At Post-Judgment Hearing… CCJ urges leaders to honour Constitutional timeframe for elections

Jul 13, 2019 News

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– says Govt. in “caretaker” mode
– GECOM must also abide by provisions; Chairman’s appointment to be concluded with utmost urgency

By Feona Morrison

Though it pointed out that the Coalition Government is currently in “caretaker” mode, having been defeated on a vote of No-Confidence which was passed in the National Assembly on December 21, 2018, the Caribbean Court of Justice (CCJ) yesterday held that it is not the role of the court to issue a date on, or by which elections must he held.

While the court refrained from giving orders directing the date for such elections, it noted that the timeframe is outlined in the Constitution, which stipulates within three months, unless extended by two-thirds of the National Assembly.
In fact, the CCJ said that it was for the President, Leader of the Opposition, Parliament and the Guyana Elections Commission (GECOM), to decide on a date for elections.
President of the CCJ, Justice Adrian Saunders was among the five judges who heard the consolidated No-Confidence motion cases and the challenge to the President’s unilateral appointment of Justice (retired) James Patterson as chairman of GECOM.
During a Post-Judgment hearing yesterday at the CCJ’s Port of Spain, Trinidad and Tobago Headquarters, Justice Saunders, among other things, stayed clear of issuing coercive orders, which were requested by the Opposition. Notwithstanding this, the court ordered that Attorney General Basil Williams pay costs.
The court’s announcement comes at a time when Leader of the Opposition Bharrat Jagdeo, through his lawyers, had asked the regional court to make an order that the President, dissolve Parliament, and by proclamation, appoint a date for the holding of elections no later than September 18.

