…chief justice to deliver ruling today in landmark case

THE government cannot operate without a Cabinet, such would be a recipe for chaos, Attorney General (AG) Basil Williams maintained, as he argued that the insertion of sub-sections 6 and 7 into Article 106 of the constitution, which provides for a no-confidence motion, leads to an ambiguous interpretation and absurd construction of the Article.

The attorney general and Attorneys-at-Law Kamal Ramkarran and Anil Nandlall returned to the High Court on Wednesday to answer a question posed by Chief Justice Roxane George-Wiltshire in the constitutional case – Christopher Ram v The Attorney General and Leader of the Opposition. Ram has asked the court to rule that the December 21 vote of no-confidence was validly passed, and that Cabinet must resign.

Ahead of her ruling, which is scheduled for today, the chief justice asked the attorneys to answer the following question: “Whether, if the government is defeated on a no-confidence motion, the resignation of Cabinet takes immediate effect?”

The question was asked on the basis of Article 106 (6) of the constitution, which states that “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.”

Responding in the negative to the question posed; the AG said there was no timeframe stated in Article 106 (6). He told the court that the functions and responsibilities of Cabinet are not only clear, but necessary to the effective functioning of the government. In laying the foundation for his arguments, he pointed out that Article 106 provides for the establishment of a Cabinet including its composition, duties and functions. It was contended that subsections (6) and (7), which were inserted into Article 106 by Act 17 of 2000, are inconsistent with the purpose of the Article.
Using Article 106 (2) as an example, he pointed out that Cabinet’s functions are to aid and advise the President and give guidance to the government. It is also collectively responsible to Parliament.

“It is respectfully submitted that the effect of Article 106 (2), is, once there is a government, there must be a President and Cabinet and once there is a Parliament there must be a Cabinet.

“It is further submitted that Article 106 (6) in so far as it purports to sever the connection between Cabinet and government is in collision and is inconsistent with the provisions of Article 106 (2),” Williams told the court.

He further contended that upon creating Article 106 (7) of the constitution, the framers must have intended to avoid a directionless, uncontrolled and uncoordinated government to be in office even for three months. That article allows for the government to remain in office until a new President is sworn in.

“A government without a President and Cabinet with 27 ministers acting individually is a recipe for chaos,” the attorney general said, while contending that there will be no coordination if the gonstitution were to be interpreted in a narrow and legalistic way. What will happen in a case of a natural disaster or public disorder, he questioned, while asking too whether the ministers would be in breach of the law if they were to meet on such events.

“It is respectively submitted that the framers could not have intended such bizarre consequences and since no time period is mentioned in Article 106 (6), the word “notwithstanding” connects Article 106 (7) to Article 106 (6) and provides the time frame for the resignation of the Cabinet, which, being part of the government, exists as long as the government exists and would accordingly resign when the government resigns,” he argued.

He put to the court that had it been the intention of the framers to treat the government separately and apart from Cabinet, they would not have used the word “notwithstanding” in Article 106 (7). Attributing to the work of Professor Helen Xanthaki, the AG said in Thorton’s Legislative Drafting, 5th Edn, it was stated that where one provision is inconsistent with another provision in the same law or other law, the drafter ought to make it clear which provision is to prevail.

The AG told the court in this case, Article 106 (7) overrides the Article 106 (6). The former articles states “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 election.”

NANDLALL FLIPS

This argument, he posited, was once supported by Anil Nandlall – the former Attorney General under the People’s Progressive Party/Civic (PPP/C) government, who is now attempting to strip the current government of its powers. While providing the court with supporting evidence, the AG said Nandlall in a letter dated February 4, 2015 and addressed to the then Finance Minister Ashni Singh answered a question posed by Country Representative of the Inter-American Development Bank (IDB), Sophie Makonnen.

In that letter Nandlall said: “As indicated above, the said proclamation is unnecessary. In any event, under the Westminster Constitutional model, an Executive Government continues in office with unaltered powers until a new Executive Government assumes office. This principal of continuity of the Executive remains unaffected by the dissolution of Parliament.

Therefore, dissolution of Parliament does not affect the authority of the Government to enter into a new loan or grant agreements, unless of course, the agreement expressly requires the input of the Parliament.”
However, Kamal Ramkarran, who is representing the interest of Ram, told the court that Cabinet must resign immediately upon the defeat of government by a vote of no-confidence. Zooming in on the word “if” in Article 106 (6), he said it specifies the conditions upon which Cabinet must resign. He said because the conditions laid out in Article 106 (6) were met, the resignation of Cabinet ought to have been immediate and automatic. Ramkarran provided the court with a list of definitions for the word “if.” It was pointed out that Wednesday marked 40 days since the no-confidence motion was declared passed by the Speaker of the National Assembly, Dr. Barton Scotland.

Rebutting the arguments put forward by the AG, he said Article 106 (7) which addresses ‘government’ does not and was not intended to override Article 106 (6) nor is Cabinet and government the same.

Nandlall, representing the Leader of the Opposition Bharrat Jagdeo, also responded in the affirmative, noting that there should be an automatic operation of the law. He said when a government is defeated by a majority in the House it cannot be business as usual.

While Article 106 (6) does not specify a timeframe, Nandlall said the court is not authorised to ignore the expressed clear language of the constitution. “One must read the constitution with the acceptance that the framers intended exactly what it said,” he said, while noting that only when the expressed language leads to absurdity that the court can offer a different position on it.

According to him, there is a clear distinction between the Cabinet and the government and the resignation of the former will not result in catastrophic events as suggested by the AG.

Maintaining that Cabinet should resign, he said while Williams has argued that the government cannot function effectively without Cabinet, it is the permanent secretaries and other public officials who execute the work of government. “Your honour more than one month has passed since this no-confidence motion was passed by the National Assembly. There is no order of any court stopping time from running and indeed, there can be no such order, but the Cabinet has not resigned in complete defiance of the constitution,” Nandlall told the court.

But the AG, who rebutted the arguments of both Ramkarran and Nandlall, said that Article 106 (6) and Article 106 (7) ought to be comparable with the provisions of the constitution that existed prior to 2000, and must conform to them.