By: Kalipha MM Mbye
One of the cornerstones of parliamentary procedure is that proceedings in the Assembly is conducted in a free and civil manner. To facilitate this recognised principle, the Assembly adopted rules of procedures for the maintenance of order and decorum for the conduct of members and to regulate its own proceedings. Considering the sacred nature of the institution of parliament, members are expected to show respect for one another, and the competing different viewpoints. Therefore, offensive, or discourteous behaviour or language is intolerable.
The Sixth Legislature of the National Assembly (the parliament) of The Gambia was elected to office in April, 2022; relatively new in office at the time of writing this article. The majority membership of this legislature is first timers in parliamentary practice and procedure.
Few months into parliamentary proceedings and the apparent enthusiasm to employ and test every opportunity and tool at their disposal, the conduct of some members during proceedings reveals the normal inexperience associated to new membership to any organisation as well as the creative art of politician seeking to be recognised in every gathering.
The fundamental rules and precepts of the routine important parliamentary tool of point of order cannot be ignored in any parliamentary proceedings. There is no device, which is most frequently used and abused than a point of order.
This paper therefore examines the practices and rules pertaining to point of order in the Assembly and the powers of the speaker, as the presiding officer to enforce order and decorum when breaches occur. It provides some understanding and clarifications on the principles, usage, and rules of parliamentary point of order with specific emphasis in The Gambia’s context.
Point of order
Generally, it is a fundamental parliamentary law that a member speaking must be heard in silence by others in every proceedings of parliament and members are condemned to making unseemly disruption while a member is on his or her feet speaking. Hence, a “point of order” is a privileged permissible interruption granted to a member to interrupt another member on an alleged breach of rules of procedure or a matter of procedure requiring speaker’s elucidation. The rules require that a point of order may be raised if there is any allege deviation from parliamentary rules, existing laws, or whether proper procedure has been, or is being, followed in the Assembly.
Equally and in principle, a point of order, especially on a substantial matter, could be raise by a member or a chairperson of a committee seeking the guidance of the speaker on a matter of procedure affecting the Assembly in its operation or proceedings. Essentially, a member can use a point of order to seek guidance from the speaker in the chamber on a matter of parliamentary procedure.
It is therefore pertinent to note that a point of order in its general parliamentary sense is an appeal to the presiding officer for clarification or judgment on a matter of procedure in the National Assembly.
What form should a point of order take?
There may not be a specific form in which a point of may be raised. However, it is a settled rule that a member can make a point of order relating to a particular breach, or matter of procedure during proceedings of the Assembly. In practice, a member is required to catch the speaker’s eye through raising his or her constituency tag or standing in one’s place shouting or indicating “Hon. Speaker, point of order!”
Substantial points of order, and ones not related to a specific proceeding but affects a procedural matter of the Assembly may be taken by the speaker. However, the speaker may decide not to make an immediate ruling on such kind of points of order but ask for time to reflect on the issue. In practice, and advisably a member wishing to make a substantial point of order should give prior notice to the speaker’s office. This is desirable as substantial points of order are usually intricate and may require some technical research.
It is a decried practice where members often abuse points of order or misconstrue it with “point of observation or clarification” to participate in a debate. This is many a time frowns upon by the speaker as against the rules of the Assembly. For a point of order to be legitimate, it must relate to a matter of procedure or allege breach of it for the speaker to decide on the matter.
What happens when a point of order is raised?
It is a cardinal rule that any member who is on his or her feet speaking must resume his or her seat whenever a point of order is raised, and the member raising the point must equally submit his or her point to the speaker for determination. It is equally imperative that, except by leave of the speaker, no other member must rise until the speaker decides on a point of order and when a ruling is made on the point, the member who had the floor is entitled to proceed, subject to the decision. This is a very fundamental rule ought to be observed by members of parliament at all times in the proceeding of the Assembly.
