By Feona Morrison
Lawyers will make submissions to the Caribbean Court of Justice (CCJ), next Monday, June 24, in relation to consequential orders stemming from the rulings handed down by the regional court yesterday.
The Court ruled that the Opposition-sponsored No-Confidence Motion (NCM) against the Coalition Government was successfully passed on December 21, 2018, having acquired a majority of 33 votes from the 65 members in the National Assembly. It also determined that the unilateral appointment of the Guyana Elections Commission (GECOM)’s Chairman, Justice (Ret’d) James Patterson was flawed.
Delivering a summary of the landmark rulings was the CCJ’s President Justice Adrian Saunders who, along with Justices Winston Anderson, Jacob Witt, David Hayton, and Maureen Ragnauth–Lee, heard marathon arguments in the consolidated appeals on May 09 and 10 at the court’s Trinidad-based headquarters. The judgments of the panel were in most cases concurring, unanimous and in majority.
In ruling that the motion was successfully passed, the CCJ dismissed government’s contention that 34 votes were required. The CCJ rejected government’s formula which provided that 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 be rounded off to 33, and add one more, making it 34 votes –an absolute majority.
The CCJ held that, “The requirement for all the elected members of the National Assembly referred to the total number of votes or seats in the Assembly irrespective of the number of members who actually vote. In determining that the half plus one rule is not applicable, the court determined, “Since the National Assembly comprised an odd number of members, (that is 65), when all the members of the National Assembly are present and vote, all that is necessary is clearly in the court’s view, at least 33 votes.”
The CCJ said, “On the 21st December, 2018 we would venture to suggest that every member of the Assembly knew this. The Clerk certainly knew it. And so too, did the Speaker, who announced that, the motion had been passed. Since the Assembly comprised an odd number, there is no need to imply into the Constitution any formula for defining a majority as being “half plus one”.”
While Chief Justice Roxane George ruled that only 33 votes were needed for the motion to be passed, the Court of Appeal overturned her ruling, and adapted government’s half plus one formula, when it ruled that the motion was not validly carried since, 34 votes were not obtained.
According to the CCJ, one does not have to study law to appreciate that the word “majority” means the greater of two parts. The court noted, “So, for example, it is trite that when a Court of Appeal sits as a panel of three, a majority decision is 2:1. The Chief Justice (Roxane George) was therefore right when she adjudged that a majority from among 65 members is a minimum of 33.”
VOTE WAS VALID
Moreover, the CCJ ruled that now-expelled AFC Parliamentarian Charrandass Persaud’s “yes” vote on the NCM against the government was valid.
Having concluded that the Court lacked jurisdiction to impeach Persaud’s election (to the National Assembly), the Court found that there was no need to ascertain whether Article 165 (2) preserved the validity of his vote on the motion. However, even if the Court had jurisdiction to declare Persaud’s election to the National Assembly void from the outset, the Court agreed with the High Court and Appeal Court that Article 165 (2) would have preserved the validity of his vote.
Article 165 (2) reads, “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.”
“This Article protects proceedings of the Assembly from being invalidated due to the participation or presence of any person who was not entitled to participate in or be present at those proceedings. It would obviously apply where, after voting took place on a motion of no confidence, it is later discovered that a member of the Assembly who was present and who voted on the motion was not entitled to be a member of the Assembly,” the CCJ reasoned.
Moving on, private citizen Compton Reid had argued that Persaud was disqualified to be elected as a member of the National Assembly, and was therefore not qualified to vote as member owing to him being a dual citizen of Guyana and Canada. Reid, through Senior Counsel Neil Boston, submitted that Persaud sitting in the National Assembly was in violation with Article 155(1) (a) of the Constitution.
It states, “No person shall be qualified for election as a member of the National Assembly who – (a) is, by virtue of his own act, under any acknowledgment of allegiance, obedience or adherence to a foreign power or state…” Clearly, Persaud was not the only person holding dual citizenship at the time in the National Assembly.”
The CCJ was keen to point out, “Purely as a matter of interest, Mr. Persaud’s position was not singular. There were other elected members who, like him, were citizens of other countries when they had their names placed on their party’s List on nomination day in 2015. Following the imbroglio surrounding the December 21 vote and the filing of the court cases, most or all of these persons have since resigned or been removed from the National Assembly. Mr. Persaud fell into that category. He was removed from the National Assembly on 3 January 2019.”
The CCJ, in a majority ruling, held that it had no jurisdiction to inquire into Persaud’s disqualification from being a member of the National Assembly.
According to Justice Saunders, “The Constitution specifies that it was for Parliament and not the Courts to lay down the practice and procedure in relation to the Courts jurisdiction and powers in this regard. Although the Constitution gave the Courts exclusive jurisdiction to determine questions of the qualification of members of the National Assembly, the Courts exercised that jurisdiction strictly in keeping with the provisions of Acts of Parliament.”
He added that the specific Act in this regard would be the National Assembly (Validity of Elections) Act, which according to him, required that a petition procedure (which was intended to be an exclusive one, that Mr. Persaud was not qualified for running for office) be presented within 28 days after the results of the 2015 elections, out of which the matter arose, and published in the Official Gazette.
The Court held by a majority that it had no jurisdiction to consider the question of the validity of a member’s election to the National Assembly, by any other means. Since these cases were filed in January, the Court held that the challenge to Mr. Persaud’s election to the Assembly had been out of time, and as such, it lacked jurisdiction to access whether Persaud was disqualified at the time of his election.
