The Aftermath of the Vote of No Confidence and Preparing for Elections (Final Part)

If the current political controversy is about the control of the anticipated oil revenues and continues to escalate, we would have failed the first test in our attempt to avoid the resource curse.

Before we proceed with today’s article, a few preliminaries as usual. A judge in Wyoming, the United States, has blocked oil and gas drilling on almost 500 square miles because the government failed consider the cumulative effects of climate change. The order follows a similar one issued last month in Montana because inadequate consideration was given to greenhouse gas emissions when issuing leases and permits for oil, gas or coal production.

On 9 May 2013, the concentration of carbon dioxide in the atmosphere reached a record level of 400.03 parts per million (ppm), rising to 412.97 ppm on 19 March 2019. If the planet is to be saved for future generations and to prevent it from becoming uninhabitable for both plant and animal life, urgent and drastic actions are needed at all levels of society – individually, organizationally, nationally and globally – to scale back on the extraction and use of fossil fuels, and switch to renewable sources of energy such as from wind, water and the sun. It is in this regard that the 2015 Paris Accord on Climate Change should be viewed.

On the corruption front, former Brazilian President Michel Temer was arrested last week on corruption charges in what is dubbed ‘Operations Radioactivity’ involving kickbacks of some $471 million in the construction of a nuclear power plant. He had replaced Dilma Rousseff who was impeached and removed from office in 2016 for breaching budget laws, a situation not dissimilar to what we witnessed in Guyana in the run-up to the 2015 elections. In 2017, former President Lula da Silva was convicted on corruption and money laundering involving $1.1 million that he received from a construction company for the renovation of a beachfront apartment. This was in exchange for the grant of lucrative contracts from the state-owned oil company Petrobras. He is currently serving a ten-year jail term.

In an ACCA article of 1 February 2019 entitled ‘Accountants in the anti-money laundering front line’, it was emphasized that accountants are legally bound to identify suspicious money laundering transactions and to report them accordingly in the form of Suspicious Activity Reports (SARs). In order to do so, they are required to have in place systems and controls (including training) capable of identifying and assessing risk; perform client due diligence; monitor existing clients; keep appropriate records; and report suspicious activities both internally to management and the board of directors as well as externally to the competent authority. The article offers the following advice to accountants: ‘Understand risk in your business, submit SARs whenever you have knowledge or suspicion, and remain vigilant – always’.

Now for today’s article. Since the 21 December 2018 vote of no confidence in the Government was passed, we have been carrying a series of articles under the above caption. This was because, until last Friday, the vote of no confidence, as ruled by both the Speaker of the National Assembly and the Chief Justice upon appeal by the Government, was valid. In the circumstances, Article 106(7) became relevant. That article requires elections to be held not later than 21 March 2019 or such later date as the Assembly approves by the votes of two-thirds of all the elected members. However, because the deadline has passed without any approved extension, and more so in view of last Friday’s Court of Appeal ruling, this final article ends our series of articles on the above caption, but not necessarily on the subject.

Letter from GECOM’s Chairman to the President

Last week, the President wrote to GECOM’s Chairman requesting him to submit the Commission’s work plans and programmes as well as an outline of its financial needs to enable him (the President) to assess GECOM’s readiness to hold elections and hence to proclaim a date for such elections. The Chairman responded that the earliest date that elections could be held is November 2019 following the conduct of house-to-house registration of voters. He indicated that GECOM would need an additional $3.5 billion to finance the cost of the elections.

The Opposition-nominated Commissioners had walked out of GECOM’s meeting at which a response to the President’s letter was to have been agreed on. As a result, the Chairman indicated that he consulted with GECOM’s Secretariat before dispatching the letter to the President. These Commissioners insisted that GECOM had enough time to hold elections within the

three-month timeframe stipulated by Article 106(7) of the Constitution, a contention this is not without merit.

On the other hand, the Government-nominated Com-missioners insisted that house-to-house registration of voters was needed before such elections could be held since the list of voters is inflated with persons were have either migrated or have died. In addition, the current voters’ list does not include persons who would have attained the age of 18. The validity of the current voters’ list expires on 30 April 2019 which was outside the three-month deadline set by the Constitution.

In a previous article, we had stated that the Constitution mandates GECOM to always be in a state of readiness to hold elections within three months, and that GECOM staff had met immediately after the vote of no confidence to discuss the possibility of holding such elections. However, in view of the Government’s refusal to accept the 31 January 2019 Chief Justice ruling, GECOM for a while found itself incapacitated in terms of deciding on the way forward. It was not until mid-February 2019 that it chose to seek the advice of the Ministry of Finance on funding for elections although the Constitution provides it with the flexibility to reallocate funds within the framework of its mandate. Based on the advice given that the Assembly’s approval was needed, GECOM decided to proceed with its 2019 work programme which involves the conduct of house-to-house registration of voters.

