Austin Bencini
When is a majority not a majority?
Unfortunately, the persisting controversy surrounding the Speaker’s use of the casting vote to defeat the Opposition’s no-confidence motion may undermine the political and institutional clarity which the Constitution intended to achieve in such a delicate and vital issue as a vote of no confidence in a government.
The vote of no confidence is a very special procedure that the Constitution uses to establish without a doubt Parliament’s decision to remove a democratically-elected government.
This assumes particular importance in Malta because, as from 1987, to avoid the repetition of the infamous “perverse result” at the 1981 election, when Labour governed for five whole years against the will of the majority, elections are not won by the number of seats elected from the 13 districts but by the No. 1 preferences of all of the candidates of a political party.
The Constitution in fact refers to the “absolute majority party” as the party that wins more than one half of all of the valid votes of first preference votes and which is assured to govern with the absolute majority of all the seats in the House.
The same applies to a party with the relative majority of all the No. 1 votes in a Parliament of only two parties. The present Gonzi government won the relative majority of all the No. 1 votes, albeit by a whisker, and the Constitution avoided another perverse result by adding four extra seats to give the Nationalist Party the majority in the House of Representatives.
Democratic legitimacy demands that the absolute majority of seats given by the electorate may only be removed by the absolute majority of all of the MPs having the right to vote on the motion. The Constitution, therefore, leaves nothing to accident in a vote of no confidence.
Firstly, the motion has to be specific to the issue of no confidence in the government. The motion is not mixed with any other issue, which may confuse or even dilute the clarity of the vote of no confidence.
Not only. The motion requires the support of “the majority of all the members of the House” and not simply the majority of the members of the House “present and voting”. Constitutional lawyers refer to them as either the absolute majority of all of the MPs or as the simple majority of those MPs present in the House and voting.
The use of the word “absolute” is not accidental. It is when the majority mathematically, “absolutely”, cannot be defeated, not even if all of the opposing MPs combined together to vote against the motion.
So, if all the MPs numbered 10, the absolute majority would be of six because the combination of the remaining four votes can never beat the majority of six votes. The verdict is decisive and final on reaching at least six votes in favour of the motion, since the remaining four votes may only add to that majority but never defeat it.
What if only four happen to be present and voting? There is not even the need to call for a vote because even if they all vote in favour they are nowhere near the magic number of six.
It should be clear, therefore, that any MP who abstains when an absolute majority is needed, as Franco Debono did, that abstention represents a deliberate obstacle in regard to those trying to win at least six out of the 10 votes.
This brings us to the Speaker’s casting vote. With 34 declaring no confidence and 34 declaring confidence in the government, there was no need for the Speaker to use the casting vote because the number required was of 35 in a House with 69MPs having the right to vote. In a formal vote of no confidence, the Speaker’s vote is not decisive be- cause a tie in votes certainly means that the absolute majority of all the MPs cannot possibly be reached.
Can there ever be a tie of 35 votes in favour with 35 against, when only 69 MPs have an original vote? According to my calculator, 35 or more remains the number that absolutely can never be overcome by the combined votes of all of the other 34 even if all present and voting.
On the other hand, any tie in the voting, starting from 34-34 and ending with 1-1, would all fall short of the absolute majority of 35. In reality and by definition, a draw means precisely the lack of any majority, be it simple, absolute or two-thirds!
An authoritative voice within the Labour parliamentary group, Owen Bonnici, has clearly stated that the Speaker had to declare the motion of no confidence not approved because the numbers required by the Constitution were missing. This clearly means that there was no draw.
That being the case, there seems to be a consensus in the making that the motion was defeated absolutely and that, if anything, the Speaker’s casting vote was more of a formality than the use of a decisive vote that, after all, is what the casting vote is all about.
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Carmel Serracino-inglott
Feb 5th, 13:17
May I ask therefore that such a motion to be approved MUST get 35 or more, otherwise it does not get approved whether there are , say, 30 against the motion ? Therefore , in our case, a motion may be passed only if 35 or more vote in favour. However if the motion is put forward by the goverment ' a vote of confidence and it does not get 35 then the speaker votes in favour for the magic number to be reached.?
