Constitution does not provide for immediate resignation of Cabinet – AG

Attorney General, Basil Williams SC

THE Constitution does not provide for the “immediate” resignation of Cabinet – such a move would cripple the government’s ability to finance the holding of elections by the Guyana Elections Commission (GECOM) or provide critical services to the people of Guyana, Attorney General Basil Williams argued on Tuesday as oral arguments begin on the validity of the No-Confidence Motion in the Court of Appeal.

The Attorney General, who appeared in association with Queen’s Counsel Dr Francis Alexis, the Solicitor General Nigel Hawke, and Attorneys-at-Law Maxwell Edwards and Mayo Robertson, put forward a series of compelling arguments to the Chancellor of the Judiciary (ag), Justice Yonette Cummings-Edwards and Justices of Appeal Dawn Gregory and Rishi Persaud as he seeks to overturn the January 31, 2019 ruling of the Chief Justice Roxane George-Wiltshire in the High Court.

Arguing before a packed court, the Attorney General said, while Article 106 (6) of the Constitution provides for the resignation of Cabinet, including the President, if the Government is defeated in a vote of confidence, it did not specify a time. He argued that timeframes were only provided in Article 106 (7). According to Article 106 (7): “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 elected members of the National Assembly determine, and shall resign after the President takes the oath of office following the elections.”

The Attorney General submitted to the court that the Chief Justice, in handing down her ruling, looked at Article 106 (6) in isolation when both Articles 106 (6) and 106 (7) ought to have been read conjunctively because of the word “notwithstanding.” He emphasised that the constitution must be interpreted in a holistic manner.

In defending his position, he referenced to the case the Minister of Home Affairs v Fisher, in which it was stated the Constitution is a radically different document which calls for a different and enlightened approach by the Court to its interpretation. In that case, Lord Wilberforce stated that: “….“… it would be to treat a constitutional instrument such as this as sui generis, calling for principles of interpretation of its own, suitable to its character as already described, without necessary acceptance of all the presumptions that are relevant to legislation of private law.” Williams also alluded to the case of Attorney General of Grenada v The Grenada Bar Association, in which the then Chief Justice, Sir Denis Byron stated that the Constitution requires that “a broad, generous and purposive approach be adopted to ensure that its interpretation reflects the deeper inspiration and aspiration of the basic concepts on which the Constitution is founded.”

In that case, Sir Byron had underscored the importance of applying context to the provision taking into consideration the other provisions of the Constitution.
Maintaining that Article 106 (6) and Article 106 (7) ought to be read together, the Attorney General argued that the Chief Justice’s decision sever Cabinet from Government when the two are symbiotic.

“Once there is a Government, there ought to be a Cabinet. Once there is a President there ought to be a Cabinet, and once there is a Parliament there ought to be a Cabinet,” he submitted.

Given that the two sub articles ought to be read together, Williams told the Court that the use of the word “notwithstanding,” allows Article 106 (6) to be subject to Article 106 (7) as such there is no need for Cabinet and by extension Government to resign before a new President is sworn in. “Sub-article (7) prevails over sub-article (6) thus while sub-article (6) states that the Cabinet including the President shall resign once there is a successful no-confidence motion, this resignation is stopped by sub-article (7) which gives a timeframe of three months or longer as the case maybe,” the Attorney General submitted to the court.

He argued that the High Court implanted the word “immediate” into the provision.
The Attorney General also submitted to the Court that by instructing Cabinet to resign with immediate effect following the No-Confidence Motion on December 21, the High Court stripped the Government of a critical arm, with key functions for the smooth management of the country. The Constitution states that Cabinet shall aid and advise the President and be collectively responsible to Parliament. Pointing to Article 50 of the Constitution, Williams stated that Cabinet is among three supreme organs of democratic power in Guyana, the other two being Parliament and the President.

“Cabinet is a supreme organ of democracy in Guyana and if one were to remove Cabinet, that would be tantamount to removing a massive pillar that keeps our democracy afloat,” he told the Chancellor and Justices of Appeal. The Attorney General said under Article 171 (2), Cabinet performs democratic functions with regard to the approval of finances for the smooth governance of the country including “for the payment, issue or withdrawal from the Consolidated Fund or any other public fund of Guyana of any moneys not charged thereon or increase in the amount of such a payment, issue or withdrawal.”

No funding
He stressed that “if there is no Cabinet, there is no funding,” warning that if the situation is allowed to continue there would be no funding to hold elections. As it is currently, the Guyana Elections Commission (GECOM) has $3B for the conduct of House to House Registration. It would need Cabinet to make representation on its behalf to the National Assembly for additional funds to be sourced from the Consolidated Fund. “The Cabinet has a critical and indispensable role to play in the financing of the daily operations of the Government of Guyana,” Williams reiterated.

Anil Nandlall, who is representing the Opposition Leader, Senior Counsel Rafiq Khan who appeared on behalf of the Speaker of the National Assembly, Dr. Barton Scotland who was also present, Kamal Ramkarran – Christopher Ram’s attorney and Sanjeev Datadin were among the attorneys present in the court room on Tuesday. Arguments will continue today in the cases Attorney General v Christopher Ram and others, and Attorney General v The Speaker and others.