The 50% plus one rule is largely a fabrication to accommodate what seems to be a missing-link

Dear Editor,

I want to bring my analysis of last Friday’s Court of Appeal ruling to this newspaper to encourage public conversation. As a citizen, I want to make it known that my only concern regarding the Court’s ruling on the matter solely concerns the logic it found convincing, that is the 50% plus one ‘formula.’ I believe that the logic adopted to make a case for defining an absolute majority is in fact illogical, that is erroneous. However, my examination is not meant to demean the Judges of the Court nor those involved in the court proceedings. I am certain that the Judges executed their roles professionally and diligently as they faced the arguments presented before them.

Chancellor of the Judiciary, Yonette Cummings, read aloud the reasons for favouring the argument that it takes 34 votes to obtain an absolute majority for the no-confidence motion to pass successfully, and therefore the voting which occurred on December 21st 2018 was “invalid” since it is considered ‘passed’ with a ‘simple majority’ of 32 ‘against’ and 33 ‘for’ the motion. To understand why I think the argument is erroneous, I extend for consideration two main points.

Firstly, the Chancellor cited Article 106 (6) in support of an absolute majority as necessary, which states:

“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 question of whether the Article above demands an absolute majority or a simple majority is contentious because the Constitution does not specifically say nor explicitly state either. Additionally, the Constitution also does not provide for a distinction between the two terms. However, the Constitution does explicitly refer to ‘a majority’, that is ‘greater than half’ or greater than 50% of votes, according to most law dictionaries. An exception to this requirement of ‘greater than half’ is found, for example, in Article 106 (7), which speaks to the possibility of extending the time frame specified to have elections by having the National Assembly vote to achieve not less than two-thirds majority. Two-thirds of 65 elected members would be 67% (43.5), or 44 members, simply put. Note that we cannot represent an elected member as an abstract point 5 value because this decimal value does not represent the actual membership of the National Assembly.

However, the Court articulated that to calculate an absolute majority “one has to round up, since there can’t be half a person, and so one has to add one to that to be an absolute majority.” Thus, because an absolute majority in this instance is predicated on the 50% plus one maneuver, to obtain an absolute majority, the value of ‘one’ should be added, making it 34 elected members required to pass the no confidence vote. But this reasoning is flawed. To illustrate, let’s follow this logic.

If 65 representatives are elected and seated in the National Assembly, half of 65 is 32.5. By interpreting 32.5 as half of the assembly, we are led to deduce that 32.5 ‘rounded up’ becomes 33. Therefore, add ‘one’ to make an absolute majority. But 33 in the National Assembly is in fact the majority. It is the majority because the Parliament of Guyana has a two-party political dichotomy, with a government possessing a one-seat advantage. Another important aspect missed is the other half of the Assembly after dividing 65 by 2. That’s 32.5—rounded up it becomes 33 too. But this gives the impression of a balanced Assembly since 33 plus 33 equals to 66! The deduction leads to an absurdity because there are only 65 seats in the Assembly. Therefore, a reliance on representing the Assembly members as fractions or decimal numbers is misleading and produces a false conclusion.

Finally, the lawyers who made their respective case against the 50% plus one rule could’ve strengthened their side by rejecting to employ the terms ‘simple majority’ and ‘absolute majority.’ The Constitution only contains two types of majority votes: ‘a majority’, i.e. ‘greater than half’ of elected members of the Assembly, and ‘two-thirds majority’, i.e. 67% of the elected members of the Assembly. Some say that the Constitution ‘loosely’ or ‘prescriptively’ defines what a simple majority is and what an absolute majority is. They reason that because certain articles speak to the number of present members required to cast a vote, that is what determines a distinction between a simple and an absolute majority. For example, Article 168 (1) calls for “a majority of the votes of the members present and voting” (said to be loosely as a simple majority), while in contrast, Article 106 (6) calls for “a majority of all the elected members of the National Assembly” (said to be loosely as an absolute majority). This deduction is inaccurate and allowed advocates for an absolute  majority  to  construct  an  odd  definition  that  includes  its  erroneous  ‘formula.’

In summary, the 50% plus one rule is largely a fabrication to accommodate what seems to be a ‘missing-link’ in the Constitution, that is an absolute majority. However, I argued that there is no need for either simple or absolute majority terms because invoking these terms has no Constitutional support nor do they accurately represent what the operative rule(s) should be, which the Constitution already prescribes as either ‘greater than half’ or ‘two-thirds’ majority.

Yours faithfully,

Ferlin Pedro

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