Chief Justice Roxane George is set to hear extensive arguments on Monday, September 30, in an application filed by Former Attorney General Anil Nandlall asking the court to grant an order compelling Cabinet, including the President, to resign and give effect to the No-Confidence Motion which was successfully passed in the National Assembly on December 21, 2018.
Similarly, an application filed by Attorney General Basil Williams for Nandlall’s application to be struck out also comes up for hearing that same day. At a Case Management Conference (CMC) yesterday at the Victoria Law Courts, Justice George set out strict timelines for lawyers to follow in terms of filing written submissions.
Saying that an application filed by Nandlall for an order compelling Cabinet, including the President to resign is an abuse of process, Attorney General Basil William is asking the court to strike it out and award him substantial costs. In a Notice of Application (NOA), Williams says that the issue has already been dealt with by the Caribbean Court of Justice (CCJ) which refused to make such an order.
Instead, the court he said, declared that Cabinet and President remain in office but on a different footing in the nature of a caretaker Government.
Nandlall in a Fixed Date Application (FDA) filed on Monday, August 26, in the alternate is seeking a Mandatory Order compelling the Cabinet, including the President to give effect to the resignation of the Cabinet, including the President, which occurred by operation of law, consequent upon the government being defeated by the No-Confidence Motion pursuant to Article 106(6) of the Constitution of Guyana.
Further in the alternative, he is seeking a Conservatory Order or an order restraining the Cabinet, inclusive of the President, from meeting, making decisions as, or performing the functions of Cabinet, consequent upon the Government being defeated by the vote of a majority of all the elected members of the National Assembly on a vote of no- confidence on the 21st day of December, 2018, in accordance with and pursuant to Article 106(6) of the Constitution of Guyana. He is also asking for such further orders that the court deems fit and costs
Williams, however, argued that the orders being sought by Nandlall is an abuse of the process of the court, an affront to the doctrine of stare decisis or rule of precedent and the court order ought not be granted since it requires the court to make orders which the CCJ has ruled on already. He further argues that the claims by Nandlall are moot and clearly academic and a wanton abuse of the process of the court.
According to Williams, the application filed by Nandlall is made as a matter of public interest and as Attorney General he is constitutionally mandated to protect the public interest. Williams, therefore, is arguing for the application to be dismissed as being an abuse of the process of the jurisdiction of the High Court.
The premise for Nandlall’s application is that a No-Confidence Motion that was tabled by Leader of the Opposition Bharrat Jagdeo which was successfully passed by a vote of a majority of all the elected members of the National Assembly, and in consequence thereof, Resolution 101 was issued by the Clerk of the National Assembly, certifying that the said vote was lawfully and properly passed.
In court documents, Nandlall has specifically referred to Article 106 (6) and 106 (7) of the Constitution of Guyana. According to Article 106 (7), “The Cabinet including the President shall resign if the Government is defeated by a vote of majority of all the elected members of the National Assembly.”
He is also relying on Article 106(7) which adds, “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 determine, and shall resign after the President takes the oath of office following the election.”
Nandlall argues that nine months has already elapsed since the Cabinet, inclusive of the President, has failed, and or neglected, and or omitted, to resign in accordance with the unambiguous prescription and mandate of Article 106(6) of the Constitution, the Supreme Law of Guyana.
In an affidavit in support of the NOA, Deputy Solicitor General, Debra Kumar says that the CCJ has already pronounced on the issue of the resignation of President and Cabinet in its consequential orders.
She said that the CCJ opined, “It is important, however, that the Court makes this point. In mandating that the Government shall remain in office notwithstanding its defeat and the resignation of the President and the Cabinet, Article 106 envisages that the tenure in office of the Cabinet, including the President, after the Government’s defeat, is on a different footing from that which existed prior to the vote of no confidence. Chancellor (of the Judiciary Yonette) Cummings-Edwards, citing Hogg, the Canadian constitutional expert, was right to note that: By convention, the government is expected to behave during this interim period as a caretaker and so restrain the exercise of its legal authority. It is this caretaker or interim role that explains the three month deadline, in the first instance that the Article lays down, in principle, for the holding of the fresh elections.”
According to Kumar, The CCJ made it clear that Article 106 (7) also envisages the constitutional players extending the time for the holding of elections : “The Article goes on to state, among other things, that notwithstanding such resignation, the Government shall remain in office and that an election shall be held 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 determine …”
Kumar argues that Nandlall’s application is made in keeping with the overriding objectives of these that Part 1:01 (e) of the New Civil Procedure Rules which provides: “The overriding objective of these Rules is to enable the Court to deal with cases justly…allotting to the case an appropriate share of the Court’s resources while taking into account the need to allot resources to other cases.”
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