After 47 years of membership of the European Union (EU), Brexit has become a reality. Triggered by a referendum held in June 2016 at which 51.9 percent of UK citizens voted in favour of leaving the EU, the UK formally withdrew from the Union last Friday. There will, however, be a transitional period from 1 February to 31 December 2020 to allow for a new UK-EU relationship to be developed. The EU allows free trade in goods, services and capital as well as free movement of people to live and work in any country within the EU. According to the Withdrawal Agreement, if a new trade deal is not finalized by the end of the year, the UK can request an extension of between 12 to 24 months by July 2020. Such an extension has to be approved by the European Council. However, this is unlikely to take place by virtue of legislation passed to rule it out as well as the reluctance of the Prime Minister to go this route.
A key issue relates to how to deal with the absence of a physical border along the 499-kilometre stretch between the Irish Republic and Northern Ireland. The latter is part of the UK while the former is a member of the EU. The UK will also no longer benefit from the various EU treaties entered into with other countries. Friday’s formal withdrawal was greeted with mixed feelings, with candlelit vigils in Scotland and celebrations in London. The UK is the first member to withdraw from the Union that now comprises 27 European countries.
In the introduction to last week’s article, we referred to the President’s statement that constitutional reform would be a priority if the APNU+AFC coalition wins the forthcoming elections and that one of the issues to be dealt with relates to the provision for a vote of no confidence in the Government. We had expressed the view that if an elected government fails to honour its obligations at any time during its tenure of office, citizens have the right to remove that government from office. They invariably do so through their elected representatives in the legislature via a vote of no confidence in the government. It follows that a provision for a vote of no confidence, or any variant thereof, is indispensable to any system of democratic governance.
Today’s article provides some elaboration on the issue.
Brief historic perspective
Under the Westminster system of government, there are two types of vote of no confidence. The first is when the party leader in government has lost the support of the Legislature in which case that leader is forced to resign. The other is a parliamentary vote of no confidence which signifies that the government has lost the support of the majority of MPs in the House. It is based on the tabling of a motion of no confidence in the government.
The first vote of no confidence can be traced back to the year 1742 when Sir Robert Walpole, the first de facto British Prime Minister, resigned because the House lost confidence in him. However, the first time a government was defeated on a vote of confidence was in 1782 that triggered the resignation of the government of Lord North. Since then, the no confidence vote became a regular feature, especially in the 19th century, but was less often used in later years.
During the World War II, Prime Minister Neville Chamberlain resigned because of a substantial reduction of support for him in the House. He was replaced by Sir Winston Churchill. However, the last vote of no confidence that led to general elections was in 1979 when the Labour government lost the vote over Scottish devolution, ushering a new era of British politics under Margaret Thatcher. In July 2019, Prime Minister Theresa May resigned because of her inability to gain the support of the House for her Brexit proposals. She was replaced by the current Prime Minister Boris Johnson.
The UK experience
A motion of no confidence is one that is tabled in the House of Commons by any member, indicating that the government has lost the confidence of the members of the House. If approved by a majority of MPs, this signals that the government is no longer able to function effectively. According to Prof. Richard Toye of the University of Exeter, ‘[i]f the government has lost its majority or does not have a reliable majority, that is the cue for either the government to fall and be replaced, or for a general election to be called. Retaining the confidence of the House of Commons is a core principle of the UK constitution.’
After a no confidence vote is approved, a new government with the support of the majority of MPs has to be formed within 14 days, failing which Parliament has to be dissolved and general elections called on the 25th working day of the dissolution of Parliament.
The Canadian experience
There is the concept of responsible government which means that the government has responsibility not only to its citizens but also to their elected representatives in the Legislature, including the Opposition. Any MP can table a motion of no confidence in the government. If the motion is approved by the majority of MPs, the government loses its democratic right to remain in office, and must resign and call an emergency election. Canada Guide (https://thecanadaguide.com/government/parliament/) explains as follows:
There does not have to be a significant scandal or controversy to justify launching a no confidence vote against a sitting government; it’s largely a strategic decision made by opposition parties to force an election at a time when they believe their chances of getting elected are highest. Indeed, whenever a minority government is elected, it essentially becomes a question of “when, not if” the opposition parties will choose to vote the government down. Most minority governments don’t last longer than two years.
The last successful vote of no confidence was in 2011 when Prime Minister Stephen Harper’s government was accused of contempt of Parliament as a result of its failure to disclose the full financial details relating to tougher crime legislation, corporate tax cuts and plans to purchase stealth fighter jets. This triggered the dissolution of Parliament and the holding of fresh elections. There were five other successful votes of no confidence in the Government of Canada in earlier years: Paul Martin – 2005; Joe Clark – 1979; Pierre Trudeau – 1974; John Diefenbaker – 1963; and Arthur Meighen – 1926.
