Bar Association says no-confidence motion validly passed

-cabinet subcommittee to consider argument that 33 ‘not majority’

The Bar Council of the Guyana Bar Association yesterday said that Friday’s motion of no-confidence against the government was validly passed even as the government says it will review arguments that the 33 votes did not constitute a majority.

The Bar Council said in a statement  it noted the passage in the National Assembly of the motion in the name of the Leader of the Opposition on a vote of confidence.   It noted also that the result of the vote has been accepted by the Government and the President.

Therefore, the statement said that National and Regional elections are therefore constitutionally due by the operation of Article 106(6) of the Constitution no later than Thursday, 19 March 2019 on the expiration of 90 days from 21 December 2018, when the motion was passed.

“The Bar Council has noted various attempts to argue that the motion was not validly passed in the National Assembly, including from Nigel Hughes, a prominent Attorney-at-Law who contends that a positive vote of 34 members of the National Assembly was required for the passage of the motion.

“The Bar Council rejects as erroneous such contentions that the motion was not properly passed or that the vote is, for any reason, invalid.

“The Bar Council urges that the results and consequences of the motion be accepted and that urgent preparations for elections by the Elections Commission be started.

 “The giving of effect to any contentions that there is some possibility other than elections being held within 90 days of the passage of the motion could lead to instability and our democracy must be protected by the unambiguous adherence to the rule of law and to the provisions of Article 106(6) of the Constitution”, the Bar Association declared.

.The cabinet subcommittee that was set up on Monday to look at the legal implications of the no confidence vote will be considering the argument advanced by Hughes that 33 votes does not constitute a majority in the National Assembly, Minister of State Joseph Harmon said yesterday.

Hughes, a prominent attorney is insisting that an absolute majority is half plus one. “Half of the National Assembly is 33 members not 32,” he said in a Facebook post on Monday.

In another post, he contended “There are sixty five members of the house. Mathematically one half of the house is 32.5 members. There is no such thing as a half member so half of the house is 33 members. This is because you have to round up to identify half of the house. For a no confidence motion to pass and be valid the motion has to enjoy more votes that one half of the full house i.e. 34 votes. The house voted 33:32. 33 is a rounding down of what constitutes half of the house. The motion consequently was not carried. But in classic Guyana style we have embarrassed ourselves again.”

Several in the legal fraternity have expressed agreement with his view and have hinted at the possibility of a constitutional application being filed to challenge the passage of the motion. However there are others who disagree strongly saying that if one was to take Hughes’ explanation seriously it would mean that the National Assembly will have 66 members and not 65.

Contacted yesterday, Harmon told Stabroek News said that the committee is looking at the argument being made that 34 votes constitutes a majority.

The sub-committee which includes himself, Minister of Legal Affairs, Basil Williams, Minister of Public Security Khemraj Ramjattan, Minister of Natural Resources Raphael Trotman and Vice President Carl Greenidge will today report its findings to cabinet. Harmon stressed that it will be up to cabinet to decide when that information will be made public.

Harmon reiterated that the committee is looking at all the options and opinions on the subject matter. “Then we will draw our position as a view of all of them,” he said.

Former Attorney General Anil Nandlall has expressed disagreement with Hughes’ view.

He said that the argument being advanced is not a new one. “It came to me as Attorney-General when our government was in a minority. I did not pay much attention to it then. Nor do I accept it now,” he said.

Setting out his reasons, he said that the Speaker has already ruled that the Motion was carried.

“Both the Prime Minister, on the night that the Motion was carried and the President the following day, have publicly indicated that the Motion was carried, that the government has fallen and that they will abide with the Constitutional prescription which flows therefrom,” he said.

Nandlall pointed out that like many other Commonwealth jurisdictions, apart from the Constitution, there is no other legislation in existence which governs the way that Parliament and the National Assembly function.

He noted that Article 168(1) of the Constitution provides that, “…all questions proposed for decision in the National Assembly shall be determined by a majority of the votes of the members present and voting”. ‘Members’ in this context, he said obviously means elected members, as non-elected members cannot vote.

Further. He pointed out that Article 106(6) of the Constitution provides that: “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”.

So the pivotal question which arises is what amounts to a majority in an Assembly of sixty-five (65), he said adding that “The term majority is not defined by the Constitution. It is not a legal term of art. Therefore, one has to look at the literal grammatical meaning of the word and the way it has been interpreted in and for the purpose of voting in our National Assembly over the years.”

Referencing the New Oxford Dictionary of English, he said that majority is defined there as  “the greater number…” while the West’s Legal Thesaurus/ Dictionary defines this  as “the greater number; more than half, plurality…”.

“It is clear that thirty-three (33), is a larger number than thirty-two (32), it is the plurality and it is more than half of sixty-five (65). As I indicated above, the law and rules governing Parliament and the National Assembly largely evolve and devolve out of ‘practice’. Hence the leading parliamentary manual in the Commonwealth is titled “May’s Parliamentary Practice”. Therefore, it is incumbent upon us to examine the parliamentary practice in Guyana in relation to voting,” he said.

Nandlall, an opposition MP who voted on Friday, submitted that the practice has always been that thirty-three votes are sufficient to carry any motion or any bill put forward for passage in the National Assembly. It is for this reason that APNU and AFC, with their one seat majority of thirty-three, he said  were able to cut the annual budgets in the tenth Parliament when the PPP/C had only thirty-two seats and it was by the same measure that they were able to vote down the legislative changes required for the AML/CFT laws, the Amaila Falls Project among others.

“More importantly, if thirty-three (33), is not a majority in a sixty-five (65) members National Assembly then APNU+AFC could not have lawfully formed the Government after the 2015 Elections. Neither could they have passed any bills or any budgets in that National Assembly,” he said before adding that all he mentioned previously were only possible because by the parliamentary practice, that is that thirty three was always considered a majority in our sixty-five members National Assembly.

“No case cited from any foreign land can change this parliamentary and constitutional reality,” he stressed while adding that significantly, the Constitution speaks not of an ‘absolute majority’ but of a ‘majority’. These terminologies are different and they are guided by different principles, he pointed out.

“By analogy, in the Judiciary, the decision by 2 judges in the Court of Appeal is and has always been a majority in a Court of 3 Judges. I suppose in due recognition of the reality that we do not have “a half judge”” he stressed.

The `yes’ vote by government parliamentarian Charrandas Persaud on Friday in favour of the PPP/C’s no confidence motion will result in fresh elections within 90 days.

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