…SC Boston argues he was duty-bound to vote for list from which his name was extracted

BY his own actions, Charrandass Persaud’s vote was invalidated in the National Assembly and as such, the No-Confidence Motion could not have been validly carried, Senior Counsel Neil Boston told the court when he appeared before Chief Justice (ag) Roxane George-Wiltshire on Thursday.

He said not only did Persaud breached the Constitution of Guyana by sitting in the National Assembly while being a citizen of Canada, but ceased to be a member of that august body the moment he crossed the floor and voted to bring down his own government.

A Canadian citizen
Boston, who appeared in association with Senior Counsel Rex McKay and Attorneys-at-Law Stanley Moore and Robert Corbin, is representing the interest of the applicant in the case Compton Reid v The Speaker of the National Assembly, Charrandass Persaud and the Attorney General.

In his almost two hours presentation, Boston said based on evidence already supplied to the High Court, Persaud, who sat on the governing side of the House before he was recalled, became a citizen of Canada in 1998, and since then to now, renewed his Canadian passport thrice as well as his Guyanese passport. On April 2, 2015, Persaud, Boston pointed out, swore that he was aware of the provisions of Article 53 and 155 of the Constitution with respect to the qualifications and disqualifications for election as a member of the National Assembly when he signed a ‘statutory declaration form.’

With Article 155 (1) (a) of the Constitution stating that “No person shall be qualified for election as a member of the National Assembly who–(a) is, by virtue of his or her own act, under any acknowledgment of allegiance, obedience or adherence to a foreign power or state,” Boston argued that undoubtedly Persaud breached the Constitution.

He said it is on this basis that Persaud was disqualified for election to the National Assembly, and as such, his vote in the House could not have been legitimate on the night of December 21, 2018, when the Opposition-sponsored No-Confidence Motion was put to a vote.
Boston put to the Court that the Speaker of the National Assembly, Dr. Barton Scotland, acted in contravention of the Constitution when he accepted the vote cast by Persaud. But the Chief Justice interjected, and said according to the very arguments put by Boston, it was not public knowledge that Persaud had dual citizenship, and as such, the Speaker could not have known.

In restructuring his statement, the Senior Counsel put to the Court that the “acceptance of the vote amounted to a breach of the Constitution.”
Questioned by the Chief Justice whether the validity of the votes cast by Persaud over his more than three years in the National Assembly should be nullified, Boston, in response, said that the issue at hand is the No-Confidence Motion. He maintained his position, although the question was repeatedly put to him.

Crossing the floor
To further compound the situation, Boston contended that Persaud also breached the Constitution when he crossed the floor without following the required procedures contained in Article 156 (3) of the Constitution.

According to that article, a Member of Parliament shall cease to be a member if he or she declares in writing to the Speaker or the Representative of the List from which his or her name was extracted, in this case, the A Partnership for National Unity + Alliance for Change (APNU+AFC) List of Candidates. Such was not done by Persaud. While Persaud has since indicated that his vote was one of conscience, Boston argued that there is no such thing as ‘conscience vote’ when voting on a ‘confidence motion.’ “You are duty bound to vote for the list from which your name was extracted,” Boston told the Court.

The Senior Counsel put to the Court that by crossing the floor, Persaud was supporting a list from which he was not extracted. “It couldn’t be, the framers of this constitution, that you don’t face the electorate, your name is placed on a party list, and that party extracts your name, and you surreptitiously vote for a list from which your name was not extracted,” he said.

Once Persaud voted “yes” to topple his government, his seat automatically became vacant, and he ceased to be a member of the National Assembly, Boston further submitted to the Court. He said the vote cast by Persaud was therefore invalid and should not have been counted.

Validly elected
But Attorney Sanjeev Datadin, who is representing the interest of Persaud, argued that, contrary to the arguments put by Boston, his client was validly elected to the Parliament of Guyana in May 2015. “He was validly elected. He remained validly elected a Member of the National Assembly until the 3rd January 2019,” Datadin said. Persaud was recalled from the National Assembly on January 3.

The Attorney said to argue the contrary would bring into question the validity of the previous votes cast by Persaud to aid in the passage of bills and budgets put before the House. Datadin submitted to the Court that if a Member of Parliament fails to adhere to the laws of the country, the constitution provides a remedy, which is laid out in Article 58 (1).
That Article 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 fifty dollars for each day upon which he or she so sits and votes.”

He said beyond the remedy provided in Article 58 (1), the Constitution provides no other remedy. “All you can do is fine him $50 dollars a day. The Attorney General needs to bring those proceedings if he so wishes,” Datadin told the Court. In arguing that the vote cast by Persaud should not be invalidated, Datadin turned the court’s attention to Article 165 (2) of the Constitution, which states that the presence or participation of any person not entitled to participate in the proceedings of the Assembly shall not be invalidated.

In regards to the issue of crossing the floor, the attorney put to the Court that his client never declared any allegiance to another list. He said declaration, according to the Constitution, requires one in writing. Datadin was backed by Attorney-at-Law Anil Nandlall, who appeared on behalf of Opposition Leader Bharrat Jagdeo.

Weighing in on the matter, Mayo Robertson, who is representing Attorney General Basil Williams, in association with Maxwell Edwards, told the Court that Article 58 (1) does not create a case of “exclusivity.” He said the institution of penalty does not mean that there are no other consequences.

“Just because Article 58 (1) says you pay a 50-dollar daily fine, it doesn’t mean there are no other consequences. The framers could not have possibly intended that somebody could sneak into Parliament with no legal basis and just keep on voting, keep on voting, keep on voting, and at the end of 365 days, pay a sum of $1,800. No,” Robertson reasoned.
While the Constitution states that a written declaration should be submitted to the Speaker and the Leader of the List by a Member of Parliament, Robertson said what could be clearer than a MP voting against his own government.

Attorney Roysdale Forde, who appeared on behalf of General Secretary of the APNU, Joseph Harmon, who was added to a party in the matter, argued too that Persaud’s vote was illegitimate and must be rejected. “That vote made what could otherwise be a failed motion under the constitution into a successful motion,” he said while noting that such was achieved by a person who was not authorised to be in the National Assembly.

Reid, through his attorneys, is asking the court to set aside the order of the Speaker that the No-Confidence Motion, Resolution No. 101 was passed, and staying the enforcement of Resolution No. 101 declared by the Clerk of the National Assembly. He also wants the court to declare that Persaud was not qualified for election as a member of the National Assembly by virtue of his own act, and that his vote in favour of the vote of No-Confidence was null, void and of no legal effect.