Govt. files submissions in challenge to no-confidence motion vote count

Jan 19, 2019 News

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Lawyers for the government have filed submissions in the High Court regarding its challenge to the ruling of the Speaker of the National Assembly Dr. Barton Scotland – that the motion of no-confidence debated on December 21, 2018, was carried by a vote of majority by all elected members.
The Attorney General (AG) Basil Williams is challenging the Speaker of National Assembly Dr. Barton Scotland, and Leader of the Opposition, Bharrat Jagdeo, and in court documents, he is asking the court for its determination on a number of issues which arose as result of the passage of the no-confidence motion. The submissions were filed by the Attorney General, Solicitor General Nigel Hawke, Deputy Solicitor General Debra Kumar and Assistant Solicitor General Beverly Bishop-Cheddie.
In the submissions, filed yesterday, the lawyers sought to address four legal issues, providing basis for their arguments. These are: (1) Whether 33 votes in favour of the motion of no-confidence amounted to a majority of all elected members in accordance with Article 106 (6) of the Constitution; (2) Whether Resolution 101 is constitutional and effective and passed in accordance with Article 106 (6) of the Constitution; (3) Whether Section 5 of the Constitution (Amendment) Act, 2000 (No 17/2000) is constitutional and not inconsistent with article 70 of the Constitution; and (4) Whether the Speaker’s ruling on the vote can be quashed by the Courts.
In answering the first issue, the government has submitted that there was a miscalculation of the majority of all elected members as required under Article 106 (6) of the Constitution for the Government to be defeated on a vote of no confidence. According to the lawyers, for the Government to be defeated on a vote of confidence, 34 or more votes, of all the elected members in favour of the motion, was required instead of 33.
This assertion, the lawyers argue, is grounded in established Parliamentary precedent and practice and case law in the Commonwealth. The government’s legal team has acknowledged that Article 106 (6) of the Constitution of the Cooperative Republic of Guyana 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”.
However, they are contending that the Constitutional requirement for voting on a motion of no-confidence is distinct from voting on the passage of legislation and ordinary motions in Parliament and that the framers of the Constitution by requiring the vote of a majority of all the elected members of the National Assembly, have set the requirement as being tantamount to an absolute majority.
“The passage of legislation and motions outside of article 106 (6) procedurally only requires a vote of those members present and voting. By way of example, Article 168 of the Constitution deals with voting on motions generally and provides that “Save as otherwise provided by this Constitution, all questions proposed for decision in the National Assembly shall be determined by a majority of the votes of the members present and voting.”

Further, the government argues, “Therefore, it is clear that the intention of Article 106 (6) is that there must be a majority of “all the elected members of the National Assembly” as a vote of confidence falls outside the ambit of article 168. This distinction in the voting required, rests in the serious legal implications for the National Assembly, and the legal consequences of the vote of confidence, as set out in the Constitution of Guyana.”
The lawyers say that the ordinary and legal meaning of a majority is a number greater than half. And that according to the Merriam Webster Dictionary (1828), “majority rule” is defined as, “A political principle providing that a majority usually constituted by fifty percent plus one of an organized group will have the power to make decisions binding upon the whole.”
This definition of majority, the lawyers contend, is applied in No Confidence Cases to both even and uneven number Parliaments, and in the latter case where fractions are involved, the rounding up of the fractions require at least a majority of two clear votes.
In relation to the second issue, the lawyers have contended that the failure to obtain 34 or more votes breached Article 106(6) of the Constitution and was unlawful, and the certification by the speaker by issuing Resolution 101 could not be conclusive.
“It is our respectful submission that the principles of our Constitution are sacred and sacrosanct and cannot be discharged by the Parliament itself, the body charged with making laws for peace, order and good government of Guyana. We submit most respectfully that the framers of our constitution could not have intended for a government to be defeated by a majority, but rather, an absolute majority of all members present. In all the circumstances, this could only be 34 votes in order for that motion to be carried.”
Pointing out that a question arises whether Resolution 101, being subsidiary legislation, can lawfully abridge or curtail the five-year government term of office provided for in article 70(3), the lawyers said that Resolution 101 cannot lawfully abridge or curtail the five-year term of office of the APNU+AFC Government and to the extent that it is inextricable connected with and intertwined with the mandatory requirements of Article 106 of the Constitution that the Cabinet and President resign no later than March 31, 2019.
The lawyers continued, “It purports to curtail or abridge the APNU+AFC term which constitutionally expires no earlier than May 2020, and to that extent that it has the effect of reducing the five years term in terms of article 70(3), it is pro tanto inconsistent with Article 70 (3) and invalid for such inconsistency.”
“It is respectfully submitted that the framers of the Constitution in article 70(3) having guaranteed an elected government a five years term of office which five years term is protected by entrenchment by the requirement of two thirds of all the elected members of the National Assembly voting to reduce that five years, could not at the same time have intended that a future Parliament were to be permitted to abridge or curtail the enjoyment of that five years, by introducing into the Constitution via a provision that is not entrenched at all a process called a ‘vote of confidence’”, the lawyers have argued in relation to the third issue.
They also contend that this provision was completely omitted in 1980 by the framers, whereby, by a bare simple majority, an elected government’s entrenched five years term could to all practical intents and purposes, be reduced to mere months (as there is no time limit after a President is sworn into office before a vote of confidence could be taken).
Furthermore, among other things, they are contending that it is this vulnerability to such drastic impingement on that guaranteed five years through the instrumentality of Section Five of that Act which, was in law capable of being amended without a two third majority, that is repugnant to, and inconsistent with the intention of the framers that the five years should only, in law be reducible by some future amendment of a provision which requires a two third majority vote for its amendment.
According to the legal team, Article 106 via which the Seventh Parliament has purported to enable such reduction to the five years is not such a provision, and Article 106 is not an entrenched provision in terms of the special procedure for alteration in article 164.
“For present purposes it is wholly immaterial that, in point of fact, there was political bipartisanship that caused Act 17/2000 to be passed in fact by a 2/3 majority vote. It is submitted that fact of 2/3 majority vote is immaterial to the issue under consideration because the question of interpretation as to what the framers intended is not whether parties may for political convenience (as happened with 17/2000) pass a Bill with 2/3 majority support).”
They have raised the question on whether bipartisan support, or not, the provision requires a two third majority vote for its passage. Article 106 does not require a two third majority vote for its alteration, they contend.
Finally, the lawyers advance that if the vote is contrary to the Constitution, the court can intervene and quash the Speaker’s decision. Citing the Kelman case, the lawyers submit that the court declared that the vote was void and that Government Ministers were not to resign but remain in office.
According to the lawyers, “if a Speaker of a National Assembly acts contrary to the Constitution, his decision can be quashed. In this case, the vote in Guyana is contrary to Article 106 (6) and must be set aside as being ultra vires and repugnant to the Constitution”.
In concluding the lawyers said, “The quintessential fact is that there has been an error in the manner of the calculation of the number of votes needed for a No Confidence Motion, and this error carried over into the purported pronouncement by the Speaker that the vote was carried.
The ineluctable conclusion is that the vote was improper and unconstitutional. The Constitution’s ethos and norms must be maintained in order that the Parliament do not act or purport to act in a manner subversive to the Constitution.”

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