AG asks court to settle legality of confidence vote

Attorney General Basil Williams has approached the High Court to settle the legality of the vote on the no-confidence motion that was passed against government, while saying that it needed the support of an “absolute majority” of 34 members to be valid.

Williams has applied to the court for orders to stay the enforcement of the motion and enable President David Granger and all his ministers to remain in office, while contending that the ruling by House Speaker Dr Barton Scotland that it was carried by a vote of 33 to 32 was unlawful.

In addition to an order to stay the enforcement of the motion, Williams has asked the court for a conservatory order to preserve the status quo ante that the President and all Ministers of the Government remain in office until the hearing and determination of questions surrounding the legality of the December 21st vote.

Scotland declared that the motion was carried after then government Member of Parliament (MP) Charrandass Persaud voted with the opposition. Among the seven questions Williams has asked the court to determine is whether the motion upon a division vote of 33 to 32 MPs was validly passed as it is his contention that 34 votes were needed.

The action lists Scotland, and Opposition Leader Bharrat Jagdeo, who sponsored the motion, as the respondents.

It comes after the Speaker last week refused government’s request to reverse his recognition of the motion, while declaring that the issues which have surfaced need full and final determination by the courts.

Guyana’s constitution states that where the government is defeated on a vote of no confidence, general elections are to be held within 90 days thereafter.

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 no confidence.”

Article 106 (7) of the Constitution further provides that “notwithstanding its defeat, the Government shall remain in office and shall hold elections in three months, or such longer period as the National Assembly 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.”

While initially accepting that the motion was carried, government has subsequently argued that a “majority” as meant by this provision is not 33 members of the 65-member House but 34.

In his urgent notice of application for the orders, Williams argues that the National Assembly comprises 65 members and that, mathematically, half of all the elected members equals 32.5. Accordingly, he says that the figure should then be rounded to the next whole number, being 33, which would now represent half of the elected members and that the majority thereby being a number greater than half means that ‘1’ ought to have been added to the whole number ‘33’ to calculate an absolute majority of 34.

Williams is of the view that since “the motion of no confidence was not validly passed by 34 or more of all the elected members of the National Assembly,” it is resultantly void and of no legal effect to defeat the government in accordance with Article 106 (6).

“The ruling of the Speaker that the motion was purportedly carried by a majority vote of 33:32 raises concerns of serious national interest and grave and significant constitutional issues that are

central to Guyana’s democracy, stability and constitutional ethos and as a consequence, requires the Court’s urgent intervention,” Williams argues.

Prominent attorney Nigel Hughes first floated the idea that 34 votes were needed as opposed to 33.

In his application, Williams also states that the conservatory order is necessary to preserve the status quo ante since, even though Article 106 (7) requires that the President and all Ministers of the Government remain in office and hold elections within three months, the period for the hearing and determination of the matter may expire before that time.

He advances that the granting of the conservatory order by the court will preserve the status quo ante especially in the relation to the three-month period by which elections are due and resignation of the government.

Additionally, he says that the stay of the enforcement of the Resolution is necessary in order to avoid the process being rendered nugatory, while noting that in all the circumstances there exists “an arguable case on the questions in controversy with a realistic prospect of success on the part of the Government.”

Williams also points out that the Speaker’s reasons for not reversing his decision positively, given in a ruling last Thursday, reinforces the necessity for the court’s intervention. “The Speaker has expressly called for clarity by the courts in order that guidance can be given to the National Assembly in this case and for future matters of this nature and this underscores why a conservatory order preserving the status quo ante is necessary until a pronouncement by the Court on the interpretation of section 106 (6) of the Constitution,” he adds.

As a result, Williams specifically asks that the court determine:

Whether the Speaker’s Ruling that the motion of no confidence debated in the National Assembly on the 21st day of December, 2018 was carried by a vote of a majority of all the elected members of the National Assembly is unlawful, null and void being contrary to Article 106 (6) of the Constitution of the Cooperative Republic of Guyana. (The Constitution)

Whether the motion of no-confidence upon a division vote of 33:32 Members of the National Assembly was validly passed  as the requisite  majority of  all the elected members  of the National Assembly pursuant to  article 106 (6) of the Constitution.

Whether the requisite majority of all the elected members of the National Assembly ought properly to be 34 votes;

Whether the President and all Ministers of the Government can remain in Office as a majority vote was not duly carried in accordance with Article 106 (6) of the Constitution;

Whether the Court can make an order setting aside or nullifying the Speaker’s ruling that the motion was carried;

Whether the court can make an order staying the enforcement of Resolution 101 declared by the Clerk of the National Assembly to have been passed on the 21st of December, 2018 in the National Assembly.

Whether the court can grant a conservatory order, preserving the status quo ante that the President and all Ministers of the Government remain in office until the hearing and determination of the questions sought herein.

Williams further declares that it is in the interest of justice that the court deals with his application expeditiously having regard to the imminent consequences which flow from Article 106 (6) and (7) of the Constitution. He opines that he is entitled to a hearing and decision within a timely manner, while stating that the overriding objective favours the granting of the orders being sought and also the general public interest.

A date is, however, yet to be set for hearing of the matter.

Just last Friday, private citizen Compton Herbert Reid filed an action challenging the validity of Persaud’s vote, given his Canadian citizenship, the consequence of which, he contends, is that the motion against the APNU+AFC government could not be regarded as having been passed.

In his action, which essentially seeks a declaration that Persaud could not have been qualified for election as a member of the National Assembly in the first place since he has pledged allegiance to Canada, Reid is also asking for an order setting aside the order of the Speaker that the no-confidence motion was passed. He is also asking for an order staying the enforcement of the no-confidence motion.

Additionally, he too is asking the court for a conservatory order, preserving the status quo ante that the government remains in office until the hearing and determination of his application before the court.

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