Speaker’s duty on point of order
It is the duty of the speaker to decide on all matters of order and procedure in the chamber of the Assembly. The speaker as the presiding officer responsible, in the Assembly, for the observance of the rules of order and procedure, his or her decisions are not subject to appeal except on a substantive motion for which notice must be given. Equally, the speaker has the duty to call any member to order if he or she considers any member’s action a violation of any provision of the rules or a breach of general parliamentary procedure and practice regardless of whether a point of order was raised or not.
The speaker has the responsibility to examine the issue(s) raised in a point of order to determine its propriety and may rule it out of order even where no point of order is raised from the floor. It is, however, not the duty of the speaker to decide any question which is not directly presented in the Assembly.
The speaker may likewise decline to rule on a substantive point of order to a later time or date for examination and ruling, and on very rare occasion submit a question of procedure to the Assembly for a decision. However, in making a ruling on a point of order, the speaker may hear arguments from members, or even refer to parliamentary usages, customs, and conventions.
Members must alert themselves that the speaker has the mandate of ensuring that proceedings and behaviour of members are confined to the rules and practices of the Assembly, and to safeguard itself from excesses. While it is generally agreed and recognised principle that parliament is the master of its own proceedings and the speaker its servant, the speaker has extensive powers to enforce the rules and maintain order for the smooth and orderly conduct of parliamentary business.
Multi points of order
Customarily, a point of order raised must be disposed with before another point of order may be made. This further epitomise the rule that once a point of order is raised all members must be seated to hear the speaker rule on the matter. This is inviolable rule to the orderly operations of parliamentary proceedings. In exception, however, the speaker has the discretion to entertain multiple points of orders at the same time to make a ruling.
In practice, the speaker usually decides on a particular point of order before another point is raised for determination. Essentially, and as alluded to earlier, this does not preclude the presiding officer in his or her own judgment to take more than one point of order alleging a violation of a particular rule or a matter of procedure, or even a point upon a point of order for determination. It is appositely important to note that, where the speaker decides to entertain more than one point of order at a time, he or she may rule separately on each point of order in such manner or form as he or she may determine. This procedure enables the speaker to save the time of the Assembly by hearing all points of order and upholding any legitimate one of it without deciding on the others. Thus, where several points of order are made against an issue and the speaker sustains one, that would suffice for the other points on same issue. Therefore, it could be safely concluded that it is a permissible practice that multi points of orders are allowed in rare cases but at the discretion of the speaker.
The speaker’s ruling or decision
Where a point of order is sustained against a member on his or her feet, the member is required, to the extent of the ruling of the speaker, to discontinue his or her speech. This rule sacrosanct and binding that a member must respect and not disregard. The effect of a speaker’s ruling on a point of order may extend to Hansard, the verbatim record of the proceedings. For instance, if the ruling is not in favour of word or phrase uttered by a member to be unparliamentary, the speaker may, in addition, ask that the language is expunged from the records.
While acknowledging the rules of decorum, courtesy, and respect in parliamentary proceedings as important, it is cardinal principle not to interrupt the speaker. The speaker must always be heard in silence. Even under permissible interruptions, members who are highly expected to be courteous or and respectful to the Assembly, the speaker, and other members. Thus, all members, and not only the speaker, must be on alert for any infractions of procedure or order. Of course, remedies are available in parliamentary law against disrespectful or disorderly behaviours in the Assembly. Remedies include being brought to order by the speaker, made to apologise or withdraw one’s statement, and where required suspended from the sitting.
Generally, membership of any Assembly comes with certain obligations, and some of these are enshrined in the rules of such parliament. This is common to all parliaments or any formalised group of people. The most important of these are the obligations to abide by the rules of the Assembly and to abide by the lawful decisions in a parliamentary democracy. Notably in a parliamentary setting, members are obliged not to oppose the ruling of the speaker except through appropriate mechanism, such as a substantive motion to overturn or reconsider such decision.