We had suggested that a compromise arrangement could be worked out whereby plans for house-to-house registration of voters are shelved (for the purpose of these elections only) and replaced by a period of claims and objections with a view to as far as possible sanitizing the current voters’ list. In this regard, GECOM had stated that it would need 148 days to do so, which means that elections could have been held in June 2019 on the assumption that such a decision was taken immediately after the vote of no confidence. As it now stands, if this approach is taken, elections could be held in August 2019.

Meetings with the Carter Center

The Carter Center held meetings with the Government officials, the Opposition Leader, GECOM and the Private Sector Commission to discuss the impasse surrounding the holding of elections. Arising out of these discussions, the Center indicated that it was hopeful that the Assembly would be convened before 22 March 2019 (21 March being a holiday) to extend the date for elections. It also proposed that overseas residents in the current voters’ list could be separated out and not used in order to avoid any irregularities in voting, with the proviso that should such a person return to Guyana and wish to exercise his/her vote, he/she could be allowed to vote presumably upon proper identification.

The Center expressed its belief that with this approach, elections could be held in August 2019, coinciding with the suggestions we have been making all the while, with a view to ending the impasse.

Letter to the Opposition Leader

On 20 March 2019, the day before the constitutional deadline for holding such elections was due to expire, the Ministry of the Presidency dispatched a letter to the Opposition Leader indicating the President would shortly proclaim a date for the elections ‘within the framework provided by the Chairman of the Guyana Elections Commission’. However, the President does not appear to have the authority to do so without the approval of the Assembly for an extension of the 21 March 2019 deadline, as prescribed by Article 106(7) of the Constitution.

On the following day, the Opposition Leader responded by stating that it was ‘totally unacceptable’ for elections to be held on the date proposed by GECOM and that as of midnight of 21 March 2019, the Government ‘becomes illegal’.

Court of Appeal Ruling

Last Friday, the Court of Appeal handed down its ruling based on the Government’s appeal of the Chief Justice’s ruling of 31 January 2019. By majority decision 2 to 1, the Court ruled that the no confidence vote of 21 December 2018 was not validly passed since votes of 34 Members of Parliament (MPs) were required, and not 33.

The court accepted the arguments of the Government’s lawyers that an ‘absolute’ majority was needed while at the same time acknowledging that 33 votes constitute a ‘simple’ majority. The lawyers contended that in a 65-seat Assembly, one-half of the Assembly is 32.5. Since there cannot be a fraction of an MP, one-half is 33, and ‘in accordance with the practice and the application of the meaning of majority, one has to be added to calculate a majority’.

On the other hand, the Opposition lawyers and others, have argued that Article 106(7) refers to ‘a vote of a majority of all elected members’ and not ‘one-half of the Assembly’; there is a distinction between the two; and the votes of at least 33 MPs constitute a majority. They also contend that the word ‘absolute’ is not to be found in Article 106(7).

The dissenting opinion was given by Justice Rishi Persaud who endorsed the ruling of the Chief Justice on the matter. He stated that a majority of 33 has long been used by the Assembly without complaint and that Article 106(6) does not provide for a mathematical formula to be used in determining a majority. He also referred to Articles 168(2) and 168(3) which provides that in the event of a tie in the votes, the motion is defeated; and contended that ‘[t]he inferences are clear.’ Justice Persaud further stated that ‘the formula of first dividing by one half then rounding up to the nearest whole plus one has no application here. It does not accord with logic and common sense in situations where there is an uneven number of members unless that specific formula is prescribed”.

Implications of the Court of Appeal Ruling

The obvious implication is that the status quo prior to 21 December 2018 has been preserved, with the President, Cabinet and the Government remaining in place until the next elections scheduled for some time next year. The National Assembly can also resume its sittings based on its work schedule. However, the Opposition has indicated that it would appeal the Court of Appeal’s ruling to the Caribbean Court of Justice (CCJ). In the circumstances, GECOM needs to remain in state of preparedness should the CCJ overturn the Court of Appeal’s ruling.

Finally, if the current political controversy is about the control of the anticipated oil revenues and continues to escalate, we would have failed the first test in our attempt to avoid the resource curse so well-articulated in last Saturday’s editorial of the Stabroek News under the caption `The ‘resource curse’ and governance’.

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