Arguments in the cases related to the challenge of the validity of the no-confidence motion, currently before the Court of Appeal, include a refashioning of arguments that were made in the High Court and struck down in a “profound” and “well-reasoned” judgement that was handed down by the Chief Justice (ag), Roxane George, according to Opposition Leader Bharrat Jagdeo.
During his most recent news conference, Jagdeo proffered the view that the lawyers representing the coalition Government’s interests have an almost impossible task of discounting the ruling of the Chief Justice (ag).
“No amount of foreign representation that the Government will pay for with taxpayers’ money – and the use of taxpayers’ monies now is a problem in itself – will work….how will you get past the Constitution of Guyana and the ruling of the Chief Justice, a ruling that was profound and detailed…every argument being made now has been struck down by the Chief Justice with formidable reasoning,” he said.
In filing the appeals, Attorney General Basil Williams argued that the Chief Justice’s (ag) ruling was “unreasonable and cannot be supported having regard to the evidence” – although the ‘evidence’ in question was not detailed. He argues too that the Chief Justice (ag) “erred and misdirected herself in law” when she upheld the validity of the vote on the no-confidence motion.
In the Chief Justice’s (ag) ruling on the case claiming that 33 votes was not a majority of 65 in the National Assembly and, as such, the no-confidence motion vote could not be valid without 34 votes, she said: “The majority required by Article 106 (6), being a majority of all elected members of the National Assembly is at least thirty-three (33) members. As a result of the finding above, the no-confidence motion is carried as a requisite majority was obtained by a vote of thirty-three – thirty-two (33-32)…the President and the Ministers cannot, therefore, remain in Government beyond the three months within which elections are required to be held…I, therefore, find that Cabinet is now required to resign with all convenient speed, as the resignation under Article 106 (6), in my view, takes immediate effect following the defeat of the Government in a vote of confidence by a majority of all elected members of the National Assembly. In this case, Cabinet must be taken to have resigned with immediate effect from the evening of December 21, 2018, and all functions or duties provided in any law to be performed specifically by Cabinet must have ceased from that time”.
Jagdeo noted that the “34 argument” – in one of the appeals of the High Court ruling – continues to be made in the Appeal Court and he drew attention to the Chief Justice’s (ag) ruling which validates the position that 33 is the majority vote. The Chief Justice (ag) in her ruling had said, “In the case of a ‘simple majority’ the determination of a majority is based on the number of persons present and voting. In the case of an ‘absolute majority,’ the determination of a majority is based on the total number of or all the Members elected to the National Assembly”.
The Opposition Leader said, “I would like to see what kind of creativity will be used…the Chief Justice’s ruling on this was factual, logical and well-reasoned,” he said.
Another of the High Court arguments being “refashioned” in the Appeal Court – in a second appeal of the High Court ruling – relates to dual citizenship. The Opposition Leader pointed out that the Chief Justice (ag) was clear in calling out the Government for benefiting from the vote cast by former Alliance For Change (AFC) parliamentarian, Charrandas Persaud, who holds a dual citizenship, but then challenging the validity of his seat in the National Assembly when his vote did not align with the interests of the coalition.
The Chief Justice (ag) had ruled that sitting as a Member of Parliament in the National Assembly while holding dual citizenship is unconstitutional, but Article 165 (2) provides that proceedings of the National Assembly are not invalidated by the presence or participation of a person not entitled to do so – therefore, Persaud’s vote is valid.
Jagdeo said, “The Chief Justice ruled that dual citizenship is not contemplated in our Constitution (relative to Members of Parliament), but she did not invalidate the vote…Article 165 (2) is clear on this…what argument will Government use now? I have not heard them address Article 165 (2)”.
Article 165 (2) of the Constitution states that: “The Assembly may act notwithstanding any vacancy in its membership (including any vacancy not filled when the Assembly first meets after the commencement of this Constitution or after any dissolution of Parliament) and the presence or participation of any person not entitled to be present at or to participate in the proceedings of the Assembly shall not invalidate those proceedings.”
Court cannot extend time
A third argument currently before the Appeal Court relates to an application for a stay of execution of the High Court ruling which would, in effect, extend the time of the coalition Government in office beyond the March 21, 2019, deadline.
The Opposition Leader noted that there is also an attempt to have the Appeal Court extend the life of the APNU/AFC coalition Government, past the March 21, 2019, deadline – the deadline for polls in Guyana.