To conclude there is no need for the speaker to have voted in a tie vote if the motion of no confidence is put for voting by the opposition? Again therefore this motion was put forward assuming that all the opposition MP PLUS others were going to vote in favour, right? But it did not happen so it was a waste of time created by the opposition for it cannot be sure that a member from the other side was going to support it. To be sure was for that member(s) to have crossed the floor BEFORE the vote by the opposition was put for voting, right?
Frank Portelli 2BFRANK
Feb 5th, 09:55
The Speaker is not free to use his casting vote any which way he likes.
The Speaker is bound to "keep the question open" for further debate ie he is bound to maintain the status quo so that the question can remain open for further debate.
This is known as "Speaker Denison's" rule and it has always been followed by the Speakers of Malta’s House of Representatives.
Dr Frank Portelli
Paul Caruana
Feb 4th, 22:02
So long as the government does not lose a vote of confidence, or a "money" vote, the government has a formal majority, and as such has full powers. This irrespective of whether it has a comfortable majority in parliament, or is simply hanging in there to dear life by the skin of its teeth!
Mr ALBERT LEONE GANADO
Feb 4th, 17:53
@Austin Bencini ,Frank portelli
I still think Austin is completely right for once there is a specific provision for confidence votes this over-rides any other sections of the constitution . This has to be so for otherwise we could in theory create a constitutional crisis. For let us assume that there was an independent minded speaker who decided to vote with the opposition to turn the result into a majority for the motion. We would then come to a perverted situation where the confidence vote would not pass because of the specific constitutional provision for confidence votes and yet the majority would have voted for it.
Frank Portelli 2BFRANK
Feb 5th, 09:57
Albert
The Speaker is not free to use his casting vote any which way he likes.
The Speaker is bound to "keep the question open" for further debate ie he is bound to maintain the status quo so that the question can remain open for further debate.
This is known as "Speaker Denison's" rule and it has always been followed by the Speakers of Malta’s House of Representatives.
regards
Frank
Lawrence Fenech
Feb 4th, 16:55
When the magority is one person who thinks that all Malta is behind his absurd ideas.
Marco Galea
Feb 4th, 18:17
Right ... Joseph Muscat who thinks that everyone believes his bla bla instability bla bla when Malta keeps reducing unemployment and gaining tourism records
Lawrence Fenech
Feb 4th, 23:10
@Galea.
Try to convince the Dockyard, AirMalta, SeaMalta, and the factories that have closed down under this GonziPN with 1,000,000 plus 6,000 Euros in their pockets.
Victor Laiviera
Feb 4th, 14:17
The above would hold true - in a legalistic way - if the occasion was a on-off vote.
But there seems to be no sign that Franco Debono is reconciled with the PN in any meaningful way and that he will back the Government regularly and consistently in future?
Is Dr Bencin suggesting that we can go on for some 18 months, with Parliament limping along, meeting only when Dr Gonzi has all his members around him, and saved by the Speaker at every turn?.
I sincerely hope not - not if we want out institutions to retain such respect a they may still enjoy
Victor Laiviera
Feb 4th, 15:18
First sentence should read "one-off" vote. Excuse typo.
Andre Cilia
Feb 4th, 17:03
What you don't understand is that Franco Debono, albeit being sceptical about Dr. Gonzi and Co., he most probably is in favour of most if the policies being put into place. Otherwise he would have voted against ratehr than abstained.
In other words, shut up, the vote has been lost, there will be no election
Victor Laiviera
Feb 4th, 17:38
@ Andre Cilia
Your debating skills are truly extraordinary. Did you take a course?
Paul Giordimaina
Feb 5th, 05:10
Tell your leader for pairing if you dont want this situation and apply Malta l ewwel u qabel kollox.
Victor Laiviera
Feb 5th, 16:35
@ Paul Giordmaina
Pairing is meant to compensate for Ministers and/or Government MPs who are away on official business.
It is NOT meant to make up for disgruntled Gov back-benchers who decide to stop supporting the Government.
Victor Zammit
Feb 4th, 14:11
@ Frank Portelli 2BFRANK
I beg to differ too, but with you.
Standing Orders 21 (2) which you reproduce and which states that "The Speaker shall not have an original vote, but, if upon any question before the House the votes are equally divided, he shall have and exercise a casting vote” is a repetiton of Article 71 (2) of the Constitution which states that “The Speaker shall not vote unless on any question the votes are equally divided, in which case he shall have and exercise a casting vote.”
