Guyana awaits the CCJ ruling

May 12, 2019 News

---

The entire nation is awaiting the ruling of the Caribbean Court of Justice (CCJ), CARICOM’s highest court, on the no-confidence motion appeals.
That ruling will ultimately decide if the Coalition Government continues its term in office, or if elections have to be held before the 2020 due date.
While President of the CCJ Adrian Saunders has indicated that the court would not be ready with a judgment by this week, many Guyanese at home and abroad have had a full digest of marathon arguments and are anxiously waiting the final say.
The Trinidad-based court entertained arguments over a two-day period, May 9 and May 10, from some of the most prominent lawyers in the Caribbean Region.
There were the likes of Trinidad and Tobago-based Senior Counsel Douglas Mendes, who along with former Belizean Attorney General Courtenay presented arguments on behalf of the opposition and government respectively. Their Guyanese counterparts included Attorney General Basil Williams, Attorney-at-law Anil Nandlall, Senior Counsel Neil Boston, Attorneys-at-law Sanjeev Datadin, Kamal Ramkarran and others.
Apart from President Saunders, the panel of judges comprised Justices Winston Anderson, Jacob Wit, David Hayton and Maureen Rajnauth-Lee.
MAJORITY ISSUE
On Friday, President Saunders told Government lawyers that no one doubts that an absolute majority of all 65 elected members of the National Assembly is required for the successful passage of a no-confidence motion. The, Judge, however said that the court has to now decide on a formula. According to Saunders, the court has to determine whether to adapt the formula of dividing by two, rounding up to the nearest whole number and then adding one, which had been the case in the Solomon Islands, or determining the majority of the uneven number, 65.
The Coalition Government has insisted that an absolute majority of 65 is 34, which was upheld by the Court of Appeal.
Chancellor of the Judiciary Yonette Cummings-Edwards and Justice of Appeal Dawn Gregory had held that in calculating the absolute majority, the 65 members of the National Assembly had to be divided by two, which would result in 32.5, but since the .5 represents half and there is no half-member, that number needs to rounded off to 33, and add one more, making it 34 –an absolute majority.
But lawyers for expelled Alliance for Change (AFC) Parliamentarian, Charrandass Persaud, Chartered Accountant Christopher Ram and Leader of the Opposition Bharrat Jagdeo, are maintaining that there is no mention of an absolute or simple majority in the Constitution. To this end, they are contending that the no-confidence motion was validly passed with the votes of 33 of the 65 members present and voting, which was the ruling by Chief Justice Roxane George.
On the other hand, Government lawyers have held the word prefix “absolute” had to be interpreted in the provisions of Article 106 (6) of the Constitution of Guyana, which provides for the no-confidence motion. That Article states, “The President and the Cabinet shall resign if the Government is defeated by a vote of majority of all elected members of the National Assembly on a vote of confidence.”
Anyway, this was the position taken by government lawyer Roysdale Forde during the final day of arguments. Forde gave his take on the 34 majority and referenced a case government lawyers have been totally relying on to support their case.
However, President of the CCJ, Justice Adrian Saunders, was not on the same page as him. The CCJ President reasoned that the case is relevant to an entirely different parliamentary setting, as compared to Guyana’s. But Forde was not moving away from the issue.
The lawyer reasoned that an absolute majority is needed to unseat the government because it would avoid its steady collapse. He told President Saunders that as in the case of Guyana with a proportional representation, half plus one will always be the formula in calculating a majority. Attorney General Basil Williams, who also held the same view, was also grilled by Justice Wit on the majority issue.
Justice Wit reasoned to Williams that in the case of an odd number Parliament as in Guyana, he thought the majority of those actually voting would be the larger number of the odd number voting—in essence the majority. As in the case of an even number Parliament, Justice Wit said he sees the formula of dividing by half, then adding one, applicable. Weighing in on the issue, Senior Counsel Mendes on Thursday had told the judges following the debating and passing of the motion, everyone agreed that the government had fallen.
Senior Counsel Mendes sought to remind the court that both the President and Prime Minister admitted to the passing of the no confidence motion and told the nation that the government would abide by the Constitution in that regard. However, he said that someone came up with the “bright idea” that 33 was not the majority of the 65-member National Assembly—perhaps referring to well-known lawyer Nigel Hughes who via a Facebook stated that 34 votes were needed for the collapse of government.
