No-confidence motion appeal…Govt. brings Grenadian constitutional expert to argue “absolute majority”

Mar 13, 2019 News

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“Why not just the greater number? Does a majority (of all elected members of the National Assembly) require the court to impose a fraction?”
These were some of the concerns raised by Justice of Appeal Dawn Gregory to Queen’s Counsel (QC) Dr. Francis Alexis, a former Attorney General of Grenada, who has been hired by the government to argue its case at the Court of Appeal in relation to the no-confidence motion matters.
During a seven-hour hearing yesterday, Justice Gregory, who is on the panel of judges, including Chancellor of the Judiciary Yonette Cummings-Edwards and Justice Rishi Persaud browsed through thick piles of written submissions and records of appeal filed by various lawyers.
The case at hand is that of the Attorney General v Christopher Ram, Minister of State Joseph Harmon, in his capacity as representative of A Partnership for National Unity (APNU), and Speaker of the National Assembly, Dr. Barton Scotland.
Among other things, on January 31, last, the Chief Justice Roxane George ruled that the No-Confidence Motion was validly passed since its resolution was carried by a majority of 33 to 32 elected members of the National Assembly in accordance with Article 106 (6) of the Constitution which reads, “The Cabinet including the President shall resign if the government is defeated by a vote of majority of all elected members of t he National Assembly on a vote of confidence.”
And this, Justice George further ruled, should have caused the immediate resignation of Cabinet, including the President, in accordance with Article 106 (7) of the Constitution of Guyana.
According to that Article, “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, and shall resign after the President takes the oath of office following the election.”

MISCALCULATION
QC Alexis argued that Justice George erred in ruling that the No-Confidence Motion, upon a division of 33-32 members of the National Assembly, was validly passed on December 21, 2018. Amplifying arguments that were already raised at the High Court, QC Alexis insisted that there was a miscalculation of votes, and that in order for the motion to be passed an “absolute majority” of all elected members was required.
According to him, in calculating the “absolute majority”, the 65 members of the National Assembly had to be divided by two, which would result in 32.5, a fraction which one has to be added to, bringing the total to 33.5, which now has to be rounded to the higher number, giving 34.

QC Alexis submitted, “But you can only round up if a fraction is the result. A fraction comes into the exercise. You cannot get away from that. A fraction is rounded up, not down, left alone. That’s why the fraction was rounded up in the case of Hughes v Rogers.”
He argued that the Chief Justice failed to apply this rule when arriving at a majority, since, in her judgment, she explained that it was not required, given that it was an odd number House.
The longstanding jurist also argued that passing a No-Confidence Motion is not on the same level as passing an ordinary Act, which would require a simple majority, that is, a majority of all elected members present and voting on a particular exercise.
However, the Chancellor reminded counsel that the Chief Justice ruled that the “plus one factor” is only applicable when there is an even number House. But counsel insisted that Justice George was erroneous in making such a ruling.
In support of this contention, he referenced a ruling by Sir Dennis Byron, former President of the Caribbean Court of Justice (CCJ), who according to him, held that the courts must ensure that its interpretation of the Constitution expresses deeper inspiration and aspiration of the basic concepts of the Constitution.
“It’s not just looking at the Constitution word for word without a concept. That (view) should include stable government and the collective responsibility of the Cabinet.”
Another view, he said, is that a No-Confidence Motion is not likely to be passed, and if one should, an “absolute majority” of all elected members is required in conformity with a ruling by Byron in the case of the Attorney General of Guyana v Cedric Richardson.
QC Alexis urged the court to go back to the traditions and usage that were current at the time when the framers of the Constitution were in writing. He underscored,” Framers do not operate in a vacuum,” adding that, “If we are going to move away from a majority of all members it cannot be moved away overnight. And if so, a strong case has to be made out.”

GUARANTEED FIVE YEARS
Attorney-at-law Maxwell Edwards, who is also representing the State, contended that the government cannot be defeated by the passage of a No-Confidence Motion, since it is guaranteed five years in office pursuant to Articles 70 (3) of the Constitution which reads, “Parliament, unless sooner dissolved, shall continue for five years from the date when the National Assembly first meets after any dissolution and shall then stand dissolved.”
According to him, this Article is inconsistent with Section 5 of the Constitution Amendment Act No. 17 of 2000, which introduced the No-Confidence Motion of the laws of Guyana.
Explaining the inconsistency, Edwards said that this would now mean that government could lose its five-year term, which he says, subverts, impairs, dilutes and water downs the provisions of Article 70 (3).
To this end, the lawyer argued that Article 106 (6) must be subject to Article 70 (3), while noting that the Chief Justice erred when she failed to interpret Articles 70 (2) which states, “The President may at any time by proclamation dissolve Parliament,” and Article 70 (3), conjunctively.

“Every government looks forward to serving five years, not because they want to, if they had it their way, they would serve 10, but the Constitution guarantees that five years.”

NO IMMEDIATE RESIGNATION
Meanwhile, Attorney General Basil Williams argued that Justice George erred when she ruled that the President and Cabinet ought to have immediately resigned upon the passing of the No-Confidence Motion. Williams contended that the Constitution does not provide for the immediate resignation of the President and Cabinet.
“What if the three months expires and no elections are held within the provisions of Article 106 (7)?” he asked. The Attorney General submitted that the Constitution makes no provisions for the Government to hold an election. That power, he stated, is entrusted with the Guyana Elections Commission (GECOM), which is authorized under the Constitution to conduct, run preside over and conduct elections.
He said, “To remove these powers from GECOM would be an entrenchment. The government cannot hold an election. It is an absurdity. This will undermine the philosophy of no political interference in the electoral process.”
Moving back to Article 106 (7) and the wording therein “government shall resign”, Williams asked whether this was a directive or is mandatory. He said that the court has to look at the effects of non-compliance with Article 106 (6), and if such is great, then the court would find that the provision is rather a directive.
Further in his submissions, the Attorney General argued that the immediate resignation of the President and Cabinet will have drastic ramifications on the country.
“No financial bills can be passed in the House if there is no Cabinet. How will you get monies to pay salaries; monies to hold elections,” Williams said.
According to the Attorney General, Article 106 (7) should have been constructed to read, “The government shall remain in office and GECOM should hold an election.” This, he added, would be a more purposive construction of that Article.

NOT THE SAME
Harmon’s Attorney-at-law Roysdale Forde contended that a vote of confidence provided for in Article 106 (6) and a motion of no-confidence, which relates to the accountability of government, are two completely separate and distinct parliamentary devices.
According to him, there are three bases on which a motion of no-confidence is properly construed. Those he outlined in court; one of them being that the executive must be accountable to the House. Forde said that in Guyana’s case, the President is elected by the people.
He argued that Article 106 (2) does not set out these three principles and that the motion debated and purportedly passed is not provided for under Article 106 (6), which he argued, does not invite or permit a motion of no confidence, but rather a vote of confidence.
Forde told the panel of judges that the government is allowed to bring a vote of confidence in the National Assembly to test its stability and strength, and if government is defeated, the consequences of Article 106 (6) kick in.

Winding down, Forde argued that Justice George erred when she failed to read Articles 106 (6) and 106 (7) disjunctively, rather, he said, she read them conjunctively which made them inconsistent with Articles 178 (1) (c) and Article 183.
Article 178 (1) says, “The Office of the President shall become vacant if the person holding it:
(a) dies; or (b)resign it by writing under his hands addressed to the Speaker; or ceases to hold it by provisions of Articles 92, 179 and 180.
This matter is continuing.

 

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