After much back and forth, the long-awaited Martinus Francois versus Andy Daniel trial was held on Tuesday March 30, 2021. Centered on the failure of the House of Assembly to elect a Deputy Speaker, the case was filed in 2019. Shortly after 9:00 a.m. the parties to the matter began entering the high court’s virtual waiting room via Zoom. Present were presiding judge Justice Rohan Phillip, claimant Martinus Francois, House Speaker Andy Daniel and defense attorneys Dexter Theodore QC and Seryozha Cenac.
Wasting no time after procedural matters were dealt with, Francois requested to cross-examine Daniel. Theodore asked for and was granted a private minute with the Speaker. The trial resumed shortly after 10:00 am. Daniel, his right arm raised, was sworn in as a witness.
In response to a series of questions, Daniel testified that since he became Speaker he has called on the House to elect his deputy during numerous sittings—most recently on April 29, 2020. In addition Daniel indicated that he has had many informal discussions with members of parliament on both sides, enquiring as to whether they were ready for the election. Daniel told the court that during his tenure there have been times when he was off-island, but this had not affected his duties since his travels were always in his capacity as Speaker.
“Has there ever been a need to have somebody deputize in your absence?” Francois asked.
“No sir,” Daniel responded.
“What if something were to happen to you?” Francois asked.
“That’s for the House to answer, sir,” said Daniel.
Theodore interjected at that point, charging that this question was too hypothetical and therefore improper. Francois had no more questions and the defense declined to re-examine.
Francois then began his submissions. The nearly 3-hour presentation was bedeviled by internet issues, with the attorney losing connection on several occasions. He commenced by noting that March 30, 2021 marked three years and ten days since Daniel was appointed Speaker. He lamented that the House had proceeded without a deputy since July 25, 2016—in his view in breach of section 36.1 of Saint Lucia’s Constitution, that reads in part: “If the office of Deputy Speaker falls vacant at any time before the next dissolution of Parliament, the House shall, as soon as convenient, elect another member of the House to that office.”
In citing a case from Dominica, Francois stated that the court has a duty to act when any authority acts in non-conformity with any of the laws derived under the Constitution. He explained that section 36.1 has two legs and entails a mandatory provision which cannot be ignored. The first refers to electing a Deputy Speaker after a general election, and the second when a vacancy has arisen. The latter is the current scenario. To explain the “mandatory provision” he relied on section 17 of Saint Lucia’s Interpretation Act—which states in part that where an enactment confers a power or imposes a duty, “the power may be exercised and the duty shall be performed.”
“The House shall elect,” Francois stressed. “It doesn’t say the House may elect. Shall speaks for itself. Any law student knows the legal meaning of the word shall, or they would never pass their law exams!” He further noted that the second leg of section 36.1 does not prescribe any time period but merely states “as soon as convenient.”
Therefore, he told the court, section 36.10 of the Interpretation Act must apply. It reads in part: “An enactment . . . authorising the doing of anything but not prescribing or limiting the period within which that thing is to or may be done, shall be construed as . . . authorising that thing to be done with all convenient speed and not otherwise.” By no stretch of the imagination can three years and ten days be considered convenient speed, Francois declared.
The attorney referenced Sir John Compton, Sir Allan Louisy and Dr. Kenny Anthony whom he said were “Saint Lucia’s Founding Fathers.” He stressed that all had Deputy Speakers during their tenures, even when Sir John held only a 9-8 majority in 1987. He also reminded the court of the August 29, 2011 resignation of Marcus Nicholas as Deputy Speaker, and the post-resignation sitting on September 13, 2011, when then Speaker Rosemary Husbands- Mathurin came under pressure from the Anthony-led Opposition.
Francois had high praise for Husbands-Mauthurin for her handling of the situation. A Speaker, he says, does not have to beg MPs or talk to them informally but must simply apply the law. The attorney speculated that if the election was not included on the Order Paper of the next sitting, Husbands-Mathurin would have adjourned the House. As it turned out, Francois said, then prime minister Stephenson King dissolved Parliament shortly thereafter—saving the need for a Deputy Speaker to be elected.
Francois said: “The claimant is asking this court to return the House of Parliament to the status quo before this aberration.” He noted that he was not asking for laws to be repealed. Instead, he asked the court to remedy the situation by declaring the situation unconstitutional. “The Constitution cannot defend itself,” the attorney stressed, “the Constitution is merely a piece of paper. It can be trampled on by men. It takes people of courage to defend it, it will not defend itself.”
“The court is the guardian of the Constitution,” he added. “If the court doesn’t do it, nobody else will… The Constitution is the living embodiment of the rule of law… I’m asking this court to construe the meaning of section 36.1 and make a declaration of unconstitutionality.”
The trial then adjourned for lunch. When it resumed around 2:15 p.m. the defense’s main argument was that this matter was non-justiciable. Lead defense attorney Dexter Theodore began his presentation by citing section 35. 3 of the Constitution: “No business shall be transacted in the House, other than the election of a Speaker, at any time when the office of Speaker is vacant.”
He told Justice Phillip that section 35.3 spells out a “consequence” whereas section 36.1 does not. He explained that an impasse had occurred: all government MPs are ministers and therefore cannot be appointed Deputy Speaker. At the same time, members on the opposite side have maintained that there exists a “constitutional convention” that members of the opposition are not to serve in the position. “This is a proceeding in Parliament which is non-justiciable,” Theodore declared. “The court cannot inquire into it. It is for Parliament to regulate that procedure . . . It is our respectful submission that until there is a change in that factual matrix [impasse] it is not convenient to elect a Deputy Speaker.”
He said “shall” does not always mean that a thing is mandatory and could not be construed without reference to its context. Relying on Standing Order 3 and section 36.1, he stressed that there are three considerations for the election: the individual cannot be a Cabinet member or a Parliamentary Secretary, and they must also be willing to serve. He asked: “So where does that leave us?”
Theodore explained that while the Constitution says the House ‘shall’ elect a Deputy Speaker, it also imposes conditions that make such an election impossible at this time. Therefore, it would be “farcical” for the court to construe this provision as a mandatory one. He declared that “reasonable time” is dependent on the circumstances of a particular case. “So it’s not whether there are three years and ten days, but whether in the circumstances of the case, it has ever been convenient for the House to elect a Deputy Speaker.”
The attorney said that it is not unlawful conduct for MPs to express an unwillingness to serve in the position. Three things protect that right: the Constitution, Standing Orders and the principles of democracy. Said Theodore: “It would appear something needs to be done about the impasse but that something certainly is not up to this honourable court.”
To force an election, Theodore said, would simply be “undemocratic and therefore unconstitutional.” He asserted that no member of the House is under a constitutional obligation to make, accept or second a nomination. “It is our respectful submission that it would be wrong for this honourable court to attempt to make an order along the lines being suggested by the claimant.”
In his closing remarks, Theodore stated that despite the non-election the constitutional function of parliament has not been hindered in any way. Further, that it has not resulted in any accountability issues, and many pieces of legislation have been enacted despite the circumstances. Until such time an MP is willing to serve, said Theodore, it will not be convenient to elect a Deputy Speaker.
At the conclusion of the trial, Justice Phillip announced: “The decision of the court is reserved to a date to be notified by the court office. The court certainly needs time to consider all that has been placed before it.”
At the time of publication the parties were still awaiting the judge’s decision.
This article first appeared in the April 2021 edition of the STAR Monthly Review. Be sure to get your printed copy on newsstands or view it here: https://issuu.com/starbusinessweek/docs/star_monthly_review_-_april_30_2021
