Hughes v Rogers

• Jurisdiction: Anguilla
• Judge: Saunders, J
• Judgment Date: 12 January 2000
• Neutral Citation: AI 2000 HC 1
• Docket Number: Civil Suits Nos. 99 & 101 of 1999
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Date: 12 January 2000

High Court

Saunders, J.

Civil Suits Nos. 99 & 101 of 1999

Hughes

and

Rogers

Appearances:

Dr. Ralph Gonsalves and Mr. Thomas Astaphan for the applicant

The respondent in person

The Attorney General, Amicus Curiae

Constitutional law - House of Assembly — Quorum — Application for Speaker to convene House and commence sittings — Whether and at which point Speaker can declare whether a quorum is present for a meeting — Anguilla Constitution, s. 52 — Finding by court that eight members in addition to Speaker constitute a quorum

Saunders, J

1 Anguilla is in the throes of a political crisis. The crisis has paralysed the House of Assembly. That body has not met since 30th March, 1999. Members of the Opposition have been absenting themselves from sittings of the House. Meetings of the House were called in August and September, 1999. Neither took place. On each occasion the Speaker, Mr. Leroy Rogers, took it upon himself to adjourn the meeting. The House has since been prorogued.

2 These suits arise out of the actions of the Speaker. The Chief Minister, Mr. Hubert Hughes, has instituted them. Mr. Hughes has asked the court to compel the Speaker to convene the House and commence the sittings by taking the Chair. He has filed a constitutional Motion seeking certain Declarations. He has also applied for writs of Mandamus and Prohibition.

3 The cases first came up for hearing on the 4 ^th October, 1999. They were adjourned to the 8th November. Mr. Rogers had not yet retained counsel. On the 8 ^th November, the matters again came before me. They were again adjourned, and for the same reason, to 29 ^th November, 1999. As that was a date inconvenient to the court, the matters were re-scheduled to 1 ^st December, 1999.

4 On the 1 ^st December, lawyers for Mr. Rogers applied for a further adjournment. At least five more weeks were requested. Counsel for Mr. Hughes vigorously opposed this application. I listened carefully to both sides. I retired for 30 minutes and then gave reasons in writing why I thought I should refuse the application. I proceeded to hear the suits. Mr. Rogers' lawyers (retained only to request the adjournment) excused themselves from the proceedings. Mr. Rogers himself, while present throughout the hearing, explained to the court that without legal representation he was unable to make any submissions to the court on the substantive Motions. At the invitation of the court, the Attorney General made very carefully prepared submissions on the legal issues raised.

5 In support of these actions several affidavits were filed on behalf of the Chief Minister. The salient facts are all matters of public knowledge. The Anguilla House of Assembly is comprised of eleven members in addition to the Speaker. Seven of the eleven are elected. The other four comprise two ex-officio and two nominated members. Following the last General Elections in March 1999, the Chief Minister's Government was sworn in with four of the seven elected seats. In May, 1999, one of the four elected members on the government side, Mr. Victor Banks, resigned his position. Mr. Banks is now in opposition to the Government. At this time there are four elected members in opposition while the Government continues in office with three elected members.

6 The House of Assembly was summoned to meet on 10 ^th August, 1999. At 9.00 o'clock that morning the Speaker entered the Chamber. He stood next to the Speaker's Chair and observed that there was not a quorum present. The Chief Minister called upon him to take the Chair and commence the sitting. He refused and gave reasons for his refusal. He stated that he was adjourning the House for half-hour in order to enable a quorum to be obtained. When there was no quorum after that period of time, the Speaker returned to the Chamber and stated that he was adjourning the House sine die.

7 The House of Assembly was again summoned to meet on 2 ^nd September, 1999. Much the same thing happened as occurred on August 10 ^th. That meeting too was adjourned by the Speaker for lack of a quorum. It is not disputed that on each occasion, the maximum number of members available to constitute a quorum was seven.