But that is not only.
Article 62 (2) says that “If any person who is not a member of the House of Representatives is elected to be Speaker of the House he shall, by virtue of holding the office of Speaker, be a member of the House in addition to the other members. Provided that in any such case the Speaker shall not be treated as a member of the House for the purpose of establishing the number of votes required to support a bill for any of the purposes of article 66 of this Constitution.”
Now Article 66 (1) says that “Parliament may alter any of the provisions of this Constitution ... in so far as it alters....article 76 (other than sub-article (2) of this Constitution.”
In turn Article 76 (5) (a) says that if the House of Representatives passes a resolution, supported by the votes of a majority of all the members thereof, that it has no confidence in the Government, and the Prime Minister does not within three days either resign from his office or advise a dissolution, the President may dissolve Parliament.”
Clearer than that....
Frank Portelli 2BFRANK
Feb 5th, 10:02
The resolution ( no confidence vote) was not passed by the house - since there was not a majority supporting the motion !
Frank Portelli
Victor Zammit
Feb 5th, 11:28
@ Frank Portelli
No question about that.
Where you begged to differ from Dr Bencini was “With 34 declaring no confidence and 34 declaring confidence in the government, there was no need for the Speaker to use the casting vote”.
In your view “if the votes are equal on any question before the house the Speaker shall have and exercise a casting vote”.
That view is not borne out by the Constitution for the reasons stated
John Zammit
Feb 4th, 13:04
I am not a lawyer nor a constitutional expert by I pretend that Dr. Bencini mentions the fact that the 1996 result was also perverse as labour with over 8,000 Votes only elected 31 members while the PN got 34 It is also to be noted that the 1971 election were run under the full gerrymandering with some district having 6 sears instead of 5.It could also be noted that the PN never wanted to accept the result so much so that two persons were sent to prison for trying to buy the Gozitan Mr K.Attard
Robert Henry Bugeja
Feb 4th, 12:59
If you quote the constitution Dr.Bencini, then let's be fair as well and state clearly that Constitutionally The Labour Gov. of 1981 was right to Govern, because that is what the Constituation said back then (majority of seats to govern).
Perhaps the Labour motion didnt garner the majority of votes needed to pass but what it did show was clearly that this government has lost his majority in parliament.
William Flynn
Feb 4th, 12:25
Austin Bencini makes a powerful argument. But a tie is neither a win nor a loss. That is why any self respecting leader should go back to the people if the parliament cannot resolve the confidence question.
The PM going back to his own party machine for confirmation is meaningless and only serves to discredit Debono who, after his pusillanimous retreat from his threat to vote against, needs no help in his own loss of accreditation with both sides of the house, the institution of parliament per se and the people.
The only way out of this without an election is the removal of Lawrence Gonzi.
If they don't, they would be only procrastinating the inevitable after the looming drubbing if they go to the polls with Lawrence Gonzi and his Junta intact.
j brincat
Feb 4th, 12:19
@John Schembri
"The voters who voted for Franco wanted the PN to govern for five years , if Franco does not vote in favour of his voters’ wishes it will be considered as a betrayal"
Holds true only as long as the incumbent government has the majority of the seats in Parliament. When numbers no longer add up then the government has lost the mandate to rule.
Be careful what to say as the PN (after all the hate and ridicule that PN sympathisers bestowed on Franco) are now trying to mollycoddling him!
(jb)
Paul Giordimaina
Feb 5th, 05:17
keep on stirring and bend the truet you may convince someone.
Mr Andrew Camilleri
Feb 4th, 12:06
So what Dr. Bencini is saying is that had Dr. Gonzi presented the motion of confidence in the Govt, and Dr. Debono abstained (as he certainly would have), then the vote would have been lost as the motion would not have had the required 35 votes. So basically you are confirming that the Govt does not have a majoriyy in the House because Dr. Gonzi does not have 35 MPs to support him. As you say, the Speaker's vote in such a case was a mere formality. S omehow I doubt that if Dr. Gonzi had presented a motion of confidence and he obtained only 34 votes, Dr. Bencini would reason the same way. I have a feeling that you will say it all depends on whether it is a motion of conficence or non confidence.
