CCJ President does not doubt absolute majority needed to pass no-confidence motion

May 11, 2019 News

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As the Caribbean Court of Justice (CCJ) yesterday entertained arguments to make a determination on the political stability of Guyana, the court’s President, Adrian Saunders, said that no one is doubting that an absolute majority of all 65 members of the National Assembly is required for the successful passage of a no-confidence motion.
However, the President pointed out that the issue to determine is what constitutes an absolute majority.
According to Saunders the court has to determine whether to adapt the formula of dividing by two, rounding up to the nearest whole number and then adding one, which had been the case in the Solomon Islands, or just using the majority of the uneven number, 65 which is 33.
The coalition government has insisted that an absolute majority of 65 is 34, which was upheld by the Court of Appeal.
Chancellor of the Judiciary Yonette Cummings-Edwards and Justice of Appeal Dawn Gregory had held that 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 it 34 –an absolute majority.
But lawyers for expelled Alliance for Change (AFC) Parliamentarian, Charrandass Persaud, Chartered Accountant Christopher Ram and Leader of the Opposition Bharrat Jagdeo, are maintaining that there is no mention of an absolute or simple majority in the Constitution.
To this end, they are contending that the no-confidence motion was validly passed in the National Assembly on the night of December 21, 2018 with the votes of 33 of the 65 members present and voting which was the ruling by Chief Justice Roxane George. Yesterday was the final day for the hearing of arguments in the cases.
Thereafter, President Saunders informed the lawyers that the court would be informed when the court has reached a decision. Apart from Saunders, the panel of judges also includes Winston Anderson, Jacob Wit, David Hayton and Maureen Rajnauth-Lee.
CALL ELECTIONS IMMEDIATELY
Attorney-at-Law Kamal Ramkarran, who is representing Ram, urged the CCJ to issue an order for the holding of elections immediately once the court finds that the no-confidence motion was validly passed in the National Assembly.
He submitted that if the court finds that the no-confidence motion was properly passed, then as at May 10, (yesterday) Guyana has been in breach of the Constitution for 45 days.
Ram, himself a lawyer, had asked the court for a declaration that the no-confidence motion was validly and properly passed when it was voted for by 33 of the 65 members of the National Assembly; and that it requires that national and regional elections be held no later than Thursday, March 21, 2019, that date being the ninetieth day from December 21, 2018.
Expressing confidence that the CCJ will rule in his favour, Ramkarran said that the provisions of Article 106 (6) and (7) of the Constitution are clear. The lawyer insists that government was defeated by the no-confidence motion provided for under Article 106 (6) of the Constitution which essentially states that the Cabinet including the President, has to resign if the Government is defeated on a vote of no confidence.
Article 106 (7) of the Constitution of Guyana reads, “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.”
“Every single vote of confidence or vote of no-confidence…whatever you call it means that somebody has to cross the floor, in every country, not only in Guyana. It means that somebody has to vote against their list. What is distinct is that you can do it but there may be consequences and those consequences are set out in Article 156 (3) may or may not happen depending on how serious the party which forms the list considers the matter.”
The lawyer was at the time referring to Persaud who voted against the list from which his name was extracted by voting with the Opposition sponsored no-confidence motion “Shocking” was the adjective used by Ramkarran to describe the arguments presented by lawyers for the Government which is being represented by Attorney General Basil Williams, former Attorney General of Belize Eamon Courtaney, and others.
According to Ramkarran, the government is of the view that there is no freedom of expression or freedom of conscience in the National Assembly and that the President is not accountable to the National Assembly. In fact, he told the CCJ that this is not the case.
The lawyer said that the system of proportional representation which Guyana uses does not allow for this.
He urged that the court must make it clear that this is a different era of accountability, fundamental rights, democracy and the rule of law. Lawyers for the Government had in fact contended that it was guaranteed a five-year term under the Constitution.
However, in responding to a question posed by CCJ Judge Winston Anderson, who sits on the panel of judges hearing the cases, as in relates to fix term governments like the United States, Ramkarran made it clear, “In Guyana under Article 61 the President can dissolve Parliament and call elections at anytime. So we don’t have a fix term government in Guyana.”

PRIOR NO-CONFIDENCE MOTION

The no-confidence motion moved in the National Assembly by the People’s Progressive Party (PPP) is not the first for Guyana. This was the contention of Persaud who is adamant that a motion of no-confidence was moved against the then ruling PPP by the coalition government, which was at the time the Parliamentary Opposition, and that this forced the early calling of elections in 2015.
Chrrandass Persaud, through his Attorney-at-Law Sanjeev Datadin, told the CCJ that elections were called in 2015 because of such a vote being moved in the House.
Datadin reminded, “In 2011, we had a government. We had a President and a Cabinet that did not control Parliament.
“What forced the 2015 elections was the current government (then in Opposition) moving a vote of no confidence. In response, the PPP prorogued Parliament knowing that when they came back to Parliament perhaps they would face the no-confidence vote which they probably would have had no chance of winning. They (the PPP) called elections.”
In this regard, Datadin submitted that the election of 2015 was forced by a no-confidence motion brought in the House. He said, “(The elections) were earlier than the five years.”
Datadin seemed to have questioned whether the provisions of Article 106 (6) of the Constitution provided for a no-confidence motion. He however said that he would not belabour that issue.
According to him, prior to the moving of the no-confidence motion everybody knew what it was for, and what was going to happen. He said that following Persaud’s vote, everybody agreed that the government had fallen and that elections had to be held.
Datadin argued, “The (Article) 106 which is the no-confidence motion was not in the Constitution. It was removed in 1980 and came back in 2000. There was a reason why it was brought back. There was a reason why the Constitution Reform Commission wanted to put this power in. They wanted to say there should be the power for a no-confidence motion to be brought and it should be through a vote by the representatives of the list.”
Further on, Datadin was quick to dismiss submissions by Senior Counsel Neil Boston who argued that Persaud was duty bound to vote for the list from which his name was extracted. Boston represents private citizen Compton Reid who was granted a declaration in both the High Court and Appeal Court that Persaud was not eligible to be a member of the National Assembly owing to him being a dual citizen.
Datadin reasoned that Boston’s contention was clearly not the case. “Cleary there are some differences. In a majority of time does everybody go along party lines? Everywhere in the world that happens. There are certainly times everywhere in the world where you do not go exactly as your party wishes,” Datadin told the panel of judges.
Datadin asked, “Do you have the power in Guyana to say that if you do not do that I will recall you from the list?”
“Yes,” he responded to his own question, adding that it has happened before. He added that, “There are instances where you have done your conscience, your freedom and it has not happened.”
“And your vote has been recorded as a bad vote,” said Justice Wit.
Datadin replied in the affirmative and noted that in this case a government has been put out of power; something it wished did not happened.
“They (the government) would like to stay in power…do what they can do to perhaps delay, drag. I don’t want to say that’s what is happening.” He said that the consequence of the passage of the no-confidence motion is unavoidable. There was a vote of 33 to 32 members and elections must be held within three months from its successful passage, he argued.

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