The precedent rule
It is trite that a decision of a higher court is binding on a lower court on a question of similar fact – stare decisis. Similarly, it is a parliamentary law that speaker’s ruling serves as precedent for ensuing matter of same issue or fact. In referring to precedent to resolve a point of order, the Assembly is applying a judicial doctrine, stare decisis, under which a judge is bound by an earlier decision of a higher court on similar facts and law. In practice, the Assembly equally binds by the previous rulings of the speaker on matters of similar fact and rule.
Notwithstanding this doctrine, the speaker may after further argument or examination reverse his or her own ruling on a point of order or even that of a former speaker, where present circumstances dictate such ruling to be overturned or modified. For example, it is arguable that speaker’s ruling No. 3 of 2020 should be reviewed for modification regarding negatived ordinary bills at Second Reading stage.
In principle, while the speaker ordinarily avoids disregarding a previous decision on similar facts, such earlier decisions may be examined, modified, and even overruled where cogent reasons are present to do so.
Time to take a point of order
Certainly, a member can use a point of order for guidance from the speaker in the Assembly on a matter of procedure or on an allegation of breach of procedure. Generally, there may not be any specific rule indicating the time at which a point of order may be raised. In practice, especially in the House of Commons, a point of order relating to a particular incident could be raised immediately after the incident. Essentially, if there is any allege breach of procedure, a point of order may be raised immediately thereof.
In the UK, a more substantial points of order or one not relating to a specific event in chamber or to a member speaking are usually taken in the chamber after Question Time, and any urgent questions or oral statements. Under the practice of Gambia’s Parliament, such substantial point of order unconnected to live happening in chamber may be taken immediately after the correction of records of votes and proceedings. It is advisable if a member wants to make a substantial point of order to give advance notice the speaker’s office. This is so desirable especially when the matter is complex and requires some research.
As discussed above, a point of order must ordinarily be based on an objection that the pending or an ongoing matter or proceeding is in violation of some rule, or a matter of procedure of the Assembly requires speaker’s elucidation. Any point of order that falls short of meeting this requirement is inadmissible.
Therefore, for a point of order to be legitimate it must satisfy the criteria of an alleged violation of the Assembly’s rule or must be a procedural matter that requires elucidation from the speaker. The speaker has the duty to ascertain or convinced of the rule(s) being cited. While questions of order arising under the rules are determined by the speaker, he or she does not rule on questions of, hypothetical nature, constitutional interpretation, or legal effect of propositions, propriety, or expediency of a proposed course of action, and upcoming incidents. In the UK, speakers had refused entertaining points of order where allowing it would itself breach the rules of the Assembly. In a similar but unrelated scenario in The Gambia, the speaker refused entertaining a point of order from a member where the member deviated procedure to be heard.
Relation to other business
When a point of order is invoked against a specific matter or business, consideration of that business is suspended until the objection is cleared. In addition, where the objection is regarding a method of voting or thereabout on a matter, the speaker should rule on the point of order before proceeding to other questions. Clearly, a point of order may only be deferred when it is substantial or does not affect an ongoing procedural matter before the Assembly. A legitimate point of order takes precedence over all preposition or business until it is disposed. In other words, proceedings on a particular business shall not continue until a valid point of order is resolved.
Debate on points of order
Debate on a point of order is only permissible at the discretion of the speaker. It is generally unallowable to debate on a point of order. However, members seeking to be heard must address the chair and cannot engage in colloquies on a point of order. The discussion and time to be allowed for debate on a point of order is the sole discretion of the speaker. A member speaking on a point of order must not engage in a debate either but strictly to the point he or she wishes to bring to the attention of the speaker and Assembly.
Pertinently, it is a deprecated growing practice of interruptions by members when a member on his or her feet refuses to give way on a point of clarification or observation , and members commonly rises on a point of order only to get their words heard in a debate. It is opined that such interruptions constitute fraudulent points of order and should be avoided.
Scope of debate
It is trite parliamentary rule that any permissible debate on a point of order must be relevant thereto. Debate is limited to the order in question and may not go to the merits of the proposition being considered. The speaker should not grant request to make extensive remarks on points of order.
