Parliamentary Vote - New Method of Voting
This week we address the manufactured angst over the new method of voting to record a majority or minority vote in Parliament.
Some members of Parliament are discussing this issue to make noise about the matter as if they were not in the House to know what happened or how the change came about. Emphasis on ‘ noise’ to cover the lack of policy discussion and depth.
It will be interesting though to read the Hansard about when the decision was made to change the method of voting in Parliament, who made the decision, how it was made, if the business committee was involved or if the whole House was involved, was the Opposition present when the decision was made, did they object at the time as the rules require and were they awake to the issues when the issues were discussed.
Before the recent change, votes of MPs were recorded in high tech with members pressing buttons which accurately recorded their votes for, against or abstain. In practice, political party rooms have already discussed with caucus how they will all vote on things with which they have prior notice.
With the things they don’t have prior notice, there is a quick glance around to colleagues to ask which way they are voting together as a party or as government and Opposition.
It was not an individual vote. It was a party vote unless given the freedom by the party to vote as one wishes, a conscience vote.
New change
With the recent change - members vote by acclamation only ‘aye’ or ‘nay’ in the House like the old parliaments. In Australia, acclamation is still used but after the Speaker hears one side over the other, he or she usually asks ‘Is a division required?’ If they hear any ‘aye’ they then call for a roll call of all MPs present so that individual votes are lodged and recorded.
We will see below that Australia is different because they have a different electoral system with members being elected by individual constituencies and votes for individual members being tallied to determine whether or not they go to Parliament.
Not the case in Fiji.
The current Fijian electoral system is for a political party and so party votes are counted and party votes send members to Parliament.
Explainer: 2013 Constitution
On the law, let’s begin from the highest law of the land (2013 Constitution) because all other laws have to comply with this one.
If any other law is found by the High Court (or higher) to be inconsistent with the constitution, the inconsistency will be struck down. The inferior law dies. The Constitution endures Section 69 (1) of the constitution sets out how the Parliament must vote:
“69.—(1) Except as otherwise provided in this Constitution, any question proposed for decision in Parliament must be determined by a majority vote of the members present and voting.”
Note that the first few words of that section confirms the law as I have set out- that it is only another part of the constitution that can affect the constitution, no other law can. As every other law is inferior.
To the meat of that section, it basically says that unless there is something else in the Constitution that says something differentany decision put to the Parliament must be decided by the majority of the members of Parliament who are present and voting on that decision.
Right away we will want to ask, so who made the decision to change the method of voting from pressing buttons to record individual votes to acclamation? Was the question put to the House? If so, we all know what the numbers in the House are. If the Government wanted the change, their majority numbers would carry the motion to change the method of voting or recording the majority in the House.
If the question was not put to the House, was it decided by the business committee? In my two years in Parliament, the business committee usually had the Speaker, Prime Minister, Leader of Opposition, AttorneyGeneral, Leader of NFP, two Ministers, SODELPA whip and myself as members. Equal numbers from the Government and Opposition. We could send alternate members if we are unavailable. This committee decided how business in the House was to proceed prior to a sitting.
As one can imagine, it is not the easiest of committees. It is where the combatants meet (sometimes mid-sitting) in a small room (much smaller than the House), across the table from each other with the Speaker in the middle as chair and referee- so that all sides of the House come to compromises or as close as possible to the middle ground. As all parliamentary committees do.
It required a lot of give and take, tact and diplomacy as only Fijians can with our infamous compartmentalisation.
I am pleased to say that in the two years there, I never found one so difficult as to not have felt that we won more than we lost in any meeting.
Aiming always of course to win the more important issues and giving way on the less important ones to us at the time.
Having read the rules over and over of course to be assured that what is knocked out of the business committee can still be addressed by the House. Within the rules.
And the rules of Parliament (standing orders) also have a foundation in the Constitution at section 71.
I have set all that out to show what room there is for the Opposition to influence decisions in that setting, even if we have to sit through some uncomfortable meetings and frosty lunches because we’re the youngest and it falls on us to carry civility on behalf of the team after the seniors have left in a huff immediately after the meeting.
