Can a no confidence vote really remove a President and his Cabinet?

Mar 08, 2019 Letters

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DEAR EDITOR,

The Leader of the Opposition is mistaken in his assertions and belief that a constitutional crisis exists, that the government will be illegal if elections are not held by 21 March, 2019 and that the President must accede to his demands if this situation is to be averted.
Article 106 (6), upon which he relies for this opinion, and which states 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” is, in my opinion, an erroneous provision and has no ability to remove a President of Guyana or his cabinet.
It purports to dismiss the Cabinet while seemingly dismissing the other roles of the executive presidency. This provision seems more in line with a Westminster-style constitution where the roles of Head of State and Commander-in-Chief of the armed forces is separate from the head of government and cabinet whose position is dependent upon maintaining a parliamentary majority.
Our Republican constitution is very clear that “there shall be a President of the Co-operative Republic of Guyana, who shall be Head of State, the supreme executive authority, and Commander-in-Chief of the armed forces of the republic” (Article 89) and he shall serve for a period of five years and shall continue in office until the person elected to the Office of President at the next elections assumes office (Article 92).
The Constitution also declares that the executive authority of Guyana shall be vested in the President or through officers subordinate to him (Article 99 (1)) and that there shall be a Cabinet for Guyana, which shall aid and advise the President in the general direction and control of the Government of Guyana (Article 106 (1 & 2)).
The Constitution also gives the President the right to prorogue and to dissolve parliament (Article 70) and to proclaim the date for elections (Article 61).
In relation to limitations, if any, on the supreme executive authority by Parliament or any other body, the constitutes declares that the President “shall act in accordance with his own deliberate judgment except in cases where he is required to act in accordance with the advice, or on the recommendation of, any person or authority” (Article 111 (1)) and he may consider it necessary to refer it back for reconsideration (Article 111 (2)). Similarly, a Bill sent to the President for his assent, having received the support of a majority of members in the National Assembly, does not compel his assent and he may return the Bill to the National Assembly for further consideration and the support of no less than two-thirds of the members of the National Assembly (Article 170).
In relation to creating a vacancy in the office of the President the constitution provides for the removal of the President on the grounds of incapacity (Article 93), for violation of the Constitution or gross misconduct (Article 94) or if the Office of the President becomes vacant through the death (Article 178 (1) (a)) or the resignation (Article 178 (1) (b) of the President.
In the instances involving the possibility of the removal of the President (Articles 93 & 94), the Constitution details an exhaustive process requiring a vote of no less than two-thirds of the members of the National Assembly to succeed.
Article 106 (7) attempts to recover from the debacle of the previous provision (Article 106 (6) and recognizes that “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”.
It follows that the Government will remain in office unhindered, and since the Guyana Elections Commission, as required by the constitution, has tendered its advice to the President that elections cannot be held within the three-month period, that this situation will continue until the National Assembly, supported by no less than two-thirds of all elected members resolves a date for general elections.
The passage of a no-confidence motion should signify that a government has lost its ability to govern by virtue of not having the support of a majority of the elected members in the National Assembly. This is not the case now, nor was it before the passage of the no-confidence motion.
The APNU-AFC government continues to enjoy a 33-32 majority that it received at the last general and regional elections and it is absurd that the government and people of this country should be held hostage by a minority party that has essentially orchestrated an attempted coup d’état.
Charandass Persaud’s presence and membership of the National Assembly was illegal and his vote on the no-confidence motion was as insincere as they come – as he clearly recognized when he essentially discarded his membership in the National Assembly and ran off to Canada – and should have been invalidated.
The Constitution made clear that a person may stand for election only if “he or she has declared that he or she supports, or has otherwise identified himself or herself with one and only one of the lists related to that geographical constituency, not with a list in any other geographical constituency, and not with any lists of another party” (article 160(2)(a)).
Mr. Persaud was elected on the APNU/AFC List and owed his allegiance to that list. The other 64 MPs fulfilled their obligations and voted for the list to which they had declared their allegiance, except for Mr. Persaud who, by his perfidy and his intent to defraud the thousands of persons whose vote secured his position, voided his representation.
The Opposition Leader’s arrogance, dishonesty and disrespect for the Constitution and the office of the President, may delude him into believing that he possesses the political power to compel the President to do his bidding by threatening to engineer mayhem. He will not succeed.

Sincerely
Oscar Dolphin

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