Ivan Grech Mintoff
Feb 4th, 11:52
Looking at it legalistically, one cannot but agree with your thesis.
As you state, the constitution is very clear on the vote taken..
But, if you apply 'logic only' to this result, then surely you must also apply 'logic only' to the electoral result in 1981.
The constitution was equally clear at the time, too: Labour was perfectly correct to go on and govern for 5 years thereafter and by no means can you call it " the infamous “perverse result” at the 1981 election".
Either you apply 'logic only' and interpret both using what is written in the constitution (with equal measure) or else if 1981 was "perverse" then surely you have to also interpret the voting last week as GonziPN not having the absolute majority (34 votes is not equal to 35 votes on my calculator) too.
Can you say that with 34 votes against the motion then GonziPN enjoys an absolute majority?
You cannot apply the constitution to one and not the other. And therein lies your quandrum....
Tommy Vella
Feb 4th, 15:38
Oxford dictionary: Perverse, turned away from what is right.
Whatever you say the spirit of the constitution with regard to elections is that the party with the majority of votes gets to govern. What happened in 1981, even though it was legal and constitutional was STILL perverse, turned away from what the constitution really required, that the government should reflect the majority. Joseph Muscat himself admitted as much in his speech in parliament.
The two situations; 1981,a government elected against the spirit of the constitution due to a flaw and 2012, a vote of no-confidence which did not garner a majority in Parrliament, are totally different and cannot be compared.
"Can you say that with 34 votes against the motion then GonziPN enjoys an absolute majority?"
Allow me a little play on your sentence;
Can you say that with 34 votes for the motion then PL in parliament managed to get a result of no confidence?
Ivan Grech Mintoff
Feb 4th, 18:55
@TV
I'm not saying that 1981 wasn't perverse. I am arguing that:
- if you apply the definition as per the constitution then neither is perverse and both are perfectly legitimate.
- if you apply common sense then both are perverse.
- you cannot apply the law to one and not the other (especially in view that there were previous elections where PN did not less no.1 votes than MLP and was quite happy to go on and govern without batting an eyelid!)
>Can you say that with 34 votes for the motion then PL in parliament managed to get a result of no confidence?
Absolutely not. That is clear. But doesn't that mean that WITH THE SAME NUMBER OF VOTES then GonziPN does not have an ABSOLUTE (not relative) majority...?
Tommy Vella
Feb 5th, 08:41
@Ivan Grech Mintoff
I do not agree with you.
I still maintain that even constitutionally it was not perverse according to the letter but IT WAS perverse according to the spirit. You cannot maintain the same thing for the vote of no confidence.
I said: “The two situations; 1981,a government elected against the spirit of the constitution due to a flaw and 2012, a vote of no-confidence which did not garner a majority in Parliament, are totally different and cannot be compared.”
1. In an election there is no status quo, a fresh mandate HAS to be given one way or another. In a vote of no confidence there is a status quo, the confidence given to the government originally. A no confidence vote is arbitrary it MAY be proposed, it also MAY NOT be proposed, this is a decision at the behest of the opposition. If it proposes it, it should gather a majority of votes for it to be carried. If it is not carried, the status quo prevails.
2. In 1981 the result was a win for one side which should have been given to the other. I think that now all sides agree on that point. To-day the result of the vote was no win and no loss, a draw. A draw which the constitution itself caters for.
I do not know whether you are into football. Saying the result of 1981 was not perverse is like saying that if the 2010 World Cup was handed over to the Netherlands (after losing 0-1 to Spain) there was nothing wrong. Saying the result of the vote of no confidence is perverse is tantamount to saying that Brazil should not have been awarded the 1998 World Cup because they only managed a draw 0-0 against Italy, while putting aside the consideration that they had then beaten them on penalties.
The main reason that my argument is very strong is the fact that while the 1981 result was seen as so perverse that both main parties agreed that it should not be repeated and worked out a mechanism to prevent its repetition, to-day I do not hear any one, even the PL themselves, clamouring for a change in the Honourable Speaker’s casting vote.
Tommy Vella
Feb 5th, 10:27
@ Mr Ivan Grech Mintoff
Please refer to my posting placed, througha mistake of mine, under Frank Portelli 2BFRANK's contribution.
