Court of Appeal erred with 34 majority reasoning – Ram

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Attorney and social commentator, Christopher Ram, has signalled his intention to the Court of Appeal’s recent rulings, saying that the court was “wrong” in its interpretation of what constitutes a majority in the National Assembly.

Ram had petitioned the High Court to have Government resign and President David Granger call elections within 90 days as stipulated by Articles 106 (6) and (7) of the Constitution. Acting Chief Justice, Roxane George, had ruled that Cabinet should have resigned upon the passage of the No-confidence Motion. But the State appealed the decision and with the Appeal Court 2:1 split ruling that the No-confidence Motion was invalid without a 34 majority vote, the orders granted to Ram, though upheld by acting Chancellor Justice Yonette Cummings-Edwards and Justice Rishi Persaud on Friday, became irrelevant.

Attorney-at-law, Christopher Ram

As such, on Saturday, Ram posited that the Court made a grave error of unquestioning acceptance of decisions and principles from afar with no regard that, at best, can be of no more than persuasive value. In the process, he added, Friday’s decision marked a turning point in Guyana’s jurisprudence, introducing a harmful level of uncertainty into constitutional and statutory interpretation in local courts.

“Because I believe that the Court of Appeal was wrong on the question of what constitutes a majority under Article 106, I have instructed Counsel to appeal the decision to the Caribbean Court of Justice,” Ram stated.

He pointed out that the Chief Justice had made a number of declarations of which, arguably, the single most important was that 33 is a majority of 65, a principle embedded in the 1966 Independence Constitution and has been accepted and applied by the Legislature, one of the three pillars of separation of power, in every decision in the National Assembly since then.

“The Court of Appeal upheld every one of the decisions by the Chief Justice while overturning her on what many saw as the basic, simple and commonsense issue of the majority. For the respondents, succeeding on the other issues was no more than a pyrrhic victory. To say that the decision of the Court of Appeal was a surprise would be the understatement of the century. In my view, it was an exercise in judicial law making in clear violation of the court’s power, function and duty to interpret the Constitution,” asserted Ram, an attorney and chartered accountant as well.

Ram recalled that during Friday’s ruling, one of the Judges citing a passage from a foreign jurisdiction that any legislation means what it says and does not mean what it does not say. He then pointed to Attorney Anil Nandlall’s submissions to the court in which he cited that the dictum in perhaps the most famous local constitutional case (AG v Mohammed Ali) that, “It is a strong thing to read into an act of Parliament words which are not there, and in the absence of a clear necessity, it is a wrong thing to do.”

That unfortunately, according to Ram, is exactly what the Court of Appeal appears to have done. He added that it took some effort to hear the Appellate Judges say how attracted they were by the arguments of Grenadian Senior Counsel, Dr Francis Alexis, that a vote of no confidence is so important that it required a majority not contemplated by the Constitution.

“Impressed by this argument, the Court by a simple majority, effectively ruled that there was a clear necessity to import and insert not only words that were not there, but the concept of absolute majority which does not exist anywhere in our Constitution. Interestingly, if the same principle is applied to a vote of confidence brought by the Government in a 33-32 National Assembly, the motion would fail because it did not receive 34 votes,” the political analyst contended.

Furthermore, he stressed that the court must also be aware that had former AFC Member of Parliament, Charrandas Persaud, not cast an adverse vote, 33 would have been accepted as a majority. On this point, he also reminded that the 2019 Budget was not passed by a majority of 34, noting that it is unlikely that anyone would argue that a Budget is not special.

Ram, nevertheless, insisted that while each of the appellate Judges emphasised that they would expand on their opinions in their written judgments to follow, the majority was not shy in giving prominence to the submission by Dr Alexis in particular even though Nandlall, in his view, did a point by point rebuttal of Alexis’ arguments even citing relevant passages from Alexis’ own book.

In fact, Ram added that the court also referred, with apparent approval, to cases cited by Attorney Roysdale Forde, representing Minister Joseph Harmon, but appeared to have been unattracted by the manner in which Nandlall, representing Opposition Leader Bharrat Jagdeo in the proceedings, countered to show that the cases were either inapplicable to the language of the Guyana Constitution or that passages were selectively used by Forde, while he conveniently did not cite crucial passages adverse to his client’s case.

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