In affirming the CCJ’s position on the matter, Justice Saunders noted, “It is not, for example, the role of the court to establish a date on, or by which the election must be held or to lay down timelines or deadlines that in principle are the preserve of political actors guided by constitutional imperatives. The court must assume that these bodies and personages will exercise their responsibilities with integrity and in keeping with the unambiguous provisions of the Constitution bearing in mind that the No-Confidence motion was validly passed as long ago as December 21, 2018.”
Justice Saunders reasoned that due observance of constitutional democracy and the rule of law in Guyana rests, in large measure, with the conduct of the various branches of government—the President and the Cabinet, the Parliament and the Judiciary. All, he said, must be faithful to the spirit and letter of the Constitution and operate within the parameters given to each by the Constitution.
Given that the CCJ affirmed that the No-Confidence Motion was validly passed with the votes of 33 members of the 65-member National Assembly last December, it thereby triggered the provisions of Articles 106 (6) and (7), compels the resignations of the Cabinet including the President and the holding of general election, Justice Saunders stated.
Article 106(6) and (7) of the Constitution states as follows: 106 … (6) “The Cabinet including the President shall resign if the Government is defeated by the vote of a majority of all the elected members of the national Assembly on a vote of confidence.”Further (7) adds, “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 determine, and shall resign after the President takes the oath of office following the elections.”
According to Justice Saunders, “Article 106 of the Constitution invests in the President and the National Assembly (and implicitly in GECOM), responsibilities that impact on the precise timing of the elections which must be held. It would not therefore be right for the Court, by the issuance of coercive orders or detailed directives, to presume to instruct these bodies on how they must act and thereby pre-empt the performance by them of their constitutional responsibilities.”
“The judiciary interprets the Constitution. But as we intimated in our earlier judgment, these particular provisions require no gloss on the part of the Court in order to render them intelligible and workable. Their meaning is clear and it is the responsibility of constitutional actors in Guyana to honour them. Upon the passage of a vote of no confidence, the Article requires the resignation of the Cabinet including the President,” Justice Saunders noted.
He continued, “The Article goes on to state, among other things, that notwithstanding such resignation, the Government shall remain in office and that an election shall be held “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 determine …” The Guyana Elections Commission has the responsibility to conduct that election and GECOM too must abide by the provisions of the Constitution.”
The CCJ Judge said that given the passage of the No-Confidence motion on December 21, 2018, a general election should have been held by March 21, 2019, unless a two-thirds majority in the National Assembly had resolved to extend that period. He added that this is yet to be done. In January, court proceedings were filed challenging the validity of the No-Confidence vote, which effectively placed matters at a standstill.
The CCJ rendered its decisions on June 18, and there is no appeal from that judgment.
CARETAKER GOVERNMENT
Moreover, Justice Saunders, said that it was important for the court to note that while government is to remain in office, notwithstanding its defeat and the resignation of the President and Cabinet, Article 106 envisages that the tenure in office of the Cabinet, including the President, after the Government’s defeat, is on a different footing from that which existed prior to the vote of no confidence.
By convention, he added that government is expected to behave during this interim period as a caretaker and so restrain the exercise of its legal authority. The CCJ Judge explained that it is this caretaker or interim role that explains the three months deadline in the first instance that the Article lays down, in principle, for the holding of the fresh election.
In this regard, he said that Chancellor of the Judiciary Yonette Cummings-Edwards, citing Peter Hogg, the Canadian constitutional expert, was right to note that, “…The government continues in office as a caretaker government or an interim government until the next election ensues and a President is appointed (or reappointed) depending on the results of that election.”
UTMOST URGENCY
In relation to the GECOM Chairman case, the CCJ held that it is now with utmost urgency that the President and Leader of the Opposition conclude the appointment of a chairman. Against this backdrop, the court said it saw no need to issue consequential orders and directions in light of Justice Patterson voluntarily resigning from the post.
All the Judges were in agreement that, “It is now a matter of the greatest public importance that the President and Leader of the Opposition should as soon as possible embark upon and conclude the process of appointing a new GECOM chairman. This imperative is now of the most utmost urgency in light of our decision in the No-Confidence motion cases, that the motion was validly passed, thereby triggering the need for fresh general elections.”
The court said that it was relying on Paragraphs 28 and 29 of its judgment in this case.
Paragraph 28 of the judgment reads, “Once the President and the Leader of the Opposition have hammered out a list of names not unacceptable to the President, the list, comprising the six persons, must then formally be submitted to the President by the Leader of the Opposition and the President must then select the Chairman from among those names. This approach gives the President a role in the identification of the six names, but it obviates the possibility that, after the formal presentation of the list, the President could suggest that one or more of the names, or indeed the entire list, is ‘unacceptable’. Unilateral appointment by the President in keeping with the proviso to Article 161(2) can hardly be an option if the Leader of the Opposition demonstrates a willingness to engage in good faith the process outlined above.”
Paragraph 29 of the judgment adds, “As we stated earlier, the President’s power to appoint the Elections Commission Chairman in keeping with Article 161(2) is a constitutionally prescribed responsibility that is subject to judicial scrutiny. In reviewing what transpired here between 22 November 2016 and 19 November 2017, it is evident to us that the President was not entitled to lay down, as a precondition to considering a nominee, eligibility requirements that were additional to or at variance with those prescribed by the Constitution. So, for example, it was unfortunate that the President considered or was advised that an acceptable candidate should either have or be deemed to have wide electoral knowledge and experience. As Counsel for Mr. (PPP Executive Member Zulfikar) Mustapha pointed out, it is not unusual for a distinguished judge to have gone through her entire judicial career without trying a single elections case.”
DECLARATIONS AND ORDERS
In relation to the No-Confidence motion cases, the CCJ made the following declarations and orders:
a) The provisions of Article 106(6) and (7) of the Constitution apply to a No Confidence motion; (b) Thirty-three votes constitute a majority of the 65 member National Assembly; (c) Mr. Charrandas Persaud was ineligible to be elected to the Assembly by virtue of his citizenship of Canada but his vote on the motion of no confidence was valid.
Further the court declared, (d) Nothing in the anti-defection regime established at Article 156(3) of the Constitution rendered Mr. Persaud incapable of casting his vote on that motion in the manner in which he did; (e) The National Assembly properly passed a motion of no confidence in the Government on 21 December 2018; (f) Upon the passage of this motion of no confidence in the Government, the clear provisions of Article 106 immediately became engaged.
Costs were awarded to Jagdeo and Persaud respectively to be taxed if not agreed. In each case, those costs are to be paid by Attorney General Basil Williams. In another case, costs were awarded to Jagdeo and are certified fit for two counsel. Chartered Accountant Christopher Ram, who had asked the CCJ to validate the No-Confidence motion, was also awarded 60 percent of his costs, to be taxed if not agreed, and to also be paid by Williams.
The CCJ yesterday also declared that the process used to appoint Justice Patterson was flawed and in breach of the Constitution. In this regard, the court further declared that his appointment was void. The Court ordered that costs be paid by Williams to the appellant, PPP executive member Zulfikar Mustapha, who challenged Patterson’s appointment.
Following the delivery of the court’s judgment on June 18, Justice Saunders had fixed a post-judgment hearing the following Monday for parties to decide on consequential orders to be made, as well as court costs. He had made it clear that if the parties were unable to arrive at consensus, the court would intervene and make the necessary orders, as it saw fit.

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