Chief Justice upholds no-confidence vote

-says passage should have triggered immediate resignation of Cabinet

Roxane George-Wiltshire SC

Finding that the December 21st no-confidence motion against the David Granger administration was validly passed, Chief Justice (ag) Roxane George-Wiltshire SC yesterday said that the 33 votes in its favour constituted the needed majority of the 65-member National Assembly and that this should have triggered the immediate resignation of the Cabinet, including the President.

Justice George-Wiltshire further said there is a clear distinction between the Cabinet and the government and explained that even where the former resigns, there would still be a government, made up of the president and ministers, who are to perform their duties and functions until elections are held and a new government is sworn in. However, she noted that as a result of the finding that the resolution of the motion was carried by a majority of 33 to 32, the President and ministers cannot remain in government longer than three months within which elections are required to be held, unless a longer period is granted by a vote of two-thirds of the members of the National Assembly in accordance with Article 106(7).

As promised, the judge yesterday afternoon handed down her decisions in the three court actions filed in wake of the controversial passage of the motion, which has left government scrambling to find ways to delay the holding of elections within the stipulated 90 days set out by the Constitution.

Article 106 (6) of the constitution requires 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.”

The judgments were handed down one after the other over a four-hour period before a packed courtroom.

Attorney (AG) General Basil Williams SC, supported by attorney Roysdale Forde, failed in a subsequent attempt to convince the court to grant a stay of its judgment on his application for answers regarding the needed majority vote and a conservatory order preserving the status quo until the matter is determined possibly by the country’s final appeal court, the Caribbean Court of Justice (CCJ).

Williams, who in part argues that the motion needed an “absolute majority” of 34 supporting votes, and Neil Boston SC, who filed an action on behalf of a private citizen challenging the validity of the vote of former government member Charrandass Persaud given his Canadian citizenship, have both indicated that their respective appeals will be filed in the coming days. The third case was filed by attorney Kamal Ramkarran on behalf of chartered accountant Christopher Ram, who asked the court to uphold the passage of the no-confidence motion and to declare that the President and his Cabinet should immediately resign as a result.

The rulings represented a major victory for the opposition PPP, which has repeatedly called on government to call elections and adopt a caretaker role in administering the country. It is expected that it will now intensify those calls.

Since the passage of the motion, Opposition Leader Bharrat Jagdeo has been meeting with members of the diplomatic community to update them on the situation and to outline the party’s position.

The motion, which was sponsored by Jagdeo, was declared passed by Speaker of the National Assembly Dr. Barton Scotland following a vote in its favour by then APNU+AFC parliamentarian Persaud on the night of December 21st. Government had initially accepted that the motion was properly carried but later backtracked, claiming the need for an absolute majority of 34 and not 33 votes from the 65-member National Assembly and that Persaud’s vote was invalid given his dual citizenship.

The Speaker, who refused an invitation by government to reconsider his ruling while indicating that it could seek redress in court, has made it very clear that he will abide by the decisions and rulings of the court.

Majority vote

In addressing Williams’ application, the Chief Justice in her ruling said that at least 33 votes were needed for the motion to be passed. Justice George said that in determining this issue, the court looked at what constitutes a majority of the 65-member National Assembly.

Williams had applied to the High Court to settle the legality of the vote on the motion, while saying that it needed the support of an “absolute majority” of 34 members to be valid.

Williams had also applied to the court for orders to stay the motion’s enforcement and enable President Granger and all his ministers to remain in office until the hearing and determination of questions surrounding the legality of the vote, while contending that the ruling by Scotland that it was carried by a vote of 33 to 32 members was unlawful.

Justice George referenced the cases which formed part of Williams’ arguments, including Kilman V Speaker of Parliament of Vanuatu [2011] 4 LRC 656 Court of Appeal, which she found was not applicable to Guyana.

In that case, Williams noted that a motion was carried 26:25 on the grounds that it was supported by the absolute majority as only 51 of the 52 members voted. The Vanuatu Court of Appeal eventually ruled, “We consider that the phrase ‘an absolute majority of the Members of Parliament,’ can only mean at least half the Members of Parliament plus one.  That is half of 52, being 26, plus one equals 27. Further members of Parliament meant all those elected being 52 in number.”

With regards to Guyana’s 65-member National Assembly, he said that half would result in a fraction of 32.5. If it is to be rounded to the next whole number, that figure will be 33 and in accordance with the practice and the application of the meaning of majority, he says, one has to be added to calculate a majority. “Therefore, the majority legally required in Article 106(6) of the Constitution for a vote of no confidence to pass shall be 34 or more of all elected members of the National Assembly,” he argued.

