CCJ reserves decision, to decode constitutional complexity arising From no-confidence appeals

May 11, 2019 News

Guyana’s fate, in relation to the no- confidence motion against the government, now rests solely on the shoulders of judges of the Caribbean Court of Justice, (CCJ).
Yesterday, the Court heard the last of arguments presented by attorneys involved in the consolidated hearings of three cases arising out of the no confidence vote in Guyana last December.
CONSTITUTIONAL COMPLEXITY
The panel of five judges, comprising President of the CCJ, Justice Adrian Saunders, and Justices Winston Anderson, Jacob Witt, David Hayton and Maureeen Ragnauth –Lee, have now been tasked with decoding, inter alia, the complexity of two major constitutional provisions arising out of the arguments presented in the no confidence appeals.
In their presentations, attorneys representing the Government in the matters, objected to the legality of the no -confidence vote on claims that Article 156(3) of the Constitution, preserves above all else a Parliamentarian‘s loyalty to his or her party’s list.
The issue raises serious concerns about the Government’s interpretation of Article 156 (3) an anti -defection provision in the face of a Constitutional provision which subscribes to a person’s right to a confidence vote in favour of or against the ruling administration.
The Court had asked attorneys to quantity their positions as these relate to the two measures.
Opening the arguments on Day Two of the presentations, Attorney- at -law Neil Boston S.C addressed the point that the anti –defection provision essentially bars Parliamentarians from crossing the floor.
He explained that Article 156 (3) was initiated by the People’s Progressive Party, after Khemraj Ramjattan, a former PPP Executive, crossed the floor to join the opposing team.
“The then President Bharrat Jagdeo and the Opposition Leader, Robert Corbin, came to decide that they will have none of that. No member will be able to cross the floor. That it is not acceptable.”
He noted in the circumstances, “Loyalty to the party is the norm; to vote against your list is disloyalty; voting with other side, smacks of conspiracy.”
In reference to provisions in the Representation of the Peoples ‘Act, Boston said that Charrandass Persaud did not own the right to a seat in Parliament.
“Charrandass has no constituency. He was put there as a front for the APNU –AFC list. His function there was to carry out the mandate and the dictates of the list,” the attorney declared in the face of questions by Justice David Hayton
“Where is the statutory provision that says that you must vote according to the list and if he doesn’t do so his vote will not be recorded? If that is what was intended, it should simply state that. Nowhere can I find any provision like that,” the judge said.
In as much as there is no such provision it is an obligation of the court having construed the purpose and intention of the constitution to make a determination.
Should it interpret the whole idea is to prevent a member from voting against his list, then the court is duty bound to give effect to it.
The Judge noted however that the law should therefore be simple and clear as it relates to the issues.
Boston then stressed that the Court is duty bound to give effect to spirit and intention of Article 156(3).
Boston noted that anti- defection provision sets out that a Member of Parliament cannot vote against his/ her list without sending a letter to Speaker of the National Assembly, notifying him of the intention.
The Senior Counsel cited authorities presented by Appeal Court Judges who in a majority ruling had nullified the no- confidence motion against the government.
The lawyer was later faced with the question of reconciling his position with Article 106(6) of the Constitution which sets out the Government and Cabinet can be defeated by a vote of no confidence in the National Assembly.
“How can the Government be a vote of confidence if nobody is allowed to cross the floor. How is it possible to give effect to Article 106 (6)?” asked Justice Anderson
However, Boston noted that “the issue must be decided in the National Assembly at some future date…The legislature will have to deal with that conflict…”
ARGUMENTS
He followed the contentions of former Attorney General of Belize, Eamon Courtenay, who on behalf of Attorney General, Basil Williams advanced that the no-confidence motion was invalid because Guyana’s constitution prohibits Parliamentarians from being disloyal to the party’s list of candidates.
In support of his contention, Courtenay, cited Article 156(3) of the Constitution, which was amended in 2007 to essentially bar Parliamentarians from crossing the floor.
