Govt has lost legitimacy to govern – Former AG

Former Attorney General Anil Nandlall

Given the many arguments being put forward following the no-confidence vote in the National Assembly over a week ago, former Attorney General and Legal Affairs Minister Anil Nandlall has said the most prudent thing to do at this point, in the best interest of the nation, is to proceed with preparing the country for elections and allow Guyanese to elect a Government.

Nandlall noted that the coalition Government has always argued that it had 33 votes and it would defeat the Opposition-sponsored no-confidence motion. However, it turned out that the Opposition secured the 33 votes instead, in order to have that motion passed in the National Assembly. But today, the Government is trying to propose several legal arguments.

Former Attorney General and Legal Affairs Minister, Anil Nandlall.

But the former AG maintained that the Government, by all means, should resign as per the Constitution. “The Constitution is silent on time, but the language of the Constitution is couched in the mandatory tone … Our laws are very clear. Our Interpretation and General Clauses Act says whenever a written law is silent on the time … then that act must be done in reasonable time.”
Referring to the Judicial Review Act, in which he filed an action to help bring that law into force, Nandlall said one of the arguments of Attorney General Basil Williams were that there was no timeframe. He recalled that Chief Justice Roxane George overruled that argument on the ground that whenever a law was silent, that act must be done in reasonable time.
Assuming that the no-confidence motion was unsuccessful, Nandlall said there would not have been a stopping in time for the Government not to continue in office. As such, he believes that the Government ought to have resigned already. He reminded that the Constitution only provides for the Government to remain in office for 90 days and ensure that elections are held.

“The Government will obviously remain in office with the limited powers of holding elections in three months. The Government will be empowered to do what is necessary to ensure that elections are held within that period. Outside of that, one can forcibly argue that Government does not have other powers … Government gets its power to rule, by the people. When they lost the no-confidence, it was a loss of the will of the people. They have lost the will to govern.”

Notwithstanding the reduced power of the coalition Government, the former AG declared that it would still have to perform the basic functions of Government, such as to ensure public safety and security, and having Parliament maintained, among others.
He said, “Government has to now address its mind to the dissolution of Parliament. It is clear when elections is imminent, you dissolve the Parliament. The President does that…” Nandlall said the office holder, whether acting or not, has the authority to do so.

Other arguments

While rejecting the argument of 34 being a majority to pass the no-confidence motion, Nandlall says he has taken note of other arguments being proposed. He was referring to the fact that former Alliance For Change (AFC) Member of Parliament Charrandas Persaud was a citizen of Canada, which disqualifies him from being a member of the National Assembly.

Former AFC’s MP, Charrandas Persaud

He said while this may be a legal argument being considered, Guyana is not the only country that has that provision in its Constitution. Therefore, he said that the argument must be guided by case law in the Region and the Commonwealth, where similar provisions exist. But Nandlall said that Article 165 (1) and 165 (2) of the Constitution made provisions for such.

The pertinent section reads, “Subject to the provisions of this Constitution, the National Assembly may regulate its own procedure and may make rules for that purpose (standing orders)…The National 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 the dissolution of the Parliament and the presence and/or participation of any person not entitled to be present at, or participate in the proceedings in the Assembly, shall not invalidate those proceedings.”

On that note, Nandlall said if one were to assume that Persaud was not qualified or entitled to be present and participate in the proceedings of Parliament, the Constitution speaks to that and says that his presence does not invalidate the proceeding. “If his presence there was one that was wrongful, the question is does it operate retrospectively or prospectively…” he added.

The former AG said if a court declared him unqualified, but he voted in favour of budgets and laws that were passed, then that brings a whole new argument to the fore. “Let’s assume that they (Government) go before a judge and the judge said yes, he was sitting there unlawfully. Does the judge have the power to invalidate all that was done prior to that?” he questioned.

But more than that, Nandlall argued that the judge will also have to take into account that there are many more members of the National Assembly who are in similar circumstances like Persaud. He, therefore, questioned how far back the judge would go to invalidate acts in other Parliaments. On that basis, he believes that the best option is to go to the polls.


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