According to him, the Judiciary cannot be used to “supplant” the Legislature – since, according to the Constitution, it is only by a two-thirds majority vote in the National Assembly that the deadline can be extended. “Only legislators in two-third vote can extend the life of the Government; not the court or anyone else….if the courts try to do that they will be putting themselves above the Constitution…so the timeline, I don’t see, how it can be extended,” he said.
Article 106 (7) states 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.” Additionally, the Explanatory Memorandum, on Page 15, of Bill 14 of 2000 – Constitution (Amendment) – the Bill that introduced Article 106 (7) – said: “Clause 5 alters Article 106 to provide for the resignation of Cabinet and the President following the defeat of the Government in the National Assembly on a vote of confidence. Although defeated the Government shall remain in office for the purpose of holding an election”.
The Opposition Leader, during his March 6, 2019, meeting with Granger, had proposed that General and Regional Elections be called on or before April 30, 2019. He informed Granger that this is the only condition under which the People’s Progressive Party/Civic (PPP/C) will support the coalition Government – which needs to have a two-thirds vote in the National Assembly – to extend the March 21, 2019, deadline. Granger rejected this offer.
The fourth major argument being “refashioned” in the Appeal Court, in a second application made by the Government – an application for a conservatory order to maintain the status quo ante of the Government – relates to the Guyana Elections Commission’s (GECOM) ‘needs’ for financing.
The Opposition Leader, during his news conference, said, “They are now saying they need to stay on in power because GECOM will not have enough [money]”.
Noting that GECOM has indicated that it needs just over $2 billion to hold General and Regional Elections, Jagdeo charged that the Commission should already have $5.371 billion in its account, in accordance with the Fiscal Management and Accountability (FMAA) (Amendment) Act 2015. Section 80 B (8) makes it clear that: “The appropriation of a constitutional agency approved by the National Assembly shall be disbursed as a lump sum by the end of the month, following the month in which the appropriation was approved”. Of note is that it was President Granger, in August 2015, who signed off on the Fiscal Management and Accountability (FMAA) (Amendment) Act.
Jagdeo stressed too that GECOM has total discretion over the use of its annual appropriation in accordance with Article 222 (A) of the Constitution. Article 222 (A) of the Constitution says: “In order to assure the independence of the entities listed in the Third Schedule – (a) the expenditure of each of the entities shall be financed as a direct charge on the Consolidated Fund, determined by a lump sum by way of an annual subvention approved by the National Assembly…(b) each entity shall manage its subvention in such manner as it deems fit for the efficient discharge of its functions, subject only to conformity with the financial practices and procedures approved by the National Assembly to ensure accountability”.
The Opposition Leader also called attention to the fact that Finance Minister Winston Jordan confirmed that GECOM can spend its annual appropriation as it prioritises. Jordan, on November 19, 2019, during the consideration of the 2019 budget of GECOM, a constitutional agency, in the National Assembly, said: “Mr Chairman, the sum of $5,371, 061,000 is given as a lump sum to GECOM to use as it sees fit and as it prioritises.”
Further, he pointed out that although highly unlikely, if GECOM needs money beyond the $5.371 billion it has at its disposal, GECOM can have recourse to the Contingency Fund without resort to the National Assembly. Jagdeo stated that this point was made by former Attorney General Anil Nandlall in the Appeal Court.
“GECOM has more than enough money than it needs…this argument is to open a new front to legitimise an illegitimate Government…the nonsensical arguments can be made, but it will not change the facts,” Jagdeo said, adding that the argument about financing is a red herring being used to mislead the Court.
No judicial coup
Additionally, on the night of December 21, 2018, as well as the day after, the statements from President David Granger, Prime Minister Moses Nagamootoo, and other coalition Government Ministers, indicated an acceptance of the consequences triggered by the passage of the no-confidence motion.
However, in the following weeks, the coalition Government signalled its approach to the Judiciary. At that time, the Opposition Leader warned against any action that could in effect be translated into a judicial coup. He had said, “We believe that the Judiciary must not engage in any action that could violate what is so explicit in our Constitution and it’s explicit that the Government must resign or else, we’ll have a judicial coup reversing what took place in Parliament. We cannot have that, the Constitution is clear…all of these legal manoeuvrings are intended to thwart the will of the people and the Constitution…it is clear that the coalition Government has lost a no-confidence motion.”
After the motion was passed in the National Assembly on December 21, 2018, House Speaker Dr Barton Scotland on January 3, 2019, refused Government’s ‘request’ to reverse the ruling he made on the night of the vote. While the High Court upheld the validity of the vote on the no-confidence motion, the same was done by the Legislature.