Australian experience
In Australia, a successful motion of no confidence requires a majority of the members present in the House of Representatives which consists of 151 members. When all the MPs are present, a total of 76 votes are needed for the motion to pass. There were eight occasions when the government resigned following a vote of no confidence, the last time being 1941 when the House rejected the minority government’s budget.
Indian and Pakistani experience
In India, the largest democracy in the world, the government vacates office on a vote of no confidence of the majority elected members of the Lok Sabha. A total of 50 MPs are required for the motion to be tabled. The last successful vote of no confidence was in 1999 against the government of Atal Bihari Vajpayee, the third of its kind, the others being against H. D. Deve Gowda (1997) and Vishwanath Pratap Singh (1990).
In July 2018, the motion for a vote of no confidence was tabled against Narendra Modi’s government because of mob violence and high profile rape cases. The Prime Minister was reported to have stated that it was ‘important day in our Parliamentary democracy…I am sure my fellow MP colleagues will rise to the occasion and ensure a constructive, comprehensive and disruption free debate. We owe this to the people and the makers of our Constitution.’ The government survived the vote by virtue of its significant majority in the Lok Sabha.
In Pakistan, a motion for a vote of no confidence must be supported by at least 20 percent of MPs. Once put to the vote, the motion succeeds if it is approved by a majority of MPs.
Guyana’s experience
Article 106(6) of the Guyana Constitution states that ‘[t]he Cabinet including the President shall resign if the Government is defeated by a vote of a majority of all elected members of the National Assembly on a vote of confidence’. However, by Article 106(7), the government is to remain in office and elections held within three months of the vote of no confidence or such later date as the Assembly determines via the votes of at least two-thirds of all the elected MPs.
On 8 August 2014, a motion of no confidence was tabled against the minority government of Donald Ramotar by Opposition MP Moses Nagamootoo on behalf of the AFC. However, before the motion could been debated and voted on, the President prorogued Parliament, then dissolved it four months later. This paved the way for fresh elections in May 2015 which saw a change in government.
On 18 November 2018, Opposition Leader Bharrat Jagdeo tabled a motion of no confidence in the Granger-led Administration. At the conclusion of the debate on the notion, a vote was taken on 21 December 2018 at which 33 MPs voted in favour of the motion in the 65-member Assembly. Accordingly, the Speaker ruled that the vote was carried. Dissatisfied with the outcome, especially since one of its ranks teamed up with the Opposition to support to support the motion, the Government moved to the courts to challenge the Speaker’s ruling. The matter went all the way to the CCJ which held that the vote was validly passed. It, however, took a year after the vote for Parliament to be dissolved and for the date of 2 March 2020 to be proclaimed as the date for elections.
Amending the Guyana Constitution relating to Articles 106(6) and 106(7)
By Article 164, the provisions of the Guyana Constitution can be amended in three ways, that is, by way of a referendum; by the votes of at least two-thirds of all elected members of the Assembly; and by a majority of all elected members of the Assembly. Since Article 106 has not been specifically mentioned in the first two categories, we presume that it can be amended by a majority of all elected members.
It is, however, not clear what the President has in mind when he made the statement that ‘the nonsense they tried with us over the last 12 months does not happen again’. One hopes that he is not considering deleting the constitutional provision relating to the no confidence vote or upping the threshold to, say, two-thirds of the votes of all elected members. Any such action would not conform to democratic norms and values, as outlined in this article in relation to the experiences of other countries embracing the Westminster system of government.
Conclusion
While we support constitutional review in order to enhance our governance arrangement, we must guard against any attempt to tamper with the provisions of Articles 106(6) and 106(7). These provisions are essential for holding the government to account and are indispensable to any form of democratic governance. In our article of 8 April 2019, we had made some suggestions for constitutional review which we believe are worthy of repeating:
Conduct separate elections for the Executive and Legislative branches of government;
End ‘winner takes all’ practice and provide for the formation of a government of national unity based on the political parties’ standing in the polls, including provision for civil society participation;
Provide for effective separation of powers between the Executive Branch of Government and the Legislative Branch, in recognition of the principle that the latter makes laws while the former executes them in accordance with the wishes of the latter.
Prohibit Ministers of the Government from being part of the Legislative Branch of Government in keeping with the principle of separation of powers;
Subject Ministers’ appointment as well as those of senior public officials to ratification by the Legislature;
Elect Members of Parliament on a constituency basis, so that each Member is accountable directly to his or her constituency and not to the political parties to which they may belong;
Provide for independent persons to also contest national and regional elections as well as for membership of the Legislature;
Allow MPs to vote on issues on the basis of conscience rather than on party lines where they consider it necessary to so do;
Provide for the membership of GECOM to comprise persons who are genuinely independent of, or not associated with, the political parties contesting the elections; and
Remove immunity of the President and make him accountable to the Legislature and to the courts for his or her actions as well as all decisions taken.
