Morally Right. Legally wrong

Dec 03, 2024 Features / Columnists, Peeping Tom

---

…Peeping Tom

Kaieteur News- The situation concerning the disputed parliamentary seat held by the representative of The New Movement (TNM) raises a complex legal issue, particularly regarding the mechanism for recalling a member when the seat was won under a joinder list.

The legal framework and procedural gaps in this case have led to a conundrum that demands careful analysis. The legal issue surrounding the contested parliamentary seat in the National Assembly also highlights the challenges posed by the joinder list system and the absence of a clear legal framework to govern such arrangements

The Alliance for Change (AFC), which, based upon some expressed but untested legal opinion, now wants to use that as the basis for a loss of confidence in GECOM. But why has the same AFC, which is not without legal expertise, not yet approached the Courts, if it is so concerned, asking the Courts to declare the occupant of the seat as a parliamentary squatter.

Given the ambiguity in the law concerning the recall of parliamentarians in the context of a joinder of lists, this column explores the legal complexities involved and challenges the AFC to initiate a legal action to resolve the issue effectively. I begin with explaining the concept of a rejoinder list.

A joinder of lists refers to a practice in proportional representation systems where two or more political parties combine their electoral lists prior to an election, agreeing to share the seats won based on their combined vote. The agreement typically includes the distribution or rotation of seats among the participating parties. This system enables smaller parties to gain parliamentary representation by pooling their votes, thus increasing their chances of surpassing the threshold for seat allocation. However, the process also presents significant challenges in managing the distribution of seats, especially when the parties involved have different expectations or interpretations of the agreement.

In the 2020 general elections, the parties under the joinder agreement won a single parliamentary seat, and by mutual consent, they agreed to rotate the occupancy of this seat. The agreement stipulated that TNM would hold the seat for a three-month term, after which ANUG was supposed to take over. However, the present incumbent from TNM has refused to vacate the seat, triggering calls for his recall. The legal question then arises: who has the authority to effect such a recall?

The recall of a parliamentarian is provided for in Guyana’s legislation, which allows for a member to be recalled if the Representative of the List informs the Speaker that, following meaningful consultation with the party or parties that make up the list, the parties have lost confidence in the member. This recall process is meant to be initiated by the Representative of the List of the relevant political party or parties.

However, a significant issue arises in the context of a joinder of lists. Since there is no single representative for the combined list of parties, the legal framework fails to provide a clear mechanism for recalling a parliamentarian in such circumstances. Each party involved in the joinder has its own representative, but no provision exists for a “Representative of the Joinder List.” This creates a legal vacuum, leaving the Speaker of the National Assembly without the necessary authority to initiate the recall process.

Those urging that the incumbent occupant of the seat should vacate may be valid from a political or ethical standpoint. However, from a legal perspective, the situation is complicated by the absence of a clear statutory framework governing the recall of parliamentarians elected under a joinder of lists. While the mutual agreement among the parties to rotate the seat may be considered binding under political or party agreements, it is not enforceable under the current legal framework. Without a designated Representative of the Joinder List, the Speaker is legally powerless to intervene in this situation.

The AFC, if it is truly concerned about the continued occupation of the seat by the TNM representative, should pursue a judicial resolution. The legal vacuum surrounding the recall process for a joinder of lists should be addressed in court. A judicial review of the situation could compel the court to interpret the existing laws and, if necessary, issue a ruling on whether the current occupant’s actions constitute an illegal occupation of the seat.

The AFC can file a judicial review petition, asking the court to examine whether the current occupant’s refusal to relinquish the seat violates any legal provisions or constitutional principles. In this scenario, the court could issue a declaration on whether the existing recall mechanisms apply to the joinder list situation and, if not, provide clarity on how such a situation should be handled.

The court may also be asked to clarify whether the current legal framework, particularly the absence of a “Representative of the Joinder List,” is an oversight that needs to be rectified.

The AFC’s concerns should be resolved through the appropriate legal channels. Not through expressions of no-confidence. A judicial review or constitutional challenge is the most effective means for clarifying the law and resolving the issue. It is surprising that despite the assertions of ‘squatting” our usual litigious minds are reluctant to approach the Courts. It begs the question whether they know that while they may be morally right, they are legally wrong.

This column insists that until the legal framework is amended or clarified, the Speaker of the National Assembly remains constrained in taking any action to resolve this issue. The AFC, therefore, must rise to the occasion by pursuing legal action that could bring clarity to this complex issue and ensure that the rights of the parties involved in the joinder agreement are respected.

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

(Morally Right. Legally wrong)

---

• joinder list system, Morally Right. Legally wrong, Peeping Tom, The New Movement

---