Charrandass’ vote is irreversible – Lawyers argue

Jan 25, 2019 News

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Attorneys-at-law, Anil Nandlall and Sanjeev Datadin have both argued that the no-confidence vote by expelled Member of Parliament, Charrandass Persaud, is irreversible.
The lawyers based their argument on specifically on Article 165(2) of the Constitution, which states in part that: “…the presence or participation of any person not entitled to be present at or to participate in the proceedings of the Assembly shall not invalidate those proceedings.”

The case filed by Compton Reid, a private citizen, is challenging the no-confidence motion against the Government, on the ground that Persaud, who voted with the Opposition, has Canadian citizenship.
The litigant is asking the Court to nullify the motion, since it is his contention that Persaud acted in contravention of Article 155 (1) of the Constitution of Guyana, which basically forbids Members of Parliament from holding allegiance, obedience and adherence to foreign powers.

The applicant has asked the court to make a declaration that Persaud is not qualified for election as a member of the National Assembly, by virtue of his own act and acknowledgement of allegiance, obedience and adherence to a foreign power – that is the Sovereign State of Canada, in contravention with Article 155 (1) of the Constitution of Guyana.
Further, the applicant is asking for a declaration that Persaud is the holder of a valid Canadian passport No. AC773625 issued by the Government of Canada on October 25, 2017, which will expire on October 25, 2022 and was a replacement of the previous passport, which was issued to him on January 29, 2013 and expired on January 29, 2018.’
The vote cast by Persaud is null, void and of no legal effect and by reason the unlawful “yes” vote cast by Persaud, the No Confidence Motion was not passed, is another declaration being asked for by the court.
However, lawyers refuted the claims by arguing that the Constitution provides for Persaud’s actions to be validated.

Datadin specifically noted that it would take “legal gymnastics of Olympic proportions” for the court to rule otherwise.
Both attorneys shared the view that the act has some accompanying rules of court, that statutory procedural code provides for such a challenge to only be launched by way of an Elections Petition, which must be filed within 28 days after the declaration of the elections results.
In his submissions, Nandlall noted that “It matters not if the deficiency is discovered outside of that 28 days period. The court simply has no jurisdiction to entertain any challenge outside of that period.
“Part of the special jurisdiction is that any breach of the procedure or any violation of the time frame prescribed is fatal. This matter was filed three and a half years after the 28 days period … by way of a Fixed Date Application [instead of] an elections petition, [and had expired].”
The lawyer further expounded that the case must therefore be deemed incurably bad in law and must be dismissed.
Nandlall noted further that every court in Guyana, and the Caribbean and the rest of the Commonwealth which has a similar legal framework, has uniformly ruled that such application as the one filed by Reid must be dismissed,”
He cited a number of cases from the Caribbean and Commonwealth, where litigants have tried to do exactly what Reid is attempting to do, that is, approaching the Court outside of the timeframe and not by way of an Elections Petition.
“And every single one of them, the matter has been dismissed.”

Nandlall stressed further that the matter is a classic case where legal proceedings are being used to address a political situation.
“There is no basis for these proceedings to have been filed since the Constitution, in clear language and with no ambiguity, provides for each issue raised in the proceeding.”
In cases where a no-confidence motion is successfully passed, Nandlall told the Court that the law provides that 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.”
“Notwithstanding its defeat, the Government shall remain in office and shall hold an election within three months, or such longer period as the National Assembly shall by resolution supported by not less than two-thirds of the votes of all the elected members of the National Assembly determine, and shall resign after the President takes the oath of office following the election.”
The lawyer further noted that 33 votes obtained by the Opposition on December 21, 2018, has always been considered such a defeat.
“Article 165(2), therefore, makes it inconsequential whether Persaud is a dual citizen or a disqualified Member of Parliament.
“It is absolutely irrelevant to the no-confidence vote used, that Government could still continue to function, save for the Cabinet – a nucleus of the Executive Government.”

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