Nigel Hughes had relied on the Anguillan case of Hughes and Rogers—Government later accepted this position and moved to the courts to challenge the validity of the no confidence motion. Sharing his views, Justice Wit questioned Senior Counsel Mendes on whether it was government’s view that it can only be sent packing with 34 votes, though it rules with 33 seats.
While Senior Counsel said that this seemed to be the position the Government has taken, Justice Hayton noted that if this was the case then the ruling of the Court of Appeal ought to be unanimous, since two would not be the greater part of the three-panel judges.
INVALIDATE PERSAUD’S VOTE
Senior Counsel Boston begged the CCJ to invalidate the vote of expelled Alliance For Change (AFC) Parliamentarian Charrandass Persaud. Senior Counsel Boston represents private citizen Compton Reid who was granted a declaration in both the High Court and Appeal Court that Persaud was not eligible to be a member of the National Assembly owing to him being a dual citizen which is in breach of Article 155 (1) (a) of the Constitution.
It states, “No person shall be qualified for election as a member of the National Assembly who is, by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state.” Both the Chief Justice and the Court of Appeal in a unanimous ruling held that Persaud’s vote was valid since it was protected by the provisions of Article 165 (2).
That Article provides that, “The Assembly may act notwithstanding any vacancy in its membership … (even) after any dissolution of Parliament and the presence or participation of any person not entitled to be present or to participate in the proceedings of the Assembly, shall not invalidate those proceedings.”
Anyway, at the CCJ, both Datadin and Senior Counsel Boston argued that this was to the contrary. They contended that by voting in the National Assembly, Persaud violated Article 156 (3) of the Constitution which states, “A member of the National Assembly elected on a list shall be disqualified from being a member of the National Assembly, if he or she, in the prescribed manner declares that he or she will not support the list from which his or her name was extracted, or declares that he or she abstain from supporting that list or, declares his or her support for another list.”
The lawyers submitted that by voting with the Opposition sponsored no confidence motion, Persaud failed to inform the leader of the list from which his name was extracted that he would no longer be supporting the list.
Noting that Persaud did not own his seat in the National Assembly, but rather it his party’s own, Senior Counsel Boston was unable to direct Justice Hayton to the applicable laws, which required Persaud to vote for the list from which his name was extracted.
Justice, Hayton, however, said it was his view that if framers of the Constitution had intentions for this, if would have been clearly included. But Boston was not in agreement and stated that the provisions of Article 156 (3) have to be read in a manner so as to reflect the consequences of voting against your party list.
Datadin reasoned that Boston’s contention was clearly not the case. “Cleary there are some differences. In a majority of time, does everybody go along party lines? Everywhere in the world that happens. There are certainly times everywhere in the world where you do not go exactly as your party wishes,” Datadin told the panel of judges.
Datadin asked, “Do you have the power in Guyana to say that if you do not do that I will recall you from the list?”
“Yes,” he responded to his own question, adding that it has happened before. He added that, “There are instances where you have done your conscience, your freedom and it has not happened.”
“And your vote has been recorded as a bad vote,” said Justice Wit. Datadin replied in the affirmative and noted that in this case a government has been put out of power; something it wished did not happen.
“(The government) would like to stay in power…do what they can do to perhaps delay, drag. I don’t want to say that’s what is happening.” He said that the consequence of the passage of the no-confidence motion is unavoidable. There was a vote of 33 to 32 members and elections must be held within three months from its successful passage of the no confidence motion, he urged.
But Courtenay wasn’t buying their arguments.
CROSSING THE FLOOR
Senior Counsel Boston further addressed the point that the anti –defection provision (Article 156 (3) 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, who 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.” Boston 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.”
“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 Senior Counsel declared in the face of questions by Justice 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 Justice Hayton asked.
“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,” Boston contended.
The Judge noted, however, that the law should therefore be simple and clear as it relates to the issues.
