A legal opinion drafted by former Attorney General Anil Nandlall in February 2015 is being cited as support for the continued normal functioning of the APNU+AFC government in the period between the passage of the no confidence motion and the holding of General Elections.
In response to a series of questions in 2015 from Sophie Makonnen, country representative of the Inter-American Development Bank (IDB), Nandlall noted that “under the Westminster Constitutional model, an Executive Government continues in office with unaltered powers until a new Executive Government assumes o ffice”.
The opinion was sent to the Minister of Finance Ashni Singh on February 4, two weeks after President Donald Ramotar announced May 11, 2015 as the date for elections.
Makonnen sought to understand whether a dissolution of parliament negatively affected Government’s authority to enter into new loan and grant agreements and was advised that the “principle of continuity of the Executive remains unaffected by the dissolution of parliament.
“Therefore dissolution of parliament does not affect the authority of the government to enter into a new loan or grant agreements, unless of course, the agreement expressly requires the input of parliament,” the opinion concluded.
It has been noted that this opinion stands in contrast to the position held by current Leader of the Opposition Bharrat Jagdeo and Nandlall himself.
Jagdeo has repeatedly argued that as a “caretaker government” the APNU+AFC does not posess the authority to enter into loan agreements or approve and sign contracts.
While government has continued to function, Jagdeo as recently as Monday told members of the international community that a constitutional crisis is brewing.
He has claimed that following the passage of a no-confidence motion in the National Assembly, the APNU+AFC government has “diminished authority” and can only function as a caretaker government until such time as General and Regional Elections are held.
“The framers of our constitution intended…to ensure government acts only in a caretaker fashion in the period allowed by Article 106 (7). Normal duties come to a halt with the exception of those relating to functioning of government because you can’t have a vacuum in government,” Jagdeo stressed days after motion was passed.
Article 106 (6) of the constitution says 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.” Article 106 (7) adds that “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.”
A vote by then APNU+AFC member Charrandass Persaud on the opposition-sponsored motion led to it being declared carried by Speaker Barton Scotland on a vote of 33 Members of Parliament in favour to 32 against.
The government publicly accepted the ruling but later recanted.
The Speaker later refused an invitation by the government to reverse his decision on the motion, saying it could seek redress in court. Three separate legal challenges were subsequently filed and acting Chief Justice Roxane George-Wiltshire, who has already received written submissions and heard legal arguments, is expected to hand down her decisions in each matter tomorrow.
It has been suggested by some observers that a government that falls via a motion of no confidence will have different characteristics in the transition compared to one functioning in the period leading up to early general elections.