Frank Portelli 2BFRANK
Feb 4th, 11:25
Dr Bencini writes
“ With 34 declaring no confidence and 34 declaring confidence in the government, there was no need for the Speaker to use the casting vote”
I beg to differ
Standing Orders 21 (2) states that "The Speaker shall not have an original vote, but, if upon any question before the House the votes are equally divided, he shall have and exercise a casting vote.
Supported further by the Constitution of Malta section 71 (2) The Speaker shall not vote unless on any question the votes are equally divided, in which case he shall have and exercise a casting vote.
Bot sections state clearly that if the votes are equal on any question before the house the Speaker shall have and exercise a casting vote.
Dr Frank Portelli
Mr l. theuma
Feb 4th, 13:45
It is emanated from Dr. Bencini's thesis that "both sections state cleary that if the votes are equal on any question before the house" concern only questions arising to legislature and not a vote of confidence in government to indicate weather the majority of the house suports the government or not. . 34 against 34, where does the majority stand? The speaker had no way out than to declare that there is no majority. sic
Tommy Vella
Feb 5th, 08:47
@ Ivan Grech Mintoff.
Pardon me but I did not get "you cannot apply the law to one and not the other (especially in view that there were previous elections where PN did not less no.1 votes than MLP and was quite happy to go on and govern without batting an eyelid!)".
Maybe I'm a little bit too dense.
j brincat
Feb 4th, 11:21
What has happened to the theory we have a coalition government i.e. the NP MPs and Mr Speaker?
Also, if it was not needed, why did Mr Speaker cast his vote? Just for fun?
You emphasise that the motion was defeated but there in no emphasis at all that the Government no longer has its ONE seat majority over the Opposition. No beating about the bush can deny this!
Things may change of course, but as things stand today the Government's face can only be saved by Mr Speaker. Is this the way to rule a country?
(jb)
Tommy Vella
Feb 4th, 13:15
It was for a number of months in 1998!
Paul Giordimaina
Feb 5th, 05:27
How would you know that Franco is going to keep abstaining he made his stand and wel get the majority again and you have to keek your mouth shut.
John Schembri
Feb 4th, 11:03
The PL has ended up arguing about seat majority , even though Joseph Muscat said that the 1981 result was illegitimate.
The legitimacy of a party to govern lies on the amount of No 1 votes that party gets , parliamentary seats are of secondary importance.
The voters who voted for Franco wanted the PN to govern for five years , if Franco does not vote in favour of his voters’ wishes it will be considered as a betrayal.
A.M. Galea
Feb 4th, 13:46
Sur Schembri , int bis-serjeta' qed tghid li is-siggijiet parlamentari huma ta' importanza sekondarja ghax il-legittimita' li partit jiggverna tigi min kemm ikun gab voti Nr1 fl-elezzjoni ta' qabel ? Tghid inti kont tirraguna hekk fl' 1996 , meta kien hemm il-partit laburista fil gvern u li minkejja li kellu maggoranza ta' aktar minn 13,000 vot kellu maggoranza ta' siggu wiehed ? Anke dak inhar , il-votanti kienu ivvutaw biex il-partit laburista jiggverna ghall hames snin , izda kulhadd jaf x'gara . Dakinhar hadd ma kien qal li la kellu il-mandat tal-poplu ghall hames snin , kellu jibqa jiggverna . Mela skont int , il-gvern li jkun jista jserrah rasu li jaghmel x'jaghmel hadd ma jkun jista jwaqqghu u jkun jista jibqa jirrombla min fuq kulhadd kemm irid . Kemm taf tirraguna Sur Schembri .
Mr ALBERT LEONE GANADO
Feb 4th, 10:51
AB, I fully agree with your thesis that with a 34-34 vote the motion of noconfidence was defeated. But this begs the question of why did the speaker cast a so called "casting vote". By the accepted executive and judicial definition the casting vote is:
"A casting vote is a vote given to the presiding officer of a council or legislative body to RESOLVE A DEADLOCK and which can be EXERCISED ONLY when such a deadlock exists." As there was no deadlock to resolve one deduces that either the speaker is ignorant of the meaning of a casting vote or there it was used as a political underpin to government to reaffirm and drum into the ordinary citizen that the government won the vote. This was a wrong decision and the speaker is obliged for the sake of constitutional correctness to admit his mistake and rescind his casting vote..