Government is going ahead with its scheduled Cabinet meeting today despite a constitutional requirement that says the Cabinet inclusive of the President must resign following the passage of a no-confidence motion.
Such a motion was approved on December 21st following a crucial vote by then government parliamentarian Charrandass Persaud, who supported the opposition-led motion. Since the passage of the motion, Cabinet has met as per normal, this newspaper was told.
Government, which initially indicated that it would abide by the constitutional provisions after the motion was approved by a vote of 33 to 32, has since challenged the outcome, saying that 34 votes were needed and that Persaud was ineligible to vote as a member of the National Assembly. It has since moved to the court to settle questions about the legality of the approval of the motion as well as for orders to set aside its enforcement and to allow the administration to remain in office.
“Cabinet meets every Tuesday,” Leader of coalition partner Alliance for Change (AFC) Raphael Trotman told Stabroek News when asked whether the Cabinet was meeting today.
According to Article 106 (6) of the Constitution, “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 the elections.”
Attorney Christopher Ram, in a recent letter to this newspaper, insisted that resignation under Article 106 (6) brings to a halt the Cabinet’s 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,” he said.
Sources yesterday said Cabinet continues to meet and will be operating as normal. One source said that since the passage of the motion, Cabinet has met numerous times.
One source insisted that Cabinet will not be resigning. “We are the government and we have to function. There is a budget to expend,” the source said while adding that in addition to preparing for possible elections, government is “doing everything that government has to do.”
Ram, in his letter, said that while the Constitution is silent on the specific date for the resignation under Article 106 (6), that resignation seems to be “automatic, or intended to be with immediate effect.”
He pointed out that 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,’” he said before using the example of the no confidence motion by Conservative Party Leader Margaret Thatcher against the Labour Party Government led by Prime Minister James Callaghan in the UK Parliament in 1979 to strengthen his argument.
He said that while the term “Government” is defined in the Constitution only to mean Government of Guyana “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,” Ram pointed out.
“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,” he argued.
“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,” he pointed out.
Senior Counsel Ralph Ramkarran has also argued that the Cabinet ought to resign. He said that by not resigning, President David Granger and his Cabinet are unlawfully holding on to office and he contends that if the courts allow even a temporary respite from compliance with the constitutional provisions triggered after the passage of a no-confidence motion on December 21st in the National Assembly, they would be sanctioning an “illegality.”
“Until the (no-confidence motion) is declared by the court to have been unlawfully passed, it remains valid and binding and time is running,” Ramkarran, a former two-term Speaker of the National Assembly and former long serving member of the PPP, wrote in his Conversation Tree column published in Sunday’s edition of the Sunday Stabroek.
“Not yet having acted in compliance with Article 106(6) by resigning, the Cabinet including the President are unlawfully holding on to office. A court would be approbating this illegality if it allows even a temporary respite from compliance with Article 106(6), especially having regard to the fact that it is not the end of the life of the Government,” he said.
Both Ram and Ramkarran have expressed the view that given the passage of the motion the government now has to assume a caretaker role.
Opposition Leader Bharrat Jagdeo at a press conference on December 24th stressed that with the passage of the no-confidence motion, the APNU+AFC government has “diminished authority” and can only function as a caretaker government until such time as fresh elections are held.