8 On August 16 ^th, Mr. Rogers explained his actions of 10 ^th August via a Radio Address to the people of Anguilla. His understanding of the applicable law and practice is that the Speaker must first satisfy himself that there is a quorum before a sitting is commenced. Is the Speaker correct in this respect? Can he, of his own accord, declare the absence of a quorum before the commencement of a sitting? Can a court of law inquire into his decision to adjourn the meetings? Given the present membership of the House, how many members are needed to constitute a quorum? Should the court disagree with the Speaker's interpretation, are the remedies of Mandamus and Prohibition open to the applicant? These are the substantial questions posed by these suits.

9 To a great extent, these issues hinge upon the interpretation of section 52 of the Anguilla Constitution. That section states thus:

• “52.(1) If at any sitting of the Assembly a quorum is not present and any member of the Assembly who is present objects on that account to the transaction of business and, after such interval as may be prescribed in the rules of procedure of the assembly, the person presiding at the sitting ascertains that a quorum is still not present, he shall adjourn the Assembly.

• 52(2) For the purpose of this section a quorum shall consist of two-thirds of the members of the Assembly in addition to the person presiding.”

10 I shall first dispose of the question relating to the number of members required to make a quorum. The provisions of section 52(2) are clear. “…..a quorum shall consist of two-thirds of the members of the Assembly in addition to the person presiding”. Simple mathematics will reveal that two-thirds of the eleven members is 7 and one-third.

11 Mr. Rogers interpreted section 52(2) to mean that whenever two thirds resulted in a fraction, as it does now, then the next highest whole number would represent the applicable quorum. Dr. Gonsalves advanced a range of arguments designed to persuade me that I should hold that the framers of the Constitution really meant, not “two-thirds” but “approximately two-thirds”. He submitted that, in the context of the current membership, I should round down the quorum to seven.

12 With a requirement for two-thirds of the members, the framers of the Anguilla Constitution established a large quorum for the Anguilla House of Assembly. That Assembly has one of the highest such requirements in the Commonwealth. It appears that this has been done quite deliberately. The two-thirds requirement in the present Constitution is also to be found in the previous 1976 Constitution. The Attorney General submits that by this requirement it was intended that a majority of the elected Members should be present in order to constitute a quorum.

13 No authority was given for the applicant's submission that the court can and should round down the quorum requirement to seven. I am not surprised at this. To adopt such a course of action would be contrary to precedent and good practice. In 1989 Australia amended the provisions pertaining to their quorum. A quorum of the Australia House of Representatives is now “one-fifth of the whole number of the members ….” There are 148 members. The quorum has therefore been set at 30. The argument that the resulting fraction (three-fifths) is more than one half and thus amenable to rounding upwards rather than downwards is futile, The quorum provided for in the original Australia Constitution was one-third of the said 148. Yet, it was never doubted then that the quorum of 49 and one-third should be rounded upwards to 50. The concept of a quorum denotes the idea of the least possible for the valid transaction of business. Rounding down to seven members would not illuminate the relevant constitutional provision. It would undermine it. The Speaker was right to take the view that, given the current membership, the Anguilla House has a quorum of eight members “in addition to the person presiding”.

14 In order properly to give effect to section 52 of the Anguilla Constitution and answer the other important questions posed by these suits, it seems to me that the court should consider a variety of factors. These would include the following:

• a) the ordinary language of section 52;

• b) the historical development of Parliamentary practice regarding a quorum;

• c) the possible object or purpose of the section;

• d) the manner in which the section relates to rules specifically sanctioned by the Constitution;

• e) the inherent power of a House of Assembly to regulate its own internal proceedings and the reluctance of the courts to inquire into what transpires within the walls of Parliament; and

• f) the role of the Speaker

  I now proceed so to do.

15 (a) The language of the section

Section 52 is very plain in its terms. The section stipulates a sitting of the Assembly, absence of a quorum at such sitting and objection by a member during the currency of the sitting. The section goes on further to assume the existence of rules prescribing an interval. Finally, the first sub-section directs the person presiding on the steps he or she must take after the interval prescribed in the rules has elapsed and once the above assumptions have been satisfied. The second sub-section gives a mathematical formula for arriving at the quorum.

16 It is of some interest to note that, for its operational effect, the section refers to and relies upon something (i.e. the length of the interval) “prescribed in the rules of procedure of the Assembly”. This reinforces the notion that the section does not, indeed cannot, stand on its own. It has to be viewed within a much broader context.

17 Section 52 does not expressly address...