Expounding on the reasoning behind such a ruling, the CCJ said it found that historically, disputes over the qualification of members to legislative assembly, were not triable by the court, but determined in the National Assembly itself. However, he said, matters of such nature eventually became entrusted in the courts.
Justice Saunders pointed out that Article 163 (1) gives the High Court exclusive jurisdiction to determine any questions regarding the qualifications of any person to be elected as a member of the National Assembly. He went on to say that the Courts must exercise that jurisdiction within a particular framework established by the Constitution.
This Article deals with the determination of questions as to membership and elections.
While the Court said that Article 163 (4) authorises Parliament to make provisions with respect to the circumstances and manner in which, and the conditions upon which proceedings for the determination of any questions arising under Article 163 maybe instituted in the High Court, it said that Parliament may also provide the consequences of the determination of any such questions.
The court, therefore, held there was no need to consider whether Mr. Persaud’s seat in the National Assembly ought to be declared vacant in Article 156 (1) (d) of the Constitution. The President said that this was so because, “Article 156 (1) (d) applied to supervening events that caused a person to become disqualified while he/or she was a member of the National Assembly, and Mr. Persaud’s disqualification clearly arose before he became a member.”
CROSSING THE FLOOR
Justice Rajnauth-Lee in her judgment stated, “There was nothing which prevented Mr. Persaud from voting in favour of the no confidence motion.” The Judge urged all to bear in mind that the rule of law was an important guiding constitutional principle of a sovereign democratic state like Guyana.
Rejecting submissions by Senior Counsel Neil Boston and others, which suggested that Persaud was absolutely required to vote against the motion of no confidence along with other members of the government unless the parties were granted permission for a “so-called conscience vote,” the CCJ President stated that the court found that nothing in Article 156 (3) or anywhere else in the Constitution prohibited Persaud from voting against the government on any particular measure. Such a vote may well cause a representative from his list to remove him from the National Assembly, but his vote would still be valid.”
Justice Witt in a concurring judgment stated, “Of course, I realise that those whom we call floor crossers or ship jumpers, or by any other name, do not always have the best of reasons (probably in most cases not) for so doing, so there could be very valid reasons for anti-defection provisions in order to keep the government stable and to ensure continuity of governance.”
However, Justice Witt said that where these provisions threaten to become too strict, they may well lead to strangling whatever democratic fervour is left.
He added, “It is not easy to find a proper balance between the many countervailing constitutional values that make a democracy. Some would say a perfect balance is not possible. But in any event, it is better to have an imperfect democracy than a strangled one. That much is required by Article One of the Constitution, that Guyana is a democratic sovereign state.”
LAW ALLOWS FOR NO-CONFIDENCE MOTION
Furthermore, the CCJ was tasked with determining whether a No-Confidence Motion is provided for under Article 106 (6) of the Constitution. Justice Saunders reminded that Attorney General Basil Williams and Joseph Harmon’s lawyer had argued that this article only applies to motions of confidence.
According to Article 106 (6), “The Cabinet including the President shall resign if the Government is defeated by the vote of a majority of all elected members of the National Assembly on a vote of confidence.”
The consequences of Article 106 (6) are laid out in Article 106 (7) which says, “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.”
President Saunders said, “They (Williams and Harmon) highlighted that the Article in the Constitution used the phrase on a “vote of confidence.” And they submitted that there was a fundamental difference between a “motion of confidence” and a “motion of no confidence.” It was argued that only a member of the government can move motions of confidence and that the Article requirement for the government to resign and elections to be held did not apply to motions of no-confidence.”
“The court rejected these submissions,” Justice Saunders made clear. He reasoned that Article 106 (6) gave effect to the fundamental principle of responsible or accountable government; a principle that required the government to resign when it no longer enjoyed the confidence of Parliament.
According to the CCJ Judge, “Whether Article 106 (6) used ‘a motion of confidence’ or a ‘motion of no confidence’ was unimportant as these were mere linguistic differences denoting different sides of the same coin. There was nothing in Article 106 (6) that prevented any member of the Opposition from moving a motion of no-confidence. Article 106 (6) did not hinge on the provisions of the anti-defection regime set out in Article 156 of the Constitution.”
Article 156 speaks about the tenure of seats of members of the National Assembly.
“Motions of confidence are used strategically, whether initiated by the Government or the opposition, to serve their own political ends. In the one case, the aim of the government supporter moving the motion may be to demonstrate Parliament’s confidence in the government at a period when the government or the state as a whole is experiencing challenging times. Alternatively, the aim of an opposition supporter may be to embarrass or bring down the government when it is thought that confidence by the Assembly in the government is shaky. Any member of the Assembly is authorized and entitled to move any such motion before the Assembly.”
The Court found that Article 106(6) recognised this by not making a distinction between a confidence motion that is usually brought by a member on the government side, and a confidence motion (or more accurately defined as a no confidence motion) invariably brought by a member of the opposition. Each of these motions is subsumed under the broad heading “confidence motions.”
Making further addresses in relation to the anti-defection regime, Justice Saunders continued, “That regime was separate and distinct from the concept of responsible government, and merely sort to prevent a member of the National Assembly from crossing the floor or having been elected to a particular list from disassociating him/herself from that list and continuing in parliament as an independent member.”
Nevertheless in his judgment, Justice Anderson said there may be need for drafters to revisit the language of ‘confidence motions’ provisions in the Constitution to bring about more clarity. The CCJ is Guyana’s final court of appeal.
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