Ramjattan justifies the court challenge to the no-confidence vote

Mar 10, 2019 News

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This past week, Adam Harris, Editor in Chief, secured an interview on No-Confidence litigation with Public Security Minister Khemraj Ramjattan.

Adam: Mr. Ramjattan as a senior Government official and an Attorney, the feeling is that your Coalition Government is deliberately stretching out the litigation arising from the no-confidence vote with the oblique motive of wanting to delay holding of general elections. How accurate is this conclusion?
KR: Adam, the many legal and constitutional issues arising out of the no-confidence vote have to be settled once and for all. Finality has to be brought so that this Government, like future Governments and the Opposition, will rest comfortably knowing for certain what is the legal position surrounding these various issues.
It is not motivated to delay elections. It is motivated by the desire to enhance this democracy and the rule of law.
Adam: Just identify for me what are these constitutional issues.
KR: There are a number of them, almost all of which have been canvassed publicly, and dealt with in the recent judgment of our Chief Justice. Frankly, I must admit some are very novel and I never paid any attention to them, previously. But as we lawyers will tell you, the novelty of any argument is no embarrassment to its validity. That is how the law develops and evolves.
First, is whether that no-confidence motion is properly a “vote of confidence” as provided for in article 106(6) of our Constitution.
Under our Independence Constitution, the tenure of Ministers and the Government could be halted once the National Assembly passes a Resolution declaring that it has no confidence in the Government by the votes of a majority of all the elected members. This formulation was altered in 2000 to bring in our existing article 106 (6), which provides for a “vote of confidence”.
Is this “vote of confidence” equivalent to a “vote of no-confidence”? Taking our peculiar constitutional system into account, it being a mix of Parliamentarism and Presidentialism, consequent upon the 1980 Constitution, this question must be given an interpretation which will bring finality to it.
Academic and judicial literature points to a difference and distinction between the two. The effect of this has certain consequences which can have a favourable outcome for Government.
Second, if indeed a no-confidence vote is catered for, is the threshold vote 34 members of the Assembly, or 33? This issue has made the rounds. A lasting, certain meaning must be given to the words “the vote of a majority of all the elected members of the National Assembly”.
You have heard it repeated ad nauseam recently. Those on one side say it means 33 and those on the other side say 34. Our Chief Justice too has held it at 33. But another higher Court can be impressed with 34.
Upon applying the juridical reasoning that goes along with construing these matters of the Constitution, an opposite but still cogent and compelling higher number of 34 can be the pronouncement. What is the principle applicable? It is the “half plus one” principle. Applying this, the mathematical outcome is 33.5. Since there is never .5 or half of a National Assembly member, then the next principle to be applied must be, what I call the Saunders principle (out of the Hughes v Rogers case), that is, rounding up to the next whole number which will take it to 34. Why take away from the Government this .5? This half or .5 certainly has a value and must mean something.
What would King Solomon have done especially in the context of the wisdom that came from his lesson that the child must not be cut in two? We all know that he gave the whole child to one of the two parties disputing it. One was left without. And so by analogy a similar thing ought to happen in circumstances like these. One can proffer the argument that for stability and avoidance of anarchy and crisis, this should be the special threshold.
Adam: But Saunders. President of the CCJ, can change his mind, or his colleagues sitting with him can be of a different opinion?
KR: Indeed. But the opportunity must be given for us to reach there to test that. This same Constitution gives us a right of access to the highest court for rulings on these important public issues which have such far-reaching consequences, and which if determined today will make for certainty and finality tomorrow.
This right is not subordinate to others in the Constitution. And then again, just think of the scenario of having to go to an Elections with all the expenses, and trauma and so much more, and then having the final court, in the midst of it all, finding favour with these arguments. Do we un-dissolve a dissolved Assembly?
Adam: What are some other issues which will be resolved one way or the other by this litigation that is ongoing?
KR: A big third one has to do with the issue of whether a dual citizen’s vote is a valid vote which should be counted or not in the proceeding in which it was cast. It was a major contention in the recent High Court. The ruling was that Charrandass’s vote was valid. In my opinion, there are similarly strong arguments to the contrary. Here again finality and certainty will be brought when the appeal reaches the highest level.
Adam: Could you just in simple and summary form tell me what this is all about? The public needs some elucidation too.
KR: This is how it goes. The High Court made a finding that Charrandass held dual citizenship, and hence was disqualified (by article 155 of the Constitution) from being nominated or elected and even sitting in the Assembly. However, notwithstanding having so ruled, the Court validated and allowed the count of his vote in that proceeding.
It rationalized this by using a provision namely article 165(2) which provides 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 the proceedings”.
Another Court can interpret that selfsame article 165(2) and rule that Charrandass’s vote is not saved nor validated. What is validated and saved is the proceeding in which such a person as Charrandass was present and participated in. So his one “YES! YES! YES!” vote by logical deduction should not be counted, he being a person who was not even fit to be nominated, or elected as a member.
That is the interpretation that can be put to that article. And with all due deference to the Learned Judge, I believe that will be the case ultimately.
Adam: So that brings the vote in the Assembly on that famous night back to 32:32?
KR: Yes.
Adam: Is there any other issue of significance in your mind?
KR: Adam, I believe the irreconcilable formulations in article 106(6) and 106(7) should be settled by a judicial interpretation from our highest court; just like what happened in the term limit case which settled the issue that Jagdeo or any other can run a third term.
We in Government and the public at large must know without any bothersome potential disputation what is the meaning of (6) and (7). Of course one says we must resign and the other say we must resign until another President is sworn in. It is an unsatisfactory state of affairs which ought to be resolved by the highest court. And whatever the decision, we will all adhere to.
I will tell you, Adam, whatever the decision at the highest level, it will be liked by one half of this country and disliked by the other half. But knowing my countrymen, it will be respected by all. And that will be so not because the reasoning might be necessarily right, but simply because it is final.
These are some of those issues which certainty and finality will be brought to by permitting the litigation to proceed to our highest court.
Adam: Thank you.
KR: You are welcome.

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