Op-Ed: Putting a legal opinion to rest

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Below is an opinion piece done by prominent Attorney-at-Law, Member of Parliament and former Attorney General Anil Nandlall:

Anil nandlall
Former Attorney General Anil Nandlall

There is a legal opinion making the rounds which argues that the no-confidence motion was not lawfully passed. The ground upon which this opinion is premised is that thirty-three (33) votes do not constitute a majority of a sixty-five (65) members National Assembly.

This argument is not a new one. It came to me as Attorney-General when our government was in a minority. I did not pay much attention to it then. Nor do I accept it now.

I set out my reasons hereunder.

The Speaker has already ruled that the Motion was carried.

Both the Prime Minister, on the night that the Motion was carried and the President the following day, have publicly indicated that the Motion was carried, that the government has fallen and that they will abide with the Constitutional prescription which flows therefrom.

Like many other Commonwealth jurisdictions, apart from the Constitution, there is no other legislation in existence which governs the way that Parliament and the National Assembly function. Article 168(1) of the Constitution provides that, “…all questions proposed for decision in the National Assembly shall be determined by a majority of the votes of the members present and voting”. ‘Members’ in this context obviously means elected members, as non-elected members cannot vote.

Article 106(6) of the Constitution provides that: “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”.

So the pivotal question which arises is what amounts to a majority in an Assembly of sixty-five (65). The term majority is not defined by the Constitution. It is not a legal term of art. Therefore, one has to look at the literal grammatical meaning of the word and the way it has been interpreted in and for the purpose of voting in our National Assembly over the years.

The New Oxford Dictionary of English defines ‘majority’ as “the greater number…”. West’s Legal Thesaurus/ Dictionary defines ‘majority’ as “the greater number; more than half, plurality…”.

It is clear that thirty-three (33), is a larger number than thirty-two (32), it is the plurality and it is more than half of sixty-five (65). As I indicated above, the law and rules governing Parliament and the National Assembly largely evolve and devolve out of ‘practice’. Hence the leading parliamentary manual in the Commonwealth is titled “May’s Parliamentary Practice”. Therefore, it is incumbent upon us to examine the parliamentary practice in Guyana in relation to voting.

I submit that the practice has always been that thirty-three (33), votes are sufficient to carry any motion or any bill put forward for passage in the National Assembly. It is for this reason that APNU+AFC, with their one seat majority of thirty-three (33), were able to cut the annual budgets in the tenth (10) Parliament when the PPP had only thirty-two (32) seats. It is by the same measure, they were able to vote down the legislative changes required for the AML/CFT laws, the Amaila Falls Project etc.

More importantly, if thirty-three (33), is not a majority in a sixty-five (65) members National Assembly then APNU+AFC could not have lawfully formed the Government after the 2015 Elections. Neither could they have passed any bills or any budgets in that National Assembly. All the above were only possible because by our parliamentary practice, thirty-three (33) was always considered a majority in our sixty-five (65) members National Assembly.

No case cited from any foreign land can change this parliamentary and constitutional reality.

Significantly, our Constitution speaks not of an ‘absolute majority’ but of a ‘majority’. These terminologies are different and they are guided by different principles.

By analogy, in the Judiciary, the decision by 2 judges in the Court of Appeal is and has always been a majority in a Court of 3 Judges. I suppose in due recognition of the reality that we do not have “a half judge”!

I hope that I have, in clear and simple language, put that legal opinion to rest.

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