Lawyers discuss legal issues stemming from passage of no-confidence motion

Jan 26, 2019 News

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It was an afternoon of lengthy submissions, yesterday, when lawyers for the government, Speaker of the National Assembly Barton Scotland and Leader of the Opposition Bharrat Jagdeo addressed the court on several legal issues arising since the passage of the no-confidence motion against the government last December.
Acting on behalf of the government, Attorney General Basil Williams is challenging Scotland and Jagdeo and he is asking the court for its determination on the issues. Chief Justice Roxane George is hearing the matter.
Williams sought to address the issue of whether Resolution 101 is constitutional and effective and passed in accordance with Article 106 (6) of the Constitution.
According to Williams, Resolution 101 issued by the Speaker is unlawful. Citing a case law, he said, “You cannot certify an illegality.” He said, too, that once a resolution by parliament is inconsistent with any law, the High Court has jurisdiction to declare it null and void.

“It is respectfully submitted that the High Court of Guyana has jurisdiction to entertain this Application. The Court is the guardian and protector of the Constitution.”
The Attorney General submitted 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.
Referencing a certain section of the Constitution, which Williams says makes provision for the government to run its five-year course, he maintained that the government was not defeated since the passage of the no-confidence motion is unlawful.
According to him, “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 inextricably connected to and intertwined with the mandatory requirements of Article 106 of the Constitution.
That the Cabinet and President resign no later than March 31, 2019, 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-year term in terms of Article 70(3), it is pro tanto inconsistent with Article 70 (3) and invalid for such inconsistency.”
On the issue of majority vote, Williams told the court that for the government to be defeated on a vote of confidence, 34 or more votes of all elected members in favour of the motion was required instead of 33. He said that this assertion is grounded in established Parliamentary precedence and practice and case law in the Commonwealth.
Stressing that the vote on the no-confidence motion was illegal, Williams said 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, Williams contends, is applied in no confidence cases to both even and uneven numbers 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.

On the government’s side also is Attorney-at-Law Maxwell Edwards who addressed the court on whether Section 5 of the Constitution (Amendment) Act, 2000 (No 17/2000) is constitutional and not inconsistent with Article 70 of the Constitution.
Arguing that Article 70 (3) of the Constitution guarantees an elected government a five-year term of office, Edwards said that Article 106 (6) which states, “The Cabinet including the President shall resign if the Government is defeated by the vote of a majority of all the elected,” truncates the government’s five-year term.
However, Nandlall who is appearing for Jagdeo has argued that the government’s application is bad in law and should be thrown out by the court.

Addressing the court on the issue raised by government that 33 is not a majority of 65, Nandlall cited several definitions for majority by the Blacks’ Law Dictionary and the Oxford Dictionary and the Webster’s third new International Dictionary.
According to Nandlall, the Blacks’ Law dictionary states, “A majority always refers to more than half of some defined or assumed set. In parliamentary law, that set, may be all of the members or some subset, such as all members present or all members voting on a particular question.”
Furthermore, Nandlall said that the Oxford Dictionary defines a majority as, “The state or fact of being greater, the number by which in voting, the votes cast on one side exceeds those cast on other.”
While the Webster Dictionary states that a majority is “The quality or state of being greater: number greater than half of a total: the excess of such a greater number over the remainder of the total.”
Nandlall, a former Attorney General and Minister of Legal Affairs, is arguing that the definition for majority put forward by Williams is not logical. He is contending that where a government was formed on the basis of the support of only 33 of the 65 elected members, it means that in order to implement any legislative measure, it must get the vote of at least one opposition member.

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