Dear Editor,
YESTERDAY you published an interesting letter from one Richard Richie under the caption, “CHARANDAS VOTE SHOULD FOLLOW HIM”.

The writer questioned the legality and validity of the vote, and expressed belief that Parliament has the power to nullify a vote that “compromised the integrity of parliament”.
He stated that the impugned MP could not have exercised a conscience vote. His was a well-executed plan. Before the vote he planned his exit route, and enlisted the overt support of political, security and diplomatic accomplices. “The motivation clearly was not conscience, as he could have resigned in protest from his party and the government before the vote, or abstained from voting if his `Whip’ had given him that option,” the letter writer added.

I am familiar with persuasive legal authority on the subject of the integrity of the House, and ironically Canada, stands out. In Harvey v. New Brunswick (Attorney General) 1996 2

SCR 876 (Canada Supreme Court) McLachlin J, as she then was, stated:
“If democracies are to survive, they must insist upon the integrity of those who seek and hold public office. They cannot tolerate corrupt practices within the legislature. Nor can they tolerate electoral fraud. If they do, two consequences are apt to result. First, the functioning of the legislature may be impaired. Second, public confidence in the legislature and the government may be undermined. No democracy can afford either.”

The legal test for the Assembly to act in order to discharge its function and protect its integrity is necessity. In New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 SCR 319, 1993 Can LII 153 (SCC), the Supreme Court said:
“The privileges attaching to colonial legislatures arose from common law. Modelled on the British Parliament, they were deemed to possess such powers and authority as are necessarily incidental to their proper functioning. These privileges were governed by the principle of necessity rather than by historical incident, and thus may not exactly replicate the powers and privileges found in the United Kingdom.”

In Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament (21st ed. 1989), privilege is described in the following manner (at pp. 69 and 82): “Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law… The privileges of Parliament are rights absolutely necessary for the due execution of its powers.”

In our opinion, the case can be made that the support by Charrandass for the opposition’s no confidence motion, in the circumstances in which it was done, brings the dignity and repute of the Assembly into serious question. There is a need not only to sanction his behaviour and nullify his vote, but more pressing is a need to deter others from so acting in the future. Such conduct has the inherent possibility of encouraging outsiders to buy or influence vote.

The Assembly must ensure that an MP votes consistent with Guyana’s constitutional and democratic framework. Any departure from such a framework must be sanctioned. The penalty must be proportionate to the impact of the vote. Hence, where the vote topples a duly elected government, strict adherence to the constitutional and democratic principles is required and non-compliance should result in the recall of the vote.

Article 160 (1) (a) of the Guyana Constitution states, that votes are cast in favour of a list of candidates. This is important because the citizens are not offered a candidate per se but rather a party list. It is the name of the political party which appears on the ballot and the citizens are presented with a menu of measures by a party and not by an individual member. In consideration for being placed on the list, a member gives a solemn covenant that it will support the list and its agenda and he so covenants with the voting public at large. South Africa provides an anti-defection law, not dissimilar from Guyana’s recall legislation. In the case of the United Democratic Party vs President of South Africa, the court was presented with the argument that it was undemocratic to restrain an individual member from taking a decision contrary to the will of the party.

The Constitutional Court rejected that submission, holding:
“Under a list system of proportional representation (PR), it is parties that the electorate votes for, and parties which must be accountable to the electorate. A party which abandons its manifesto in a way not accepted by the electorate would probably lose at the next election. In such a system an anti-defection clause is not inappropriate to ensure that the will of the electorate is honoured.”

By virtue of Article 160 (1) (a) of the Guyana Constitution and the interpretation of such a similar underlying principle in South Africa (above), the argument can be made that Charrandass, like every other member of the Assembly, does not enjoy a full freedom to take a decision in the Assembly contrary to the will of his or her party.

A member is constrained and duty bound to uphold the covenant which the party made with the electorate, and which he as a member made with the party. The entire system is built on this fundamental principle. Any action taken in breach of this principle weakens parliamentary democracy and undermines constitutionally enshrined values.

It necessarily follows that the Assembly is entitled to take actions when faced with behaviour which undermines its integrity and democratic and constitutional values, if not “democracies will not survive” (Supreme Court of Canada in Harvey). Mr. Charrandass acted in a deceitful and fraudulent manner to his party, the Assembly and the country as a whole when he voted in support of the no confidence motion. He cannot genuinely claim that it was a conscience vote. He had only recently voted whole-heartedly in support of the Government’s policies and programme in the national budget. He spoke publicly in the Assembly and on national television in support of the 2019 Budget.

There was nothing which transpired between the short time in which he supported the budget, which is a confidence vote by itself, and the no confidence motion which would justify his behaviour. His actions raise genuine concerns as to whether he was compromised. Independent of the criminal law, his actions undermines the spirit and intention of the Guyana Constitution.

The assembly has the solemn jurisdiction to invoke its privilege on the basis of necessity, to examine the bona fides of the member’s parliamentary conduct. It is self-defeating and makes absolutely no sense that the member can be expelled but his vote remains on such a vital and decisive issue. I concur with Richard Richie: His vote must follow him.
Regards,
Preetam Radhakrishna
Attorney