So, did the business committee reach an agreement on the change in voting method? Or did the Opposition let that one go only to bring it up in the House as allowed by the standing orders? Or were they absent at the relevant committee meeting? Or were they physically present but mentally absent?
If neither the House nor the business committee changed the method of recording a majority vote of the House then did the Speaker use his extensive powers under the standing orders to make the change?
Again, those powers of the Speaker set out in the rules and Constitution with plenty of room for the Opposition to amend or speak to various changes in the business committee or the House. Which would make any latent angst unfathomable or a convenient cover for lack of policy depth and/or discussion.
As for the meat of the change- was the change also a nod to the new normal of COVID-19 and online sittings where the integrity of the vote could not be secured as well as votes on-site? Is there legal backing for the substance of the change?
Let’s go back to the Constitution. It sets out clearly that no Member of Parliament can cross the floor without sanction or permission from their party.
So the change correctly assumes that the political party in government will have the majority vote for four years unless government members wish to cross the floor (vote against the Government) or abstain without permission of their party- in which case the constitution is also clear.
The relevant subsections are subsections 63 (1) (h) and (i) which say that the seat of a member of Parliament becomes vacant if the member:
“(h) votes or abstains from voting in Parliament contrary to any direction issued by the political party for which he or she was a candidate at the time he or she was elected to Parliament, without obtaining the prior permission of the political party; or
(i) is expelled from the political party for which he or she was a candidate at the time he or she was elected to Parliament and— (i) the expulsion was in accordance with the rules of the political party relating to party discipline; and (ii) the expulsion did not relate to any action taken by the member in his or her capacity as a member of a committee of Parliament.”
In other words, if a member votes against the direction of their party, he or she may lose their seat once the Speaker is notified or they may be expelled by their party and thereby lose their seat.
After which, the constitution says that those members are replaced with party members on the party list submitted to the Fijian Elections Office in the last elections.
Party vote matters
So it is safe to assume that no matter how many times any member may indulge themselves to vote multiple ways verbally in the House- the political parties in the House will all vote together one way or the other. And that is the vote that matters, according to the constitution. The party vote.
Member speeches and press releases will identify that party vote for four years unless political parties free up their members to vote anyway they wish (in which case, individual speeches and press releases will also identify those votes) or, unless some member votes against their party or abstains and identifies him or herself to make the point. From which point the constitutional provisions will set in and out goes the member, while Parliament returns to the party list with the Fijian Elections Office.
At first glance, the recent change will thereby appear dictatorial to individual members of Parliament viz their political parties but political parties have been around for decades in Fiji and for centuries in other countries (liberal democracies like Australia and New Zealand).
And even decades back when I was at university, we had an entire elective committed to the study of how modern political parties (with more and more party discipline to party whips ensuring that everyone is voting together in one direction) can properly coexist with the separation of powers doctrine viz the legislative and executive arms of Government.
Thus it appears that the drafters of the 2013 Constitution were very much awake to all of those legal and philosophical issues and decided to put us all out of our misery by writing down clear rules in the Constitution instead of leaving the issues to messy political infighting that hinder governance.
Think collapsing governments every year or so making governance and national development more difficult. Furthermore, the system of electing our members of Parliament under the constitution (section 53) is one that elects parties first and foremost, not individual members to separate constituencies.
Votes to each candidate are all collected and counted for the party before seats are allocated to the party list.
Members of Parliament are therefore in Parliament for and on behalf of their parties/party vote that represents their voters. If they do not wish to abide by political party rules and directions, the constitution rules them out of Parliament.
There is so much more that can be written about the what and how of the recent change in recording the voting majority and minority but one hopes that more than sufficient words have been used in this article alone to show that there are constitutional foundations and protections of the parliamentary vote to put the unaware members and their supporters out of at least one of their many worries.
Their favourite worry about whether the Constitution has been properly adopted and endorsed by Fiji and Fijians will have to be addressed by another article on its own.