Burden of proving a point of order
The member rising on a point of order has the burden of proving an allegation of breach of rule or procedure. Ordinarily, a member who alleged that a violation of the law occurs must give reason(s) for believing so and the speaker decides whether it is a valid or not. For example, under the Assembly’s practice and rules, a committee report on a bill must possess certain elements and thus where a point of order is raised against consideration of a committee report on a bill on the ground that the report thereon does not reflect the expectations in the existing rules , the proponent of the point of order has the burden of proving and must cite the specific provision of the rules. Importantly, in the absence of such citation the point may not be entertained by the speaker.
Thus, a point of order having been raised, the burden of proving it falls on the proponent. However, it is pertinent to note where the authority under which a point of order raised is a common knowledge, the burden of proof is waived for the proponent. Thus, it is important for a member to advance reason(s) for believing a breach of the rules occurred, about to occur or there is a lacuna in the rules for speaker to decide or otherwise.
Withdrawal of a point of order
A point of order may be withdrawn at any time before the speaker rules on the matter. However, a point of order withdrawn may be revived by another member. Where a member decides to withdraw his or her point of order, the speaker must be notified in good time before a ruling is made. Where it is done after a ruling is made, it is now the discretion of the speaker to rescind its own ruling or otherwise.
Can a speaker’s ruling be appealed?
In principle, a ruling of the speaker on a point of order may be contested through an appeal by a member. Indeed, the right of appeal from decisions of the Speaker on questions of order is provided for by the rules of the Assembly. The speaker has the duty to ensure the care for law and order in the Assembly. Based on this rule, speaker’s decisions on questions of order and procedure are not subject to appeal except on a substantive motion for which notice must be given. This signifies that the speaker’s decision on a point of order cannot be appealed forthwith but only later by the Assembly on a substantive motion.
Fascinatingly, freedom of speech is one of the most important privileges enjoyed by National Assembly Members. However, this freedom is constrained by rules of maintaining order and decorum in parliamentary proceedings. Thus, the right to speak is tempered by the written rules of the Assembly which are generally limited on what may be said, when, whom and time.
It worth concluding by recognising that the speaker is collectively the custodian of the rights of members and the Assembly and is also responsible for facilitating the smooth and orderly conduct of business of the Assembly. During proceedings, the speaker ensures that all corners of the Assembly are heard and whenever a point of order is raised, he or she is required to interpret the rules, study and in some cases refer to precedent, if any. In addition, when necessary, the speaker is expected to evolve a new practice by using discretionary powers , and pronounce rulings as was the case in the speaker’s ruling of 12th September, 2022.
Erskine May opines that the speaker is under a duty to intervene to preserve order but may refrain from intervening if he or she considers it unnecessary to do so. However, even if the speaker does not believe that a breach of order has been committed, it is the right of any member who believe so to interrupt any member on the floor, and direct the attention of the speaker to the allege breach.
As observed earlier, the onus lies on the proponent of any point of order to simply direct attention to the point complained of and submit same to the decision of the speaker. Where the speaker is of the opinion that the words or conduct complained of are outside the bounds of the rules or practice, the concern member will be called upon to conform him or herself to the rules.
It is customary and so trite parliamentary rule that the speaker is given utmost respect and attention by all members of the Assembly. Parliamentary law dictates that whenever the speaker rises to speak, he or she is heard in silence and any member who is speaking or want to speak is required to be seated.
It is significant to note that no person is expected to leave the chamber when the speaker is addressing the Assembly, as this may imply disrespect to the chair. It is also concluded and for members to alert their minds that speaker’s rulings cannot be questioned except on a substantive motion, and they constitute precedents which are collected for future guidance.
Finally, it is procedurally depressing that members habitually rise on a point of order when a member on his or her feet refuses to give way on a point of clarification or observation, only to interrupt the member on the floor without any genuine procedural breach. The speaker including the Assembly must denounce this growing practice of interruptions of debate by members where such interruptions constitute blatant breach of parliamentary rule and a recipe for chaos and disorder in the Assembly.