By Dion Smith
By way of introduction and experience, my name is Dion D Smith. I am an attorney-at-law having been called to practice in the Supreme Court of the Commonwealth of The Bahamas in the year 2001. I have over 20 years’ experience practicing in the Magistrates’ Court, the Supreme Court, the Court of Appeal and also preparing applications for the Privy Council.
From May of the year 2012 to May of the year 2017, I had the pleasure to be elected as member of Parliament and the deputy speaker of the House of Assembly of the Commonwealth of The Bahamas. During my time in office, I was also appointed the chairman of Bahamas Road Traffic Department (RTD) and the executive chairman of the Bahamas Agricultural and Industrial Corporation (BAIC).
I chaired many board meetings at RTD and BAIC and every bill passed to an act of Parliament during my time in office had to pass through the committee of the whole house, which is chaired by the deputy speaker. This experience gave me many opportunities to read and interpret the rules of procedure of our honorable House of Assembly, Erskine May on parliamentary procedure, the Bahamas Constitution and other legislation. I also had many opportunities to consult with the former and the present chief clerk of the House of Assembly.
By letter dated February 4, 2021 the speaker wrote to the secretary general of the FNM (Free National Movement) with the title “Resignation Statement”. He stated that with immediate effect he formally ended his seven-month constructive withdrawal from the FNM. He stated that he would not compromise his convictions on the fundamental essentials of democracy and good governance.
The examples he gave of what the FNM is lacking when it comes to the essentials of democracy and of good governance were: separation of powers; autonomy; accountability; transparency; freedom of information; respect for the Constitution; and independence of the legislature and judiciary.
He stated that his convictions with regard to the mentioned examples made his continued affiliation and association with the FNM untenable. He also stated that he will continue to serve as the MP for the Nassau Village Constituency and as the 54th speaker of the House of Assembly.
I have been asked to give a legal opinion in good faith on whether the speaker can or cannot be removed by the majority of the members sitting in the House of Assembly. I must begin, though, by stating that the speaker has made a historical and very courageous statement in what he did — albeit not to compromise his convictions on the fundamental essentials of democracy and good governance.
I draw reference to the Republicans who, in my opinion, lacked the courage to stand against Trump after he was impeached for inciting the insurrection at the Capitol Hill Building. I therefore commend the speaker for standing up against the entire government for what he consciously believes.
I also draw reference to the similarity of the speaker’s position and the story on the headline in yesterday’s (February 4, 2021) Nassau Guardian: “Perceived corruption in govt procurement, accountability and transparency.” This is so historical to be the very same day the speaker resigned for several reasons, including accountability and transparency.
What is also interesting is that in today’s paper, the attorney general (AG) was only able to reply that this was due to Americans being unhappy about not receiving government contracts. In my humble opinion in good faith, what was ignored by the AG is that the statement also said that the Bahamas government does not have procurement legislation.
In my humble opinion, had the government acted and not pivoted when Opposition Leader Brave Davis said it appears that the government is non-compliant with the laws on reporting procurement, we would be in a better position. Had they seriously considered the Transparency International Report laid this week, The Bahamas perhaps would not be defending the report by the United States Department of State.
A Government of action would have debated and passed the Procurement Bill, 2020, which, although completely drafted and laid for first reading in the House of Assembly, still remains on the shelf after an entire year.
In relation to removal of the speaker, I reviewed the rules of procedure of the honorable House of Assembly and Erskine May’s book on parliamentary procedure. According to May’s book, under the heading “Removal of Speaker”, the speaker, after being elected and approved, continues in that office during the whole Parliament, unless he resigns or is removed by death or incapacitation.
Therefore, my opinion is that unless Parliament is dissolved and an election is called, or the speaker resigns or becomes incapacitated, he cannot be removed by a successful/majority motion of censure or no confidence. I wish to draw attention to rule 50 (1) of the rules of the House, which provide that a motion of censure or no confidence can be brought against the government as a whole, ministers or the chair, who is the speaker.
We all recall that an unsuccessful motion of no confidence has already been brought against the speaker. I found no written rule or law that prevents a second motion of censure or no confidence being brought in the same session. However, the convention in the Westminster system is that only one motion of censure or of no confidence may be brought in a session.
Therefore, if the government prorogued the House and returned with a notice of a motion of censure or no confidence in the speaker, it would be considered a new session and therefore such motion would be the first of that session and not violate the convention.
This now takes us back to my first point from May’s: the speaker, after being elected and approved, continues in that office during the whole Parliament, unless he resigns or is removed by death or incapacitation. This means whether there is a successful/majority motion for censure or no confidence, the speaker cannot be removed by this motion.
I draw attention to a previous session in Parliament where then Prime Minister Sir Lynden Pindling found his government in conflict with then Speaker Sir Arlington Butler. The speaker decided to put the question to the House when the majority of the government members were not in the House. The PM subsequently prorogued the House, came back days later with the same bill and had it passed when he had the majority.
The lesson to be learned here is that the government never brought a motion of censure or no confidence against the speaker despite the conflict. My opinion, based on my research, is that it was considered but understood that a successful/majority motion of censure or no confidence could not remove the speaker.
Please note that the Bahamas Constitution gives no power to remove the speaker, and therefore if the speaker refuses to resign the best option is that the government persuade him to resign. Unless this was to happen, the government would be stuck with this speaker until the next election is called.
I conclude by stating this is an expression of my humble opinion in good faith. There is no malicious intent to defame or injure the character of anyone mentioned in this opinion. My intention is to review the law and the facts, then give my unbiased legal opinion on the issues that arose.