CCJ upholds no-confidence vote

President of the CCJ, Justice Adrian Saunders

THE no-confidence motion, brought against the government last December, was properly passed as was declared by the Speaker of the National Assembly, Dr. Barton Scotland, the Caribbean Court of Justice (CCJ) said in a landmark ruling on Tuesday.

The government, through the Attorney General, Basil Williams, had argued, and the Court of Appeal concurred, that in order to pass the motion, an absolute majority and not a simple majority of the 65-Member National Assembly was needed. Williams submitted a two-prong approach – half plus one, noting that once a fraction is arrived at, it is rounded up. As such, he submitted and the Court of Appeal agreed that an absolute majority of 65 is 34 but the CCJ rejected that line of reasoning. It ruled that 33 votes constitute a majority in the House, when all members are taken into consideration, as required by the Constitution.

“In determining that majority, the court was of the opinion that the half plus one rule was not applicable. It held that since the Assembly comprised an odd number of persons (i.e. 65), when all the members of the Assembly are present and vote, all that is necessary is to determine whether the motion has garnered “a majority of all the elected members.” Such a majority in the court’s view was clearly at least 33 votes,” President of the CCJ, Justice Adrian Saunders explained as he handed down the ruling in the consolidated appeals.

Those appeals are: Christopher Ram v The Attorney General, the Leader of the Opposition, Joseph Harmon and the Guyana Elections Commission; Bharrat Jagdeo v The Attorney General, the Speaker of the National Assembly, Joseph Harmon and the Guyana Elections Commission; and Charrandass Persaud v Compton Reid, the Speaker of the National Assembly, the Attorney General, Bharrat Jagdeo, Joseph Harmon and the Guyana Elections Commission.

In arriving at its decision, CCJ took note of the fact that when the no-confidence motion was moved by the Leader of the Opposition, Bharrat Jagdeo, on December 21, 2018, all 65 members of the Assembly were present and voted. On that night, the opposition gained an edge over government, when then Member of Parliament, Charrandass Persaud, defected and voted to bring down his own government, thereby allowing the opposition to secure a total of 33 votes.

In addition to the argument on what really constitutes a majority, the Attorney General, with support from Joseph Harmon and Compton Reid – a private citizen, had argued that Article 106(6) did not apply to “motions of no-confidence.” It was submitted that there was a fundamental difference between a motion of confidence and a motion of no-confidence, and as such, only the government, under Article 106 (6) can move motions of confidence. But the CCJ disagreed.

Justice Saunders said court rejected the submissions holding that Article 106 gave effect to the fundamental principle of responsible or accountable government that required the government to resign where it no longer enjoyed the confidence of Parliament.

“Whether Article 106(6) used the term ‘a motion of confidence’ or ‘a motion of no confidence’ was unimportant as these were mere linguistic differences denoting different sides of the same coin. There was nothing in Article 106 that prevented any member of the opposition from moving a motion of no confidence,” Justice Saunders said.

He noted too that Article 106(6) also did not hinge on the provisions of the anti-defection regime set out at Article 156. “That regime was separate and distinct from the concept of responsible government and merely sought to prevent a member of the National Assembly from ‘crossing the floor’ or, having been elected on a particular List, to disassociate himself or herself from the List and continue in parliament as an independent member,” Justice Saunders ruled.

Compton Reid, a farmer from Berbice, through his Attorneys Rex McKay, Neil Boston and Robert Corbin, had argued that Persaud’s presence in the National Assembly was a clear breach of the Constitution on the grounds that he is dual citizen. Describing him as a usurper, Boston argued that Persaud was illegally seated in the National Assembly, and therefore, his vote on the night of December 21, 2018 could not have been valid.

Though historically, disputes over the qualification of members to legislative assemblies were not triable by the courts, Article 163(1) of the Constitution of Guyana has vested in the High Court an exclusive jurisdiction to address this issue but within a particular timeframe as outlined in Article 163 (4).

Justice Saunders said although the Constitution gave the courts the exclusive jurisdiction to determine questions of the qualification of members of the National Assembly, the challenge must be brought within the timeframe required.

“The relevant Act in these circumstances was the National Assembly (Validity of Elections) Act which required that a petition alleging that Mr Persaud was disqualified from running for office, be presented within 28 days after the results of the 2015 election, out of which the matter arose was published in the gazette,” the CCJ President explained.

With the 28-day period having been expired, the CCJ therefore lacked jurisdiction to assess whether Persaud was disqualified at the time of his election. Both the High Court and the Court of Appeal had drawn similar conclusions.

“Having concluded that the court lacked jurisdiction to impeach Mr Persaud’s election, the court found that there was no real need to ascertain whether Article 165(2) preserved the validity of Mr Persaud’s vote on the motion. However, even if the court had jurisdiction to declare Mr Persaud’s election to the Assembly to be void from the outset, the court agreed with the courts below that Article 165(2) would have preserved the validity of his vote,” Justice Saunders said as he presented a summary of the CCJ’s ruling.

It also shot down arguments by the Attorney General and his team of lawyers, that Persaud, having been drawn from the A Partnership for National Unity + Alliance For Change (APNU+AFC) List, and appointed a seat to the National Assembly, was absolutely required to vote against the motion of no-confidence.

The CCJ ruled that nothing in Article 156(3) or anywhere else in the Constitution prohibited Persaud from voting against the government on any particular measure but acknowledged that a decision to vote against one’s list may result in a MP being recalled. It, however, made it clear that the vote would still be valid.

“Having regard to all the findings above, the court held that the National Assembly properly passed a motion of no-confidence in the government on December 21, 2018, and that the provisions of Article 106 (6) and (7) were accordingly triggered,” Justice Saunders said.

In a separate concurring judgment, Justice Jacob said it was obvious from the legislative history of Article 106 (6) that the amendments to the Constitution in 2000, which reintroduced the vote of confidence procedure, sought to bring Guyana back from an authoritarian presidential regime to a more democratic one.

Turning his focus on Persaud’s dual-citizenship, Justice Wit concluded that the constitutional disqualification in Article 155 was not absolute but one of limited scope. “Where there was a late discovery of a member’s dual citizenship and the member refuses to vacate his seat, no legal consequences will ensue unless and until someone properly petitions the High Court in accordance with section 43 of the National Assembly (Validity of Elections) Act to have the court declare his seat vacant,” the judge reasoned.

Justice Winston Anderson, in a concurring judgment, also agreed with the other members of the court that Article 106 (6) and (7) had been triggered. However, he noted that there may be merit in the consideration by those responsible for proposing constitutional amendments of the wording of Article 106 (6) as he was far from sanguine that the Constitution was unambiguous on the issue of motions of ‘no confidence.’

In January, the Chief Justice Roxanne George-Wilshire had upheld the motion on the basis that a majority of all 65 members of the Assembly was 33 votes but on March 22, the Court of Appeal, by a 2-1 margin, overturned that decision. With the CCJ now ruling that the motion was properly carried, it has given the parties in the consolidated cases an opportunity to return on Monday June 24, 2019 and make submissions on how to retreat with the consequences of the decision.

Article 106 (6) and (7), stipulate that Cabinet, including the President, shall resign if the government is defeated on a confidence motion. However, the government shall remain in office, and shall hold an election within three months or an extended period as agreed by two-thirds of National Assembly. Notably, it says the President shall resign after a new President is sworn in.