No Confidence Motion

2020 CLC 2063 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S.27 [as amended by Sindh Local Government (Amendment) Act (V of 2019)]No confidence motionRemoval from office

Petitioners were aggrieved of notifications issued in pursuance of vote of no-confidence by simple majority whereby they were removed from their offices

Validity

From initiation of motion of no confidence and culminating in issuance of schedule for fresh election by Election Commission, petitioners failed to identify any infirmity

Challenge to notification for re-election was devoid of merit and de novo deliberation in respect of notifications in question were without merit

Constitutional petition was dismissed in circumstances.

2017 SCMR 1803 CONSTITUTIONAL-COURT-OF-SOUTH-AFRICA Judicial Precedent

Motion of no confidence against the President (of South Africa)ProcedureVoting by "secret ballot"Constitutionality

Question as to whether the Constitution of South Africa and Rules of the National Assembly permitted or prohibited voting in a motion of no confidence in the President by secret ballot

Speaker of the National Assembly refused to prescribe a secret ballot in a motion of no confidence in the President by holding that voting procedures in the Assembly were determined by the Constitution and the Rules of the National Assembly and that none of them provided for a vote on a motion of no confidence to be conducted by a secret ballot

Opposition parties contended that although the Constitution and the Rules of the National Assembly did not make any express provision for a secret ballot on a motion of no confidence in the President, but the said legal instruments also did not prohibit it; that Ss. 86 & 102(2) of the Constitution (of South Africa),read with Item 6 of Part A of Schedule 3 to the Constitution and Rr. 6, 103, 104 & 129 of the Rules of the National Assembly, required that the President was elected via secret ballot, thus, the same practice should apply when seeking his or her removal from office; that at the very least, the Speaker retained a discretion to allow a secret ballot to decide the fate of the President; that if the voting process were to expose the identities of members of the National Assembly, it would prevent the members to vote according to their individual conscience without undue influence, intimidation or fear of disapproval by others

President contended that members of the National Assembly were required to carry out the decisions of their respective political parties, and that party discipline was being mischaracterised as intimidation; that the constitutional values of accountability and transparency should trump all other issues raised by the opposition parties in support of voting by secret ballot, and that to compel a secret ballot would trench upon the separation of powers; held, that the Constitution prescribed voting by secret ballot in the general elections and the elections of the Deputy Speaker, the Speaker and the President, but it was silent on the voting procedure for their removal

Decision therefore remained with the National Assembly to determine the voting procedure in conducting a motion of no confidence in terms of its constitutional powers (under S. 57 of the Constitution)

Both possibilities of an open or secret ballot were constitutionally permissible

Otherwise, if Members always had to vote openly and in obedience to enforceable party instructions, provision would not have been made for a secret ballot when the President, Speaker, Chairperson of the National Council of Provinces and their Deputies were elected, and the Constitution would have made it clear that voting would always be by open ballot

Rules 102, 103 and 104 of the National Assembly empowered the Speaker, on behalf of the Assembly, to prescribe an open ballot or a secret ballot in a motion of no confidence in the President, though such determination was situation-specific, and it would be the Speaker's judgment call to make, having due regard to what would be the best procedure to ensure that Members exercised their oversight powers most effectively

When the Speaker exercised the power to determine the appropriate voting procedure in the motion under particular circumstances, several factors would have to be taken into account

Said factors included but were not limited to; first, whether the chosen voting procedure would allow Members of the National Assembly to vote according to their conscience and in the furtherance of the best interests of the people; second, whether the prevailing circumstances were either peaceful, or toxified and potentially hazardous; third, the imperative of the Speaker's impartiality must be consciously factored into the decision making process; fourth, the effectiveness of a motion of no confidence as an accountability and consequence-management tool must be enhanced by the chosen voting procedure; fifth, the possibility of corruption or bribes in the event of a secret ballot must be considered; sixth, the need for the value of transparency to find expression in the passing of the motion must be taken into account; and seventh, the decision must be rationally connected to the purpose of a motion of no confidence and should not be made arbitrarily

Speaker had the constitutional power to prescribe voting in a motion of no confidence in the President to be conducted by secret ballot under appropriate circumstances

Exercise of such power must be duly guided by the need to enable effective accountability, what was in the best interests of the people and obedience to the Constitution

2017 SCMR 1803 CONSTITUTIONAL-COURT-OF-SOUTH-AFRICA Judicial Precedent

Motion of no confidence in the Cabinet or the PresidentPurpose and scope

Motion of no confidence was inextricably connected to the foundational values of accountability and responsiveness to the needs of the people

Said motion was a mechanism at the disposal of the National Assembly to resort to, whenever necessary, for the enhancement of the effectiveness and efficiency of its constitutional obligation to hold the Executive accountable and oversee the performance of its constitutional duties

Accountability was necessitated by the reality that constitutional office-bearers occupied their positions of authority on behalf of and for the common good of all the people, who put them there, directly or indirectly

Constitutional office-bearers, therefore, had to account for the way they served the people

Motion of no confidence therefore existed to strengthen regular and less fatal accountability and oversight mechanisms

Mechanism of a motion of no confidence was all about ensuring that the constitutional project was well managed; it was not imperilled; the best interests of the nation enjoyed priority in whatever important step was taken; and the nation was governed only by those deserving of governance responsibilities

To determine, through a motion of no confidence, the continued suitability for office of those who governed, was a crucial consequence-management or good-governance issue

Needs of the people must never be allowed to be neglected without appropriate and most effective consequences, thus, a motion of no confidence was fundamentally about guaranteeing or reinforcing the effectiveness of existing mechanisms, in-between the general elections, by allowing Members of Parliament as representatives of the people to express and act firmly on their dissatisfaction with the Executive's performance

[Constitution of the Republic of South Africa, 1996, Ss.92 & 102].