March 15 2019

The Court of Appeal has announced that it will soon be handing down a ruling on the appeals filed by government to challenge the validity of the December 21st, 2018 passage of the no-confidence motion in the National Assembly, which has triggered a bitter clash over the holding of new polls.

Following the conclusion of oral arguments yesterday afternoon, acting Chancellor Yonette Cummings-Edwards in-formed that notices will be sent “shortly,” informing parties of the date for decision.

At yesterday’s hearing, the lawyers for the government and the respondents in the appeals sought to solidify their respective contentions on the judgments of acting Chief Justice Roxane George-Wiltshire, who upheld the passage of the motion. 

In his closing remarks, attorney Anil Nandlall, who represents Opposition Leader Bharrat Jagdeo, by whom the motion was sponsored, called upon the court to order that elections be fixed in accordance with the Constitution, no later than March 21st.

Article 106 (7) of the       Constitution specifies that elections 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.

From the passage of the motion back in December, the three-month period will expire on March 21st and Nandlall has surmised that elections are not likely going to be held before that date.

He noted, too, that with no polls and no extension of that time, the result will be a great constitutional violation. 

Against this background, he called on Chancellor Cummings-Edwards and Justices of Appeal Rishi Persaud and Dawn Gregory to order elections be fixed by the constitutional deadline.

He said that as guardian of the constitution, the court has a duty to ensure that the Constitution is complied with, stating that all, without exception, are to “bend and bow” to it.

He stressed that the appellate court has both the power and jurisdiction to make such orders.

The Guyana Elections Commission (GECOM) has said, among other things, that it would be unable to hold elections within the three-month timeframe, citing a lack of funds which government has said will have to be remedied by going to the National Assembly for approval.

Nandlall has said that there is no need for the National Assembly to approve any funds if GECOM so requires it, since the constitution in Articles 218, 219 and 220 provides for resort to the Consolidated Fund.

He has advanced that the Consolidated Fund is specifically for circumstances including, but not limited to, the case where the government collapses by a no-confidence vote, rendering the dissolution of parliament and monies are needed.

Still in place

During his final presentation yesterday, however, Attorney General Basil Williams argued on behalf of the government that there are certain criteria which must first be met before resort can be had to the Consolidated Fund.

According to him, the fund cannot be accessed since the parliament is still in place and has not been dissolved, which means that the National Assembly can still be approached. Williams said that the fund will become accessible in cases of emergency when there are unforeseen circumstances, such as war and disasters and the like.

With a subsisting parliament, he argued that the criteria for accessing the fund had not been met. “You will have to go back to the National Assembly,” he stressed.

Nandlall has argued that in accordance with Article 106 (6) of the Constitution, the Cabinet and President ought to have already resigned given the passage of the no-confidence motion.

Williams, however, has refuted this contention, stating that as a central pillar to the smooth running of the affairs of state and democracy, and having regard to Article 106 (7), it could not be the intent of the framers of the constitution that the “government” resigns.

To this, Nandlall said that there was a distinction between Cabinet and the President with that of government. Williams, however, held the view that there is no distinction, while stating that there is a symbiotic relationship among all three.

Article 106 (6) states, “The Cabinet including the President shall resign if the Government is defeated by the vote of a majority of all the elected members of the National Assembly on a vote of confidence.”

Further, Article 106 (7) states, “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 an election.”

In her January 31st judgment, the Chief Justice ruled that the 33 votes in favour of the motion constituted the needed majority and should have triggered the immediate resignation of the Cabinet, including the President.

The motion was declared passed by Speaker of the National Assembly, Dr. Barton Scotland following a vote in its favour by then APNU+AFC parliamentarian Charrandass Persaud on the night of December 21st.

Government had initially accepted that the motion was properly carried but later backtracked, claiming the need for an “absolute majority of 34” from the 65-member National Assembly and that Persaud’s vote was invalid given his dual citizenship.

Government’s position has since been that the incorrect formula had been utilised on December 21st for calculating the votes to validate passage of the motion, which it contends lacked the needed majority of elected parliamentarians.

Arguing on government’s behalf earlier this week, Queen’s Counsel Dr. Francis Alexis stated that in Guyana’s 65-member House, half would result in a fraction of 32.5. If it is to be rounded to the next whole number, that figure will be 33 and in accordance with the practice and the application of the meaning of majority, one has to be added to calculate a majority.

According to him, the majority legally required in Article 106 (6) of the Constitution for a vote of no-confidence to pass needed to be 34 or more of all elected members of the National Assembly and not 33.

Rejecting this line of argument, however, Nandlall said that simple mathematics needed to be applied in determining what would be the majority of the 65-member House.

The answer, he said, could only be 33, which has always been recognised and used by both sides of the House for the passing of bills and the like. As a matter of fact, he said that it was that very majority that was used by the now government when in opposition to threaten a no-confidence motion against the then PPP/C-led government.

He said that the use of the word “majority” in Article 106 (6) is to be given its plain literal meaning as it presents no ambiguity and that it ought not to be complicated as Williams had previously advanced, as needing any “absolute majority.”

To this, he said that Alexis was attempting to implant the word “absolute” into the provision, which cannot be condoned.

Nandlall told the court yesterday that whenever the word “majority” is used unqualified, it is referring to a “simple majority,” which means more than half or more than 50% of the whole.