…insist lawyers challenging validity of Charrandass’ ‘yes vote’

LAWYERS representing Berbice farmer Compton Reid have insisted that the High Court and the Court of Appeal have exclusive jurisdiction to determine membership of the National Assembly, dismissing arguments put forward by attorneys for recalled MP Charrandass Persaud who has been found to have dual citizenship following his vote with the opposition to topple the coalition government.

Senior Counsel Rex Mckay, Neil Boston and attorney Robert Corbin submitted that Article 163 of the constitution gives the High Court and the Court of Appeal ‘exclusive jurisdiction’ to adjudicate and determine matters such as the one brought by Reid.

Reid, a New Amsterdam farmer, is challenging the validity of the vote cast by Persaud in the National Assembly on the basis that he breached Article 155 of the constitution which bars Members of Parliament from having dual citizenship. Persaud is a citizen of Canada. Reid’s lawyers have handed over several pieces of critical documents to prove that Persaud held valid Canadian passports from the year 1998 to the present date.

Speaker of the NATIONAL Assembly Dr Barton Scotland and Attorney General, Basil Williams have also been named as respondents in the matter, which was first called on Tuesday before Chief Justice (ag) Roxane George-Wiltshire. “Article 163 of the constitution gives the High Court and the Court of Appeal, “exclusive jurisdiction” to adjudicate and determine the maters listed in the said Article (1) (a), (b) (i) (ii) and (iv), (c) and (d). The National Assembly (Validity of Elections) Act Chapter, 1:04 is constitutionally grounded in the said Article 163 (4), which provides for Parliament to make provisions to facilitate the proper discharge by the High Court and the Court of Appeal of their constitutional mandate of “exclusive jurisdiction,” Reid’s lawyers led by McKay, S.C said in their opening arguments on jurisdiction.

Persaud, through his lead attorney Sanjeev Datadin and associates, is contending that the court has no jurisdiction to grant several declarations being sought by Reid, because all challenges to the election and appointment of members of parliament must be by the provisions of the National Assembly (Validity of Elections) Act Chapter 1:04) which must be brought within 28 days by an Election Petition.

Datadin and associates are also arguing that there can be no challenge to the vote of Persaud in the National Assembly because Article 165 (2) preserves the “validity of the vote,” despite any supposed defect of any of the participants of the vote.
But Reid’s lawyers rubbished the claims put by Persaud’s attorney, stating that such an argument suggests that once 28 days had elapsed after an election there is no remedy for any flagrant breach of the constitution.

“The second proposition would also lead to the conclusion that unconstitutional acts by the National Assembly of the Parliament would be valid, even if there are breaches of the provisions of the constitution by the said National Assembly,” Reid’s attorneys argued.
They submitted to the court that it was not the intention of the framers that the constitution would authorise, condone and preserve any breaches of its own provisions and provide remedy.

McKay and associates, in supporting the arguments, pointed out that Article 163 (1) provides that the High Court shall have exclusive jurisdiction to determine several questions, including: qualification of any person to be elected to the National Assembly; whether, inter alia, an election has been lawfully conducted or whether seats lawfully allocated or have become vacant.

But in their submissions, Datadin and associates maintained that the court has no jurisdiction to enquire into the internal proceedings in Parliament, unless where express provision is made for such intervention.

“In the instant case, Parliament has expressly set out a separate and special procedure for challenging the qualification a member of the National Assembly. The procedure is grounded in Article 163 of the Constitution of Guyana and provided for in the National Assembly (Validity of Elections) Act that is made under Article 163 of the constitution. The procedure provided is for there to be an elections petition and that petition has to be filed within 28 days,” Persaud’s lawyers maintained. They cited the case of Sir Vincent Floissac in Russel v AG (1995) in which the court said “it is essentially a parliamentary jurisdiction conveniently assigned to the judiciary by the constitution and by the legislation.”

DECLARATIONS
In response to requests by Reid for the court to issue several declarations confirming Persaud’s Canadian Citizenship and invalidating his December 21 vote, Datadin and associates said it is established that the court should not grant declaratory orders in relation to the conduct of matters in parliament. The case of Bradlaugh v Gossett and R v Office of the Prime Minister (2008) were cited as examples.

Leader of the Opposition Bharrat Jagdeo, who was recently added as a party to the case, called on the court to strike out Reid’s application. Jagdeo is represented by Attorney Anil Nandlall and team. According to Jagdeo, Reid’s application does not disclose any reasonable ground for bringing the claim; it is an abuse of the process of the court, it is scandalous, frivolous and vexatious and the proceedings fly in the face of the constitution.
“It cannot be disputed that the second-named respondent was elected to sit in the National Assembly pursuant to elections held under Articles 60 and 160 of the constitution as referred to by Article 163 (5) of the constitution. It is submitted that Parliament has indeed made provisions to which Article 163 (4) of the constitution makes reference. That provision manifests itself in the form of the National Assembly (Validity of Elections) Act and National Assembly (Validity) of Elections Rules.

“It is further submitted that this honourable court’s jurisdiction to determine any question regarding the qualification of any member of the National Assembly can only be done in the manner prescribed by Article 163 of the constitution, that is to say, in accordance with the National Assembly (Validity of Elections) Act and the accompanying rules,” Nandlall argued on behalf of his client.

But the attorney general, though being a respondent in the matter, endorsed the positions outlined by Reid and his lawyers. “We are completely in agreement with and adopt the arguments advanced by Counsel for the Applicant Compton Herbert Reid with regard to Mr. Charrandass Persaud’s eligibility to vote on Resolution 101,” the Attorney General Basil Williams stated in his submissions on Friday. He, like Senior Counsel McKay and associates, is arguing that the court has jurisdiction to hear the case.

“This is not an election Petition as contemplated by Section Three of the National Assembly Validation of Elections Act Chapter 1:04. As such, it is not hinged to the time stringencies of Section Five of that Act,” the Attorney General explained through his attorney Maxwell Edwards.

On the basis that Persaud, while a Member of Parliament held dual citizenship status, Williams put to the court that resolution 101 cannot survive the unlawful vote of the Canadian Citizen.

“According to the Speaker’s certification, resolution 101 was passed by a one- vote margin. It is obvious therefore that when Mr. Persaud’s unlawful vote is removed from the tally, the motion could not pass,” Edwards put to the court.

He added: “The framers of the constitution took the issue of unlawful voting seriously. I believe it is the only issue where the framers have included a specific penalty for noncompliance.”

Article 58 (1) states: “Any person who sits or votes in the National Assembly, knowing or having reasonable ground for knowing that he or she is not entitled to do so, shall be liable to a penalty of $50.00 dollars for each day upon which he or she sits or votes.”