I take the informed view that the Court of Appeal’s ‘attractive’ formula is unsound. The 2-1 decision rests on unsupported grounds – irrelevant case law. At the same time, everyone seemed to have experienced selective amnesia. Did they forget to mention the March 26, 1979 no-confidence motion which the British Labour Party led by James Callaghan lost by one vote, or was it intentional misleading of the Court? In addition, the Chancellor’s position reflects a flawed attempt at judicial activism.
First, the Chancellor’s position that the framers intended 106(6) to be an ‘absolute majority’ is absurd. The intention of the framers is clear in 106(6); they wrote ‘a majority of all elected members’. If they wanted absolute majority they would have inserted ‘absolute’ in front of ‘majority’ in the clause. Why did they include two-thirds majority for extension of the 90 days in 106(7)? Is it not clear they knew what they were doing? The decision became more ridiculous when the Chancellor stated that she found Dr Alexis’ and other proponents’ unsupported formula ‘attractive’ which gave rise to the notion of 34 as the majority. One would have expected words such as ‘appropriate’, ‘applicable in our context’ that such formula ‘affords a more plausible solution’.
Furthermore, not even one of the cited cases support the ‘attractive’ formula. At best, the cases represented a pale attempt to equate our no-confidence legislation with those cited. First, the Vanuatu constitution calls for ‘absolute majority’ in an even number 52-seat parliament. That is, 52 divided by two plus one equals 27. Even though there was an abstention in the voting the absolute majority remained 27. Second, the Anguilla House of Assembly, comprised of eleven members in addition to the Speaker, requires two-thirds of 11 + 1. Since two-thirds of eleven members equal 7 and one-third, the Speaker interpreted Section 52 (2) to mean that the next highest whole number, 8, represented the applicable quorum. The issue was whether the fraction should be rounded up or down. Saunders J, as he then was in 2000, held that the Speaker was right to take the view.
Third, with regards to the Kenyan 221-Member Parliament, there are constitutional provisions for a no-confidence motion. The Speaker applied the formula expounded by Saunders J in the Anguilla case, to determine the majority needed to pass the motion. Since there is no half Member, the Speaker rounded 110.5 to the nearest whole number which is 111. Note however, that the Speaker announced prior to taking the votes that “majority vote for the purposes of Section 59(3) of the Constitution, is therefore 112. The motion will therefore only be carried if 112 of you vote for it. If it does not attain that number, it will be deemed to have failed.” The voters clearly agreed to the 112 before casting their votes. It should also be clear that none of those three situations apply in the context of Guyana. We didn’t have to go through any of those rituals to determine majority.
An argument can be made that the Chancellor took upon herself to engage in judicial activism. However, such activism has been used to advance legal changes based on sociopolitical and technological changes which have rendered some laws/legislation outmoded in promoting justice. In a time of rapid social and technological change, old common law precedents are sometimes silent or not really applicable to the legal problem in hand. It should be noted here that, in the context of Guyana, we are not dealing with archaic laws/legislation or precedent; our constitution went through broad-based consultations that resulted in the reforms of several aspects/clauses less than two decades ago. Therefore to attempt judicial activism, as one former Chief Justice of Australia put it, could amount to usurping Parliament’s function and give judges a power which the vast majority of them are incapable of exercising. It can be corrosive of the rule of law, and destructive of obedience to the law, if judges did not themselves conform to, and uphold, clearly settled rules of law.