…says gov’t can’t be defeated by no-confidence motion when Article 70 guarantees it five-year term

THE government could not have been defeated by way of a no-confidence motion when Article 70 guarantees it a five-year term in office, Attorney General (AG) Basil Williams SC, argued as he challenged the validity of Resolution 101 in the High Court on Friday.

For more than four hours, the AG and attorneys-at-Law Maxwell Edwards, Roysdale Forde and Anil Nandlall debated the constitutionality of Resolution 101 when they appeared before the Chief Justice (ag) Roxane George-Wiltshire on Friday in the case The Attorney General v The Speaker and the Leader of the Opposition. The chief justice will hand down her ruling in the matter on Thursday, January 31, 2019.

Resolution 101 is a certification by the Clerk of the National Assembly Sherlock Isaac that the no-confidence motion was validly passed on December 21, 2018 by a majority vote; but the AG and his team of lawyers have asked the High Court to consider whether Resolution 101 is constitutional and effective. Resolution 101 was issued on the basis of Article 106 (6) of the constitution which states that “the Cabinet including the President shall resign if the government is defeated by the vote of a majority of all elected members of the National Assembly.”

Williams, who appeared in association with Maxwell Edwards and Mayo Robertson, submitted to the High Court that Resolution 101 was not lawful. In laying the foundation for his arguments, the AG said it is important to note that resolutions of the National Assembly are ‘Subsidiary Legislation’ as defined by Section 2 of the Interpretation and General Clauses Act, Chapter 2:01. With Resolution 101 being subsidiary legislation, can it lawfully abridge or curtail the five-year government term of office provided for in Article 70 (3)? That is the question that must be determined Williams told the court. But for him, it is a “no, no.”

He argued that Section 20 (1)(b) of the Interpretation and General Clauses Act clearly states that “No subsidiary legislation shall be inconsistent with the provisions of any Act,” in this case Article 70 (3).
That article states that “Parliament unless sooner dissolved shall continue for five years from the date when the Assembly first meets after any dissolution and shall then stand dissolved.” The resolution, the AG argued, is inconsistent with the Act.

“It is respectfully submitted that having regard to the foregoing, this Honourable Court in interpreting article 70(3) in the light of Resolution 101 to determine the legal issue stated, should come to the ineluctable conclusion that the whole beneficent purpose of a motion for a vote of confidence being to curtail a government’s five-year term, Resolution 101, amounts, in both fact and law to an inconsistency in terms of section 20(1)(b) of Cap 2:01 with article 70(3) and is invalid and of no legal effect for breach of that statutory prohibition or restriction. It is an illegality,” the AG submitted to the court.

CONTRAVENTION
He further put to the court that the National Assembly has no legislative capacity to pass a resolution in contravention of Section 20 (1) (b) of the Interpretation and General Clauses Act Chapter 2:01, and as such, Leader of the Opposition Bharrat Jagdeo had no legal capacity to propose the motion. Advancing the arguments put by the AG, Edwards submitted to the court that Articles 106 (6) and (7) that were introduced into the constitution by Act 17 of 2000 are inconsistent with the intentions of the framers of the constitution with regard to the five-year security of tenure which they conferred upon an elected government by Article 70 (3).

Edwards cited the case of Hinds V The Queen (1976) in which the legislation was declared in part unconstitutional for being in conflict and repugnant to entrenched provisions in the Jamaican Westminster Model Constitution. He argued that the case in point provides useful analogy as to how the principle of entrenchment applies to render Section 5 of the Constitution (Amendment) Act, 2000 (No 17/2000) inconsistent with Article 70(3).

He submitted that the Parliament, by reintroducing into the constitution the machinery of a no-confidence motion, abridged guaranteed rights provided under Article 70.
The chief justice, while interjecting, questioned Edwards on the method used to pass Constitution (Amendment) Act, 2000 (No 17/2000) in the National Assembly. In response, he stated it was passed by a two-thirds majority “because of coincidence of bipartisanship between the political parties.”

However, the chief justice put to Edwards that the Constitution (Amendment) Act, 2000 (No 17/2000), which includes Article 106 (6), meant the requirement on the basis that it passed a two-thirds majority and as such it is within the constitution. She elaborated that Article 106 (6) provides that if there is a no-confidence motion, the Cabinet, including the President, shall resign.
But Edwards while holding fast to his position, maintained that Constitution (Amendment) Act, 2000 (No 17/2000) was passed “by coincidence and doesn’t change the law,” in this case, Article 70.

“The Parliament in 2000, whether we like it or not,…in 2000 two-thirds of the representatives of the people of Guyana changed the constitution and inserted 106,” the chief justice stated.
Nandlall, who appeared on behalf of the respondent Bharrat Jagdeo, argued that Williams and Edwards’ arguments are flawed. He submitted that to use the Interpretation and General Clauses Act to treat the Resolution as a subsidiary legislation is a misuse of the legislation.

Arguing that Resolution 101 is applicable, Nandlall put to the court that it does not stand on its own. He explained that Resolution 101 was certified on the basis of Article 106 (6) of the Constitution which provides for a no-confidence motion to be passed against a government.

In addition to ruling on this matter on Thursday, the chief justice will rule in the case Christopher Ram v The Attorney General and Leader of the Opposition. Ram has asked the court to rule that the no-confidence motion was validly passed, but the Attorney General has argued that it was invalid on the grounds that an absolute majority (34) in the 65-Member National Assembly was not acquired on the night of the vote.

On the same day, she is also hoping to rule on case Compton Reid v The Speaker, Charrandass Persaud and the Attorney General, in which the applicant has challenged the validity of the vote cast by Persaud on the basis that he breached the constitution by having dual citizenship while being a member of the National Assembly.