According to the attorney, the rule was placed there, as a reminder to Parliamentarians on each side of the House of how they got there, in the first place.
Courtenay noted that Persaud, being an Attorney-at-law, was well aware of the Article and its provisions.
The lawyer declared that the rules provide for a disgruntled member of the party to declare in writing to the Speaker or to the representative of the list from which his/her name was extracted that he or she will not support the list from which his or her name was extracted.
He explained that rules essentially state that each member should make his or her contention known before it reaches the Parliament. He was adamant that the Article prohibits Parliamentarians from voting in accordance with their own convictions; they must remain within party lines
The former Attorney General was at the time debunking claims by Opposition leader Bharrat Jagdeo’s Counsel Douglas Mendes S.C that Persaud’s vote was validly passed even if he was not validly a member of National Assembly.
Applied to Mr. Persaud ‘s situation even if this Court were to find that he was invalidly elected or he is to be treated as having vacated his seat at some undefined date prior to December 21, 2018, his vote in favour of the motion is treated as valid under the de facto doctrine.
Arguing the point of a majority vote, Mendes noted that Attorney General Basil Williams accepts that the ordinary and legal meaning of the word majority is a number greater than half; that concession ought to lead to a shift in determination of this appeal.
Mendes added that half of 65 is 32.5; a number higher than 32.5 is 33. He stressed that Williams spoke about absolute and simple majority. Those phrases are nowhere found in Guyana’s Constitution. He said that those words were simply injected into the arguments to suit the government’s position.
In his rebuttal of the arguments, Mendes stressed that the anti-crossing the floor mechanism does not make void the no confidence provision in the Constitution.
Mendes had stressed that Persaud’s membership of the House was valid because no one challenged him within the 28-day stipulated time-frame after an election through a petition. The attorney was also adamant that Persaud had the right to vote in keeping with his “conscience” vote since his convictions are supported by the Constitution.
In a wide ranging presentation that lasted nearly two hours, Mendes challenged the notion that the majority of 65 can be anything but 33 which is simply the greater part of any other combination.
Further, Mr. Mendes challenged the notion that what transpired on December 21 was not a no confidence vote but rather a vote of confidence which could only be tabled by the government.
The Trinidadian Senior Counsel made a substantial part presentation on whether the vote by Charrandass Persaud, who holds dual citizenship for both Guyana and Canada was valid, since on the face of it, Persaud was not eligible for election to the national assembly.
Mendes acknowledged the disqualification but noted that his vote was saved by the Constitution.
Both Ramkarran and Basil Williams sought to locate the significance of the vote in Guyana’s politics and its history with questionable elections going back decades.
Williams told the Court that for the elections between 2001 and 2015, inclusive, had been generally considered to be free of any discord or controversy. The AG also referred to the Carter Formula, the execution of which came up for adjudication in a case heard by the CCJ on Wednesday, brought by Zulfikar Mustapha, an executive member of the PPP.
Williams later argued that; what is required to pass the no-confidence motion was an absolute majority and not a simple majority.
Williams also stated that the majority required couldn’t be a simple majority, given the catastrophic consequences of the no-confidence vote.
He also told the panel of Judges that Former CCJ President, Sir Dennis Byron, had determined that Guyana’s Assembly to have both a simple and absolute majority.
However, Justice Winston Anderson responded that what Sir Dennis Byron said was that a simple majority is a majority of those who voted while an absolute majority is the majority of all of those entitled to vote.
Devindra Kissoon, Ramkarran’s co-counsel, shared Ramkarran’s time and dealt mainly with potential remedies and orders which the court could make if the court decided that the motion was duly and properly carried and that elections needed to be held under Article 106 (7).
The consolidated hearings for the cases involving Christopher Ram, Attorney General Basil Williams, Leader of the Opposition Bharrat Jagdeo and Joseph Harmon, Speaker of the National Assembly Dr. Barton Scotland, Charrandass Persaud and Compton Herbert Reid garnered much attention from Guyanese at home and abroad.