However, the Chief Justice said that a closer look at the Kilman case does not help the applicant but rather nullifies his calculation before adding that Article 106 (6) makes no reference to fractions and therefore does not require an application of the principle of rounding up. “If all 65 members are present and voting, a majority of those members present and voting is 33. If all 65 members are present, a majority of all of the elected members of the National Assembly is 33,” the judge noted, before adding that in the case of the requirement of a majority of all elected members, at least 33 votes would always have to be obtained.

“So, therefore, the ruling of the Speaker that the no confidence motion… was carried by a vote of majority of all elected members of the National Assembly is thus lawful and valid and made in accordance with the requirements of Article 106 (6),” the judge later added.

Immediately after her decision, Williams rose and applied for a stay and a conservatory order. Asked why he was making the application, Williams informed that while he intends to appeal the decision, “time is running.” He said the government doesn’t want to find itself in a situation where the 90-day period is up and the matter is still before the court and that he wants the orders so that government and Cabinet can remain in place until such time as elections are held.

Jagdeo’s lawyer, former Attorney-General Anil Nandlall, registered his objection, saying that the AG asked the court to answer questions. He said that the court has answered them, ruling that what occurred in the National Assembly is in compliance with the Constitution and was valid and as such “there is nothing to stay.”

Williams insisted that his application was valid and was based on precedents but Nandlall stressed that the case that he was relying on had no relevance. “This court was asked to answer some questions. Are you going to stay your own answers?” he asked.

In the end, the Chief Justice agreed with Nandlall and advised Williams to make his application to the Court of Appeal since it cannot be considered by her. “It would not be judicious of me to grant a conservatory order,” she said.

No jurisdiction

Meanwhile, on the application brought by farmer Compton Reid, Justice George-Wiltshire while found that even though Persaud was a parliamentarian in violation of the constitution his vote was valid.

In the action, Reid sought a declaration that Persaud could not have been qualified for election as a member of the National Assembly in the first place since he had pledged allegiance to Canada, in violation of the constitution. Reid also asked for an order setting aside the order of the Speaker that the no-confidence motion was passed, an order staying the enforcement of the motion and a conservatory order, preserving the status quo ante that the government remains in office until the hearing and determination of his application.

In his urgent fixed date application, Reid (applicant) listed Scotland, Persaud and the AG as the respondents. Minister of State Joseph Harmon, represented by Forde, was added as a party to the proceedings following an application by his attorney.

After giving the background of the case and a summary of the arguments raised by all parties, the Chief Justice said the court has no jurisdiction to grant a declaration regarding his disqualification as a member of the National Assembly given his dual citizenship. She said that Reid would have had to file an elections petition within 28 days.

Noting that there is no doubt that Persaud held alliance to a foreign state, Justice George found that he was “not qualified” for election to the National Assembly by virtue of his own acts in acknowledging allegiance and adherence to a foreign power to the sovereign state of Canada, in contravention of Article 155 (a).

The judge however disagreed with the assertion that Persaud ceased to be a Member of Parliament when he “crossed the floor” and voted in favour of the motion. “To put it in not so elegant terms, one who is an MP but switches… is still an MP immediately before the switch…they will not cease to be an MP at the time of the vote,” she said, while later citing Article 165 (2), which states that the presence or participation of a member who is not supposed to be there does not invalidate the proceedings.

“In the context of this case, a party cannot be complicit in the perpetuation of an illegality and then cry foul when things go wrong…,” Justice George-Wiltshire said, while stressing that Persaud was clearly in violation of the dual citizenship provision of the constitution.

In the case of Ram’s application, Justice George said that Cabinet should have resigned on the night of December 21 immediately after the passage of the motion.

She said that cabinet is not required to resign with “all convenient speed” but that that resignation is immediate.

In an urgent fixed date application, Ram sought among other things, declarations from the court that the motion was lawfully passed and that the President and his Cabinet should immediately resign in keeping with Article 106(6) of the Constitution.

Ram’s application contended that the government was defeated and that elections must be called within 90 days from the passage of the motion. 

Justice George-Wiltshire, in her ruling, said that while there is nothing in the constitution that speaks to formal resignation she believed that it was automatically triggered by the passage of the motion. She stressed that even though Cabinet has resigned, the President remains the President and the ministers remain ministers to perform their duties and functions of office.

No cost was awarded in either case.

At the start of the proceedings, the judge announced that given the national importance of the matter, she would allow audio recordings of the proceedings.

There were armed police ranks inside and outside the court.

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