Appeal Court rules 2 to1 …Govt. remains in office – No-confidence vote invalid

Mar 23, 2019 News

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By Rehanna Ramsay

Guyana got its answer yesterday afternoon from the nation’s highest court. An “absolute majority” of 34 votes is required. With that, the Court of Appeal by majority decision of 2-1 disagreed with the

reckoning that 33 Members of Parliament (MPs) can effectively pass a No-Confidence Motion against the Government.
The ruling which lasted close to three hours resulted in mixed reactions from the attorneys, media operatives and members of the public present at Court of Appeal in Kingston, Georgetown.
This came on the heels of 90-days expiration date set out in the Constitution following the initial passage of a no-confidence motion on December 21, last.
Even as the Appeal Court handed down the decision, yesterday, Opposition-led protests were being held countrywide. The Opposition has been calling for the holding of general elections, but as a matter of urgency, removal of the government which it deemed illegal from March 21.
But in a twist of events, Appellate Judges, Yonette Cummings-Edwards and Dawn Gregory upheld the argument that an absolute majority is required for the passage of no-confidence motion against the Government.
The two Judges agreed an absolute majority in the context, calls for 34; not 33 votes of all elected members of the National Assembly. Justice Rishi Persaud, on the other hand disagreed. He ruled the no-confidence motion was validly passed by 33 to 32 votes. That decision was previously handed down by Chief Justice Roxane George at the High Court.
On January 31 last, Chief Justice (CJ) George declared that “In our 65-member National Assembly, a majority of all elected members, in accordance with the principle of ‘one over all rivals combined’, is thirty-three (33) members.”
The CJ had ruled in three matters stemming from the no confidence motion passed in the National Assembly on December 21 last.
In the first case, Compton Reid, a private citizen, had challenged the vote of expelled Alliance For Change (AFC) Parliamentarian Charrandass Persaud. Persaud had cast a vote in favour of the no-confidence motion against the Coalition Government, which he represented.
Reid challenged the validity of the motion on the basis that Persaud is not qualified for elections as a member of the National Assembly due to his dual citizenship by virtue of his allegiance to Canada, a foreign power.
In another case, the Government had approached the Court for an interpretation of the Constitution as it relates to the majority vote count for the successful passage of no-confidence motion.
And the third case, Attorney-at-law Christopher Ram called for a declaration that the passage of the no-confidence motion requires the resignation of the Cabinet including the President with all convenient speed.
Ram asked the court to declare that the general elections be held within 90 days from the passage of the motion or within such extended period as the National Assembly shall determine by resolution support, by not less than two-thirds of the votes of all elected members, which was stipulated by the constitution.
Ram contended that he has several grounds for the application, which includes that on December 21, 2018, on a vote of all elected members of the National Assembly, the government was defeated on a vote of confidence brought on a motion by the Leader of the Opposition, which was passed with 33 votes in favour and 32 against.

Ram argued that under Article 106 (6) of the Constitution of Guyana, the cabinet, including the President, has to resign if the Government is defeated on a vote of no-confidence.
However, in her ruling yesterday, Justice Cummings-Edwards said the Chief Justice’s calculation of 33 votes was for a “simple majority.” She held that a no-confidence motion cannot be upheld using the same yardstick that is applied for the passage of ordinary legislation, since it results in much more grave circumstances — the toppling of a government.
Both Appellate Judges (Cummings-Edwards and Gregory) alluded to the submissions proffered by Queen’s Counsel (QC) Dr. Francis Alexis, a former Attorney General of Grenada, who has been hired by the Attorney General of Guyana Basil Williams, to argue the government’s case at the Court of Appeal in relation to the no-confidence motion matters.
The Queen’s Counsel had amplified the arguments that were already raised at the High Court.
He 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, but since the .5 represents half and there is no half-member, that number needs to rounded off to 33, and add one more, making the majority 34 –an absolute majority.
QC Alexis had also 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 ordinary laws, which would require a simple majority, that is, a majority of all elected members present and voting on a particular exercise.
The lawyer had insisted that Justice George was erroneous in making such a ruling. He also rebutted arguments presented by attorney Anil Nandlall who appeared on behalf of leader of the Opposition, Bharrat Jagdeo.
Meanwhile in affirming the ruling by Chief Justice, Justice Rishi Persaud said, “With the greatest respect to Dr Alexis, the formula of firstly dividing by half then rounding up to the nearest whole (number) plus 1 has no application here. It does not amount to logic and common sense where there is an uneven number of members, unless of course that specific formula is prescribed.”

Additionally in relation to the dual citizenship issue, all of the Judges noted that there was no evidence before the court, which suggests that former government parliamentarian Charrandass Persaud knew he was disqualified from being a member of the National Assembly owing to him being a dual citizen of Guyana and Canada.
They agreed that Persaud’s dual citizenship would not invalidate his vote on the grounds set out in Article 165 (2) of the Constitution.
According to that Article, “The Assembly may act notwithstanding any vacancy in its membership … (even) after any dissolution of Parliament and the presence or participation of any person not entitled to be present or to participate in the proceedings of the Assembly, shall not invalidate those proceedings.”

 

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