac­cord­ing to the Hansard record, she said: “There­fore, as Speak­er, I now do my cast­ing vote. I have to vote in favour of the sta­tus quo. We have done this be­fore and there­fore I vote yes. Yes.”

Sep­tem­ber 8, 2017: Bail Bill Amend­ments

A tied vote arose over whether de­bate on Sen­ate amend­ments to the Bail Bill should be ad­journed. An­nisette-George again vot­ed for ad­journ­ment, leav­ing the sub­stan­tive is­sue un­re­solved.

Sep­tem­ber 8, 2017: Crim­i­nal Pro­ce­dure (Plea Dis­cus­sion and Plea Agree­ment) Bill

The House was tied on whether Sen­ate amend­ments to the bill should be con­sid­ered. An­nisette-George vot­ed in favour of con­sid­er­a­tion, al­low­ing de­bate to con­tin­ue rather than ter­mi­nat­ing pro­ceed­ings on the mat­ter.

Sep­tem­ber 8, 2017: Ad­journ­ment of the House

The House split 17-17 on a mo­tion to ad­journ un­til the fol­low­ing week. An­nisette-George cast her vote in favour of ad­journ­ment.

Mo­hammed main­tained that none of these votes re­sult­ed in leg­is­la­tion be­ing en­act­ed, de­feat­ed or amend­ed.

“Those votes do not es­tab­lish any change in the prin­ci­ple his­tor­i­cal­ly fol­lowed by Trinidad and To­ba­go’s pre­sid­ing of­fi­cers,” he said. “Cer­tain­ly not to the ex­tent of sup­port­ing the propo­si­tion that a cast­ing vote may be used to cre­ate sub­stan­tive leg­isla­tive change where a gov­ern­ment fails to se­cure a ma­jor­i­ty.”

He added that Ghany’s in­ter­pre­ta­tion “ap­pears skewed,” ar­gu­ing that the 2017 prece­dents can­not be used to jus­ti­fy the use of a cast­ing vote to se­cure pas­sage of leg­is­la­tion that would oth­er­wise have failed to ob­tain ma­jor­i­ty sup­port.

Mo­hammed said Er­sk­ine May, wide­ly re­gard­ed as the au­thor­i­ta­tive guide to par­lia­men­tary pro­ce­dure, ac­knowl­edges that a pre­sid­ing of­fi­cer is not legal­ly bound to cast a de­cid­ing vote in a par­tic­u­lar way and may, strict­ly speak­ing, vote ac­cord­ing to con­science. How­ev­er, he not­ed that Er­sk­ine May im­me­di­ate­ly goes on to ex­plain that to pre­serve the Chair’s im­par­tial­i­ty, the es­tab­lished prac­tice is to ex­er­cise the cast­ing vote, where prac­ti­ca­ble, in a man­ner that pre­vents the de­ci­sion of the House from be­ing made fi­nal sole­ly by that vote.

Mo­hammed said Er­sk­ine May iden­ti­fies three long­stand­ing prin­ci­ples gov­ern­ing the cast­ing vote: to al­low fur­ther dis­cus­sion where pos­si­ble; where fur­ther dis­cus­sion is im­pos­si­ble, not to per­mit a sub­stan­tive de­ci­sion to be made with­out a ma­jor­i­ty; and, when de­cid­ing amend­ments, to pre­serve the ex­ist­ing text.

“So it is ac­cu­rate to say these prin­ci­ples are par­lia­men­tary con­ven­tions rather than ex­press con­sti­tu­tion­al di­rec­tions,” Mo­hammed said. “It is much more dif­fi­cult, how­ev­er, to de­rive from Er­sk­ine May the propo­si­tion that the pre­sid­ing of­fi­cer is sim­ply free to vote as he or she wish­es and that preser­va­tion of the sta­tus quo is no longer rel­e­vant. Er­sk­ine May ex­press­ly con­tin­ues to recog­nise and ex­plain those prin­ci­ples.”

He added that a pre­sid­ing of­fi­cer’s de­par­ture from con­ven­tion on a par­tic­u­lar oc­ca­sion does not nec­es­sar­i­ly ex­tin­guish a con­sti­tu­tion­al con­ven­tion, par­tic­u­lar­ly when lat­er pre­sid­ing of­fi­cers con­tin­ued to ap­ply it.

“That is es­pe­cial­ly so where pre­sid­ing of­fi­cers af­ter An­nisette-George, name­ly for­mer Sen­ate pres­i­dent Chris­tine Kan­ga­loo and Wade Mark in 2025, con­tin­ued ap­ply­ing the sta­tus quo prin­ci­ple,” Mo­hammed said.

He ar­gued that this record con­tra­dict­ed Mark’s more re­cent claim that there has been “no con­sis­tent prac­tice in Trinidad and To­ba­go” gov­ern­ing the ex­er­cise of the cast­ing vote.

“That his­to­ry sits un­easi­ly with Sen­ate Pres­i­dent Mark’s as­ser­tion,” Mo­hammed said.

“His con­duct in 2025 sug­gests oth­er­wise. He did not then treat the cast­ing vote as an en­tire­ly un­fet­tered dis­cre­tion. He iden­ti­fied the gov­ern­ing prin­ci­ple, name­ly preser­va­tion of the sta­tus quo, and ap­plied it re­peat­ed­ly.”

Re­it­er­at­ing Er­sk­ine May’s three guid­ing prin­ci­ples, Mo­hammed said: “Where a cast­ing vote is the vote that it­self pro­duces a fi­nal sub­stan­tive leg­isla­tive change de­spite there be­ing no ma­jor­i­ty among mem­bers vot­ing, that is dif­fi­cult to rec­on­cile with May’s sec­ond prin­ci­ple. That is quite dif­fer­ent from cast­ing a vote to ad­journ pro­ceed­ings or per­mit fur­ther con­sid­er­a­tion.”