“This application is not only wholly misconceived, it is vexatious and an absolute abuse of the process of the court,” said Chief Justice Roxane George as she struck out an application mounted by Opposition lawyer, Anil Nandlall.
He had asked the court to grant an order compelling Cabinet, including the President to resign in light of the successful passage of the No-Confidence Motion (NCM) against the government.
During her ruling yesterday, the Chief Justice ordered Nandlall to pay substantial cost, $500,000, to Attorney General Basil Williams, who was listed as the Respondent in his application. The premise of Nandlall’s application was that Government continues to violate the Constitution as it refuses to resign despite being defeated by a No-Confidence Motion, which was passed as long ago as December 21, 2018 in the National Assembly.
In fact, Kamal Ramkarran contended that the Caribbean Court of Justice (CCJ), which validated the passage of the motion against Government on June 18, erred when it omitted to issue an order compelling the resignation of Cabinet, including the President. He had reasoned that the CCJ in excluding to grant such an order was of the view that the political actors will act in accordance with the Constitution, the supreme law, moreso Article 106 (6) and 106 (7).
The Chief Justice, however, in refusing to grant the order sought by Nandlall, relied on paragraph eight of the CCJ’s judgment on Consequential Orders in the No-Confidence Motion appeals made on July 12.
That paragraph reads, “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 Cummings-Edwards, citing Hogg1, the Canadian constitutional expert, was right to note that:”
“…The government continues in office as a caretaker government or an interim government until the next elections ensue and a President is appointed (or reappointed) depending on the results of that election.”
The paragraph continues, “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 the Chief Justice, “In my view and I so find in [paragraph] 8 of the judgment, the CCJ did make a pronouncement on the resignation of the President and the Cabinet. Given the language used by the CCJ, it is evident that the effect of the NCM was the immediate resignation of the Cabinet, but the court clearly stated that notwithstanding this, the tenure in office of the Cabinet including the President, as well at the government as a whole, “is on a different footing”—is that of being in a caretaker mode consequent on the passage of the said NCM.”
In this regard, the Chief Justice held that there could not have been, and cannot be any requirement for 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 law consequent on the NCM.
The Chief Justice noted that since an order compelling Cabinet, including the President was a live issue before the CCJ, the High Court cannot say that the CCJ omitted to make an order which a party or counsel for a party in the appeals thinks the court should have made, more so one that was actually sought; or that it somehow fell into error in its pronouncement or in its consideration of the effect therefore as Nandlall has urged.
In any event, Justice George reminded that her court is bound by the pronouncements and decisions of the CCJ pursuant to the doctrine of precedent, adding that the pronouncements of the CJJ and the orders made in its Consequential Orders must be read dispassionately and objectively.
She added, “While [Nandlall] may be dissatisfied with the conclusion of the CCJ—he cannot seek to overturn or reinterpret it by filing an application such as this. The CCJ did not omit to pronounce on the issue as has been contended. On the contrary, the CCJ emphasised that it was making an important point in stating that the Cabinet including the President and the government are to act as a caretaker or interim government.”
During a hearing for Nandlall’s application, Solicitor General Nigel Hawke, who appeared for Williams, had argued that Nandlall’s application is a wanton abuse of the court process. Hawke submitted that the issues in Nandlall’s application were Res Judicata (already litigated) as the CCJ, the nation’s highest court, had already made its pronouncement on them; and in doing so refused to grant coercive orders against the Cabinet to compel its resignation.
Agreeing with the CCJ, Hawke had always maintained that government remains in office, but on a different footing, in a caretaker status. The Solicitor General argued that if Ramkarran is of the view that the CCJ erred, he cannot come to the High Court, a lower court, looking for redress; he has to go back to the CCJ.
He said that Ramkarran was basically asking the lower court to review a final decision of the CCJ. Hawke contended that Ramkarran’s application is a clear attempt to turn the hierarchical structure of the judiciary “upside down.” While Williams said that government is happy with the Chief Justice’s ruling, Nandlall, who is obviously displeased, said he will file an appeal.
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