Former Attorney General and Opposition-aligned lawyer Anil Nandlall has insisted that an application by him for a court order compelling Cabinet, including the President to resign is not an abuse of the court process as is being contended by Attorney General and Minister of Legal Affairs Basil Williams SC.
Nandlall says that the country’s highest court has validated the passage of the December 21, 2018 No-Confidence Motion against the government which by operation law is deemed resigned.
Nandlall, in written submissions to the court, which is scheduled to hear his application on September 30 said, “If remedial proceedings are filed every day, they cannot amount to an abuse of process since the breach continues and every citizen has a right to approach the Court and it continues to be the duty of the Court to hear and determine each action filed or to hear them together, if it is convenient to do so. The rule of law guarantees every citizen unhindered access to the Court for violations of the law, moreover, the supreme law.”
“The position becomes even graver and the responsibility of the Judiciary becomes even more sacrosanct when the violations are being committed by an organ of Government, especially the Executive and this must be remedied by the Court if Guyana is to be considered a democracy where the rule of law is applied.”
The Attorney General, in Notice of Application filed earlier this month, asked the court to strike out Nandlall’s application for an ordering compelling Cabinet to resign. Among other things, Williams is contending that the application is an abuse of process since the Caribbean Court of Justice (CCJ) has already made a pronouncement in refusing to make such as order. Williams reminded that the regional court held that Cabinet, including the President remains in office but on a different footing in the nature of a caretaker Government until an election is held and a new President takes the oath of office.
In the alternative, Nandlall 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.
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.
Nandlall in his submissions to the court says, “Either of the orders sought has the same effect. The law, as set out in Article 106(6) of the Constitution, mandates that on the passage of a no confidence motion, which happened on 21 December 2018, Cabinet including the President must resign.” According to him, what Cabinet is and what it does are both defined by Article 106(1) and (2) of the Constitution. He adds that it consists of the President, the Prime Minister, the Vice Presidents and such other Ministers as may be appointed to it by the President.
Nandlall argues that if Government is defeated on a vote of confidence, as happened on 21 December 2018, this body, which is collectively responsible to Parliament for the general direction and control of the Government and collectively responsible for aiding and advising the President on that direction and control, ceases to exist and function.
Against this backdrop, he argues, too, “By the ordinary application both of logic and commonsense, if this body ceases to exist and function, no Ministerial Plenary or Minister sitting in a group can take up its function. On the resignation of Cabinet, no person or group of persons is responsible to Parliament for the general direction and control of the Government and no person or group of persons is responsible for aiding and advising the President in the general direction and control of the Government.”
In Nandlall’s view, if this was not so, then there would be no consequences of the defeat of government on a vote of confidence and the President could simply replace the body responsible for aiding and advising him with a body of a different name and that body would be collectively be responsible to Parliament for the general direction and control of the Government.
“In such a situation, Article 106(6) of the Constitution, which is worded in simple and clear language, would have no meaning,” Nandlall points out in the lengthy submissions.
He continued, “In order to uphold the rule of law and to ensure that the judiciary recognizes that the Constitution continues to have meaning and is still the supreme law of Guyana, it is required that a mandatory order be granted compelling Cabinet including the President to obey the law and give effect to its resignation, whether that happened by operation of law or is required to happen by the doing of a positive act. The primary allegiance of the judiciary is to the Constitution. This was recognized nearly forty years ago in Guyana and Judges have repeated it time and time again.”
Further in responding to the Attorney General’s arguments that the issues being ventilated by him is res judicata, Nandlall, said, “As the Court is enjoined to apply principles which give effect to the rule of law and uphold the Constitution rather than permit its violation, arguments that an application to end the continued violation of the Constitution is an abuse of the process of the court or subject to the doctrine of res judicata should be given very short shrift.”
He sought to clarify that no Court has previously been asked in the filed documents (Fixed Date Applications and Notices of Appeal) for a mandatory order compelling the resignation of Cabinet. What happened in fact, Nandlall stated, is that the CCJ arrived at its decision on the validity of the resolution that the National Assembly had no confidence in the Government and issued its judgment and then asked the parties to suggest to it the consequential orders which should be made.
According to the former Attorney General, in the consolidated No-Confidence Motion appeals heard by the CCJ, a possible consequential order was submitted which sought among other things an order directing the Cabinet to resign. He said that the apex court omitted, rather than refused to make such an order in trusting that the constitutional actors would obey the guidance of the Court and the directions of the Constitution.
It is his contention that the CCJ fell into error since there has been no compliance either with that guidance or with those directions requiring the resignation of Cabinet and elections no later than three months.
“In determining the consequential orders that it would make, the Caribbean Court of Justice did not consider and then refuse, providing reasons for that refusal, to order Cabinet to resign. It simply seems to have expected that the clear language of the Constitution would have been obeyed rather than determining that an order directing Cabinet to resign could not properly be made as a matter of law.”
In the consequential orders made by the CCJ on July 12, at paragraph (f) it said: “Upon the passage of this motion of no confidence in the Government, the clear provisions of Article 106 immediately became engaged”.
He noted, “Applying commonsense and logic to this paragraph, every person reading it would immediately understand it to mean that Cabinet, inclusive of the President, must resign immediately, or alternatively, was resigned by operation of law.”
To make the position even clearer, Nandlall referred to paragraphs three to five of the court’s judgment in the consolidate appeals.
Because the Court had faith that the persons with duties under the Constitution would faithfully fulfill those duties, having been made aware of the law by the Court, it did not feel it necessary to grant mandatory orders, Nandlall stated that at paragraph seven of its judgment the court underscored: The Court must assume that these bodies and personages will exercise their responsibilities with integrity and in keeping with the unambiguous provisions of the Constitution bearing in mind that the no confidence motion was validly passed as long ago as 21 December 2018.
“Since Cabinet refuses to give effect to its lawful position set out in the no confidence decisions, the only possible next step is to compel it to obey the law,” as unfortunate as that is,” he pointed out in submissions to the court.
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