Abuse of process?

Oct 20, 2019 Features / Columnists, Peeping Tom

On the 31st January 2019, the Chief Justice of Guyana ruled that the no-confidence motion of December 21, 2018 was validity passed. She also indicated that the Cabinet was resigned by operation of law.
Following that ruling, meetings of Cabinet ceased while the government pursued appeals of the Chief Justice’s decision. The appeals went all the way to the Caribbean Court of Justice (CCJ).
On the 18th June 2019, the CCJ upheld the validity of the vote of no-confidence. It did not overturn or say anything which would have contradicted the Chief Justice’s ruling about Cabinet either resigned or being resigned by operation of law.
There is therefore no precedent from the CCJ to overrule the position that once a no-confidence motion was validity passed, Cabinet, including the President, has to resign or is resigned by operation of law.
The CCJ in fact confirmed the position of the Chief Justice in her ruling of January 31st 2019. In its ruling of 18th June 2019, it said this:
“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 to render them intelligible. Their meaning is clear and it is the responsibility of the constitutional actors in Guyana to honour them.”
In other words, the CCJ was saying that the Constitution was straightforward and can be easily understood. It said the constitutional actors should honour its provisions. The CCJ did not see the need for any mandatory orders because it expected the constitutional actors to do the honourable thing.
The CCJ went on to restate the position which is provided for in the Constitution. And that is that “Upon the passage of a no-confidence motion, the Article requires the resignation of the Cabinet, including the President.”
The CCJ therefore was not setting any precedent by indicating that the Constitution provides for the resignation of the Cabinet. This was already the position taken by the Chief Justice in her ruling of 31st January 2019 – that Cabinet either resigned or was resigned by operation of law.
It is therefore difficult to understand how an approach to the Constitutional Court of Guyana calling for an order for the Cabinet to resign can be deemed an abuse of process. There is no precedent by the CCJ which allows the Cabinet to continue to meet once a no-confidence motion is validly passed.
The CCJ declined to issue a mandatory order because it saw no need to do so. It said the interpretation of the provision of the Constitution required no gloss on the part of the Court. The reluctance of the CCJ to issue a mandatory order on this issue does not create a precedence which permits the lawfulness of Cabinet after a no confidence motion is validly passed.
The principle of precedent or ‘stare decis’ means that a lower court is usually bound by a decision of a higher court on the same points of law and usually in similar circumstances. This is known as a binding precedent.
A judgment of the court has two parts. The ‘ratio decidendi’ which deals the principles of the law which was used in arriving at the decision. This is the section of any judgment which is legally binding and which can be used as precedent.
The other part is what is known as ‘obiter dicta’ and this part is not legally binding since it does not establish any legal principle. A reluctance on the part of the Court not to make a mandatory order but to expect that the parties would behave honourably is part of the ‘obiter dicta’ and is not legally binding and therefore cannot constitute a precedent.
In relation, to the resignation of Cabinet, the CCJ stated a binding principle that the cabinet, including the President, is required to resign upon the passage of a no-confidence motion.

(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper)