President and Cabinet should have resigned immediately, caretaker gov’t now in place – Ram

Attorney Christopher Ram says that the mandatory language of Article 106 (6) of the constitution required that the President and Cabinet resign immediately on the passage of the December 21 motion of no confidence.

In a letter which will appear in tomorrow’s Stabroek News, Ram argued that the functions of Cabinet have come to an end in relation to aiding and advising the President in the general direction and control of the Government, proposing legislation etc.

He said it is unclear whether the Government is really serious about the validity of its claims about the motion of no confidence passed against it or whether the real motive behind the challenge to the result of the Motion is all about holding on to power.

He noted that nearly two weeks after the motion was carried there is no sign of a resignation and he adverted to an example in the UK from 1979 following the passage of a no-confidence motion against the government of Prime Minister James Callahan.

 

Chris Ram

The full letter follows:

 

APNU+AFC Gov’t now effectively a caretaker administration, President and Ministers have diminished powers

 

Dear Editor,

 

In my letter of December 29, 2018, I focused on the interpretation given by Attorney-at-Law Mr. Nigel Hughes of the word “majority” in Article 106 (6) of the Constitution of Guyana. With your kind permission I wish to return to the other operative words of the same paragraph. The first thing to note is that Article 106 (6) uses mandatory language and imposes a duty on the Cabinet, including the President, to resign if the Government is defeated on a no confidence motion (NCM).

 

This resignation under Article 106 (6), brings to a halt their functions, including aiding and advising the President in the general direction and control of the Government, proposing legislation, reviewing of contracts over fifteen million dollars and the making of appointments. They can no longer meet as a Cabinet but there is nothing to prevent the former members meeting and offering advice to the President informally.

 

While the Constitution is silent on the specific date for the resignation under Article 106 (6), for the reason set out below, that resignation seems to be automatic, or intended to be with immediate effect. In any case, Article 232 (9) provides that the Interpretation and General Clauses Act (ICGA) shall apply for the purpose of interpreting the Constitution. Since no time is prescribed therefore, section 39 of the ICGA provides that “where no time is prescribed within which anything shall be done, such thing shall be done with all convenient speed.”

It is here the example of the no confidence motion by Conservative Party Leader Margaret Thatcher against the Labour Party Government led by Prime Minister James Callaghan voted in the UK Parliament on 28 March 1979 is instructive. On the declaration by the Speaker sometime after 10 PM. that the motion was carried by 311 votes to 310, Prime Minister Callaghan immediately addressed the House, declaring “Mr. Speaker, now that the House of Commons has declared itself, we shall take our case to the country.”

One day later, Callaghan drove to Buckingham Palace to formally tender his resignation and to ask the Queen to dissolve Parliament “as soon as essential business can be cleared up”. Parliament was dissolved on 7 April, 1979 – ten days after the vote – and elections held on 3 May, 1979 – thirty six days after the vote.

Bear in mind that unlike Guyana, the UK has no single document called a constitution and that while Guyana practices constitutional supremacy, in the UK, at least in theory, parliament is considered supreme. In the UK, there is no law that a simple or qualified or super majority is necessary for a no confidence motion to succeed. That is accepted as part of the supporting conventions which underlie their “unwritten” constitution.

Senior Counsel Ralph Ramkarran pointed out in a recent column in the Stabroek News, that the inclusion of paragraphs (6) and (7) in Article 106 was to insert in the Guyana Constitution, the convention inherited from the UK regarding no confidence motions. He should know, he was the Chairman of the Constitution Reform Commission (CRC), the work of which was so ably documented and published by the Commission’s Secretary, Mr. Haslyn Parris in an Annotated Handbook. Not only is the convention firmly placed in Guyana’s supreme law but so is the number – “all the elected members” – out of which the majority is determined.

It is hard to see what more could have been done by the CRC which could convince the APNU+AFC Government, that like the Callaghan Government, it fell the time the motion was passed. That is common sense and the resignation ought to have been a formality.

 

Turning to Article 106 (7), we note that it states as follows: 

 

“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 the election.”

 

The term “Government” is defined in the Constitution only to mean Government of Guyana but it is clear that the term must include the President who under Article 89 – Establishment of office of President of the Constitution is vested with several roles: Head of State, supreme executive authority and Commander in Chief of the country’s armed forces. The President also has a number of functions and powers including the appointment of Ministers and the allocation of portfolios; presiding over Cabinet meetings; appointing parliamentary secretaries and an Attorney General; exercising the Prerogative of Mercy; appointing judges, including the Chancellor and the Chief Justice.

 

The President’s functions are clearly diminished under Article 106 (6) but he still remains the head of Government, Head of State and Commander-in-Chief of the armed forces. As a practical matter he can no longer perform some of the functions identified in the preceding paragraph while his tenure as President automatically comes to an end when the person elected President at the next election takes office.

 

With respect to the individual Ministers as members of the Government, while the senior among them have resigned as members of Cabinet, as heads of their respective Ministries exercising oversight over statutory and other entities, their work goes on but they are no longer subject to the collective direction of any Cabinet since one does not exist. Decisions of the Government are made at the Cabinet level and with no Cabinet to give directions, only routine and on-going matters at the date of the resignation can be executed. 

 

While the explicit and mandatory language of Article 106 (6) brings the life of the Cabinet to an end, the Constitution recognises that there can be no vacuum in the executive arm of the State. For that reason, Article 106 (7) provides for the continuing role of the Ministers and the President until fresh elections are held within three months and it is at that point that the Ministers are required to resign without any further discretion or action. Resign in this case seems to mean voluntarily leave office and as is clear, any failure or refusal by the Government to resign does not mean that they can stay in office until they do. To take it further, since no notice of resignation is required under paragraph (7) of Article 106, it seems a reasonable inference that none is required under paragraph (6) of the Article either. 

 

Understandably, the Constitution does not use the terms “caretaker government” used in the UK or “lame duck government/administration” used in the USA, but that is effectively what the APNU+AFC Government has become and both the President and the Ministers will have to recognise their diminished powers. The further life of the National Assembly should be dictated solely as Callaghan said for “essential business [to] be cleared up”. In the current circumstances, with a 2019 Estimates having been passed, the only further business should be the tax measures which are already on the Order Paper for January 3, and any matter dealing with the elections. 

The learned Attorney General Basil Williams S.C. has announced that on his advice, the Government has written to the Speaker requesting him to “reverse the passage of the no confidence motion”, a step which seems as absurd as the 34 – 32 majority argument. He seems to be asking the Speaker to count differently, or to ignore, MP Charrandas Persaud’s vote on the Motion. The Attorney General has also indicated that should the Speaker not rule in the Government’s favour, the matter will go to the Court.

To close with the Callaghan example, by the time the first session of the National Assembly is held, it would have been thirteen days following the No Confidence vote without any action by the President or his Cabinet. In the UK example, the resignation took place one day later and the Parliament was dissolved within ten days. From all appearances, dissolution does not even seem to be on the mind of the lawyers in the Government. This clearly puts at risk the preparatory work needed to achieve elections to be held under Article 106 (7) within three months of the NCM. 

It is unclear whether the Government is really serious about the validity of its claims or whether the real motive behind the challenge to the result of the Motion as announced by Speaker Scotland is all about holding on to power, or to use the words of Vice President Ramjattan, “to bring back [their] term”.

What is certain is that the country’s embrace of democracy is once again being tested and that while this is being played out, the Venezuelan President would be looking on with interest while investors become increasingly nervous.

 

Yours faithfully,

 

Christopher Ram 

 

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