On Friday the 15th March, 2019 the Honourable Mr. Justice Rishi Persaud (Court of Appeal) granted my application to appear and make submission as Amicus Curaiein the matters before the Court of Appeal in respect to the No Confidence Motion.
That the Leader of the Opposition Mr. Bharrat Jagdeo filed a No Confidence Motion in Parliament in accordance with the Constitution of Guyana Article 106..
That the motion was debated and on the 21st December, 2018 a vote was taken of all the elected members of the National Assembly and 33 (thirty three) voted “YES” and 32 (thirty two) voted “NO”.
The question arose as to whether a “No Confidence Motion” acquired a majority of all the elected members by 33 (thirty three) votes in accordance with the Constitution of Guyana Article 106 (6) as distinguished from Article 168 (1) of the Constitution.
That Parliament was reconvened for the Speaker to decide whether 34 (thirty four) votes or 33 (thirty three) votes were sufficient to be qualified as the majority.
The Honorable Speaker admitted he has jurisdiction to make such a decision but decline jurisdiction went on to say: – “That the issues we now face cause us to look outside of Parliament. The issues involve choice of interpretation. These issues involve final interpretation of particular Articles of the Constitution which involve cases, etc. Full, final and complete settlement that these issues by a Court of competent jurisdiction would place beyond doubt any question which exist and served to give guidance to the Speaker and to the National Assembly of the future.”
This is not new evidence since it was referred to by the Honourable Chief Justice (ag) Roxanne George Wilshire in the decision of A.G v. Dr. Scotland 2019-HC-DEM-CIV-FDA-22 of page 7.
I submit that a person in public office making a statement is bound by the statement in this case to the effect that the final determination rest with the Court of competent jurisdiction. The decision of the Honourable Speaker is consequently not final and conclusive until it is finally determined by a Court of competent jurisdiction to the final stage. Lord Denning in R v. Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators’ Association,  2 QB 299 states to the effect that “The corporation would not resile from their statement” and gives a legitimate expectation. In the instant case there is no final determination of a No Confidence Motion as it has not been finally reviewed as requested by the Speaker when he stated: “Full, final and complete settlement of these issues by a Court of competent jurisdiction would place beyond doubt any question which exist.” The reference jurisdiction has been dealt with by several articles.
The Appeal before the Court consequently ought to be treated as arising out of reference by the Speaker of the House Civil Procedures Rule 2016 61:03. For this reason it is imperative that the Court of Appeal grant a Stay in these matters at every stage of the proceedings until final determination.
The Court also has to interpret Article 106 (6) of the Constitution which states:-
“The Cabinet including the President shall resign if the Government is defeated by the vote of a majority of all the elected members of the National Assembly on a vote of confidence”.
Article 10(7) of the Constitution states:
“Notwithstanding its defeat, the Government shall remain in office and shall hold an election within three months, or such longer period as the National Assembly shall be resolution supported by not less than two-thirds of the votes of all the elected members of the National Assembly determine, and shall resign after the President takes the oath of office following the election.”
There must be an explanation of the word election in accordance with Anisminic Ltd. v. Foreign Compensation Commission  2 A.C. 147
In Anisminic the Court had to decide the meaning of determination and concluded that in the context it means a genuine determination. In Article 106 (6) the word election means a genuine election. This is supported by the Universal Declaration of Human Rights Article 21 (3) which guarantees periodic and genuine election to all member states. The Constitution of Guyana stipulates that convention and treaties will be referred to interpretation of the Constitution.
Peter W. Hogg Constitutional Law of Canada Thomas Carswell 2004 Student Edition pages 852 to 856 under the heading TEMPORARY VALIDITY refer to the cases in which the court granted a Stay of the Order to ensure the continuity in the rule of law “It is therefore necessary in order to preserve the rule of law to have a period of temporary validity from the date of judgment to a period during which it would be possible to hold a genuine election defactum doctrine will not by itself preserve and protect the continuity of the Government”.
Re Manitoba  1 S.C.R 721 at page 724 stated:
“That from the date of the judgment the Province of Manitoba had an invalid and therefore ineffectual legal system until the Legislature is able to translate, re-enact, print and publish its current laws in both official languages. The Constitutional principle of the rule of law would be violated by these consequences”.
The principle of the Rule of Law is recognized in the Constitution of Guyana and has always been a principle of the Guyana Constitutional Acts and Order. Court must recognize the unconstitutionality of the Guyana Government when the cases are determined to its finality. The legislators have a duty to comply with the Supreme law of the country while avoiding a legal vacuum and ensuring the continuity of the rule of law.
The rule of law in this context does not mean everyone is subject to the same law but is the second Limb of Dicey’s tabulation of the rule of law i.e. a state has to be governed by law.
In the case of Esther Pierreira 36-P of 1998 Demerara, the Honourable Justice Claudette Singh on the 26th January, 2001 in the Order of Court paragraphs 5, 6, 7 and 8 set out the principles on which the then illegal Government was temporarily validated until the new election was completed. The situation today is identical and the court must act consistent with the Esther Pierreira decision.
The arguments for Interim Stay must consider the constitutional question of Interim Validity to preserve the Rule of Law. The court must grant the Stay in circumstance to prevent anarchy and/or irretrievable damage to the Nation.
Mr. Saphier Husain Subedar
Leader of the National Independent Party
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