Courtenay 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
Ram’s lawyer Kamal Ramkarran did not agree with Courtenay’s submissions.
In fact, Ramkarran reasoned, “Every single vote of confidence or vote of no-confidence…whatever you call it means that somebody has to cross the floor, in every country, not only in Guyana. It means that somebody has to vote against their list. What is distinct is that you can do it but there may be consequences and those consequences are set out in Article 156 (3) may or may not happen depending on how serious the party which forms the list considers the matter.”
On this premise, Ramkarran maintained that the no confidence motion was validly passed. Expressing confidence that the CCJ will rule in his favour, Ramkarran said that the provisions of Article 106 (6) and (7) of the Constitution are clear. He said that Government was defeated and that the CCJ order elections be called immediately since as at as at May 10, Guyana has been in breach of the Constitution for 45 days.
Further, the lawyer dismissed arguments by State lawyers who argued that Government was guaranteed a five-year term in office under certain provisions of the Constitution.
Responding to a question posed by Justice Anderson as in relates to fix term governments like the United States, Ramkarran made it clear, “In Guyana under Article 61 the President can dissolve Parliament and call elections at anytime. So we don’t have a fix term government in Guyana.”
ELECTIONS BY NOVEMBER
During Thursday’s arguments, the Guyana Elections Commission (GECOM) through its lawyer, Stanley Marcus, told the CCJ that the Constitutional body will be ready to hold general and regional elections by November 2019, the earliest. While the CCJ judges stressed that GECOM should always be in a state of readiness for elections, Marcus said that funds and a new voters’ list from house-to-house registration are needed.
Justice Saunders queried, “If the vote of no-confidence was valid and if parliament ought to be dissolved and if the parties don’t agree to extend the three-month period then we have a choice between a situation where with each passing day beyond that three-month period—a dagger is being thrown at the constitution everyday and on the other hand having an election which is a little bit less than perfect. Now, which of those two options is better for democracy?”
Responding, Marcus said that fairness and democracy cannot be forgone for speed. Asked by Justice Saunders what would happened if Parliamentarians do not come to a two-third majority support for the holding of elections beyond the three month timeframe as prescribed under Article 106 (7) of the Constitution, Marcus said, “There will be a constitutional crisis if you cannot get the parliamentarians to act in a responsible and mature way.”
Article 106 (7) reads, “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 by resolution supported by not less than two-thirds of the votes of all the elected members of the National Assembly, and shall resign after the President takes the oath of office following the election.”
Also on Thursday, Williams guaranteed the CCJ that funding will be provided to GECOM for the holding of elections if the court overturns the ruling of the Court of Appeal, invalidating the passage of the no confidence motion.
President Saunders asked Williams, “You as Attorney General…do we have your commitment that the necessary monies will be made available to the commission as and when it is necessary for those monies to be made available?”
The Attorney General responded in the affirmative and disclosed that the President has also committed to ensuring that monies are provided to the electoral body. But Williams cautioned of the consequences if GECOM was not prepared to hold credible elections.
“…Common sense dictates that you should be advised by the Chairman of GECOM as to their readiness to deliver credible elections in Guyana. It is not just any old elections. As I said to you the consequences are dire,” Williams noted. The Attorney General protested that the works of GECOM was being affected by the constant walk-outs of opposition elections commissioners.
However, the CCJ President reminded Williams, “We three, (the) courts, President and his Cabinet and the National Assembly…we need to make this thing work and we need to make it work according to its letter and its spirit. Datadin, on the other hand, admitted that the electoral commission could delay the holding of general and regional elections to some extent.
While GECOM’s lawyer insisted that house-to-house registration has to be held before general and regional elections are conducted, Datadin said, “There is nowhere in the law that house-to-house registration has a statutory underpinning. It used to be there. It was removed for a reason,” he said.
GECOM has since indicated that it needs $3.5B to hold elections, and Courtenay begged of the CCJ to refrain from setting time span for holding elections, but rather leave it for the Guyanese authorities to decide.

---

---