The will of the people vs. a no-confidence motion

Jan 04, 2019 Features / Columnists, Peeping Tom

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The decision of the Speaker of the National Assembly not to review or to reverse his decision on the no-confidence motion of December 21, 2018, now means that the controversy between the government and the opposition will have to be resolved by the Courts. The government had indicated that should the Speaker not reverse his decision that it would be approaching the Courts for relief.
Over the past few days, this column has been pointing to the inherent weakness of the government’s case, which is extremely weak. This column has dismissed the three principal grounds of the government, namely: (1) that an absolute majority of parliamentarians is 34; (2) that Charrandass Persaud’s dual citizenship invalidates the no-confidence vote; and (3) that Charrandass is not allowed to vote against the wishes of his party. Those issues will take centre-stage during the court action.
There is, in the court of public opinion, another facetious argument, which is being made. The latest argument being made is that a no-confidence motion is undemocratic and is inconsistent with the will of the people. Those who are ignorantly making this argument are in effect trying to say that a no-confidence motion cannot cut the government’s elected term of office.
Those making this argument lack an understanding of Guyana’s system of parliamentary democracy. Parliamentary democracies provide for a recall of government through no-confidence motions. In Guyana, it is the Constitution and not the parliament, which is supreme, and it is the Constitution, which provides for the tabling and passage of a no-confidence motion. Therefore, no-confidence motions are part of our democratic system of parliament, and do not conflict with the will of the people.
Under Guyana’s system of parliamentary democracy, Members of Parliament are the elected representatives of the people and, as one Court of Appeal judge in a dissenting opinion has argued, it is through these elected representatives that the sovereignty of the people is exercised.
But there is a more compelling legitimacy for no-confidence motions. In United Democratic Party v Speaker of the National Assembly of South Africa and Others, the Constitutional Court of South Africa noted that it falls upon the parliament to oversee the performance of government. The Court listed accountability-ensuring mechanisms as including elections and no-confidence motions. It argued that those are “crucial accountability-enhancing instruments that forever remind the President and Cabinet of the worst repercussions that could be visited upon them, for a perceived or actual mismanagement of the people’s best interests”.
The Constitutional Court of South Africa also observed that the “mechanism of a motion of no confidence is all about ensuring that our constitutional project is well managed; is not imperiled; the best interests of the nation enjoy priority in whatever important step is taken; and our nation is governed only by those deserving of governance responsibilities.
To determine, through a motion of no confidence, the continued suitability for office of those who govern, is a crucial consequence-management or good-governance issue. This is so because the needs of the people must never be allowed to be neglected without appropriate and most effective consequences. So, a motion of no confidence is fundamentally about guaranteeing or reinforcing the effectiveness of existing mechanisms, in-between the general elections, by allowing Members of Parliament as representatives of the people to express and act firmly on their dissatisfaction with the Executive’s performance”.
In addition, in that very case, the issue of members of the National Assembly voting according to their conscience was addressed. In defending the right of a member of the National Assembly to follow the dictates of personal conscience, the Court observed that central to the freedom to follow the dictates of personal conscience is the oath of office.

The Court stated, “Members are required to swear or affirm faithfulness to the Republic and obedience to the Constitution and laws. Nowhere does the supreme law provide for them to swear allegiance to their political parties, important players though they are in our constitutional scheme. Meaning, in the event of conflict between upholding constitutional values and party loyalty, their irrevocable undertaking to in effect serve the people and do only what is in their best interests must prevail”.
The Court added quite poignantly that, “When the risk that inheres in voting in defiance of the instructions of one’s party is evaluated, it must be counter-balanced with the apparent difficulty of being removed from the Assembly”.
The Court, in other words, was making a pitch for persons to be free to vote on a no-confidence motion in accordance with their conscience, but being aware that doing so can lead to being recalled. Sounds familiar!

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