No-confidence motion appeal…Lawyers argue that Court has authority to set elections timeframe in motion

Mar 15, 2019 News

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Attorney-at-law, Anil Nandlall, is among the lawyers arguing that the Appeal Court has the jurisdiction to order the elections timeframe be set in motion in keeping with the constitution.
Yesterday, he urged the panel of judges, which consisted of Chancellor of the Judiciary, Yonette Cummings-Edwards, and Justices of Appeal Dawn Gregory and Rishi Persaud, to use the unlimited power to ensure that the constitution is upheld.
The Court of Appeal continued hearing arguments in the case of Attorney General versus Christopher Ram; Minister of State Joseph Harmon, in his capacity as representative of A Partnership for National Unity (APNU); Speaker of the National Assembly, Dr. Barton Scotland; and Bharrat Jagdeo in his capacity as Leader of the Opposition.
Nandlall had previously submitted that the Government’s failure to set a date for the holding of the next Regional and General Elections following the no-confidence motion is a deliberate move to delay elections beyond the period stipulated by the Constitution.

“Article 106 (7) of the Constitution of Guyana, states, “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.”
He noted that the Guyana Elections Commission (GECOM) is an independent body, which has the leverage and capacity to manage an elections with urgency.
Nandlall said, however, that while the President is purported to wait on GECOM’s preparedness, it is the executive that must give the Commission an indication to prepare for elections.
Attorney-at-law, Kamal Ramkarran, noted that in order for that decision of the Court of Appeal to have meaning, the Court is empowered to say that elections have to be held forthwith or within a period not later than 31 days from the date of the decision.
Ramkarran is representing political commentator, Christopher Ram, in a no-confidence motion-related case.
“If we were to continue without an extension and there is no evidence whatsoever that there is going to be an extension, or even if the date is set, then we continue on the path of an unconstitutional government; a government operating outside of the expressed terms of the Constitution,” he said.
Nandlall, a former Attorney General, (AG) had previously argued that although Cabinet ceased to exit after the passage of the No-Confidence Motion on December 21, 2018 in the National Assembly, Finance Minister Winston Jordan still has the power to budget funds for the holding of general elections, even though the Minister cannot return to Parliament at this point.
During his submissions to the court, Nandlall explained that if Minister Jordan or a new minister is appointed by the President after the holding of elections, that Minister will lay in Parliament a statement accounting for those monies budgeted for those elections.
He sought to dismiss previous arguments by Attorney General Basil Williams, who he said, is trying to create panic by painting the picture that the country will collapse if monies are not circulated, as a result of there no longer being Cabinet to approve funds.

According to him, Articles 218, 219 and 220, which speak to the withdrawal of monies from the Consolidated Fund of other public fund, when read consecutively, make provisions for monies to be withdrawn to offset the nation’s expenses.
On Tuesday, 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 submitted that Chief Justice Roxane 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, Queen’s Counsel 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.
Towards the end of yesterday’s hearing, the Chancellor announced that notices will be sent out about the date for a decision in the appeal filed by the Government.

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