…upholds no-confidence motion against Gov’t
…says Cabinet should resign while Government remains in Office

CHIEF Justice Roxane George-Wiltshire on Thursday ruled that the No-Confidence Motion was validly passed in the National Assembly as declared by the Speaker, Dr. Barton Scotland, on the grounds that the Opposition acquired an absolute majority. As such, in an inter-related matter, she ruled that Cabinet should have resigned on December 21, 2018, with immediate effect while the government remains in Office pending elections.

In a case brought against the Speaker and the Leader of the Opposition, Attorney General Basil Williams had challenged the validity of the resolution by Parliament saying that the motion was carried. Williams argued that though the opposition secured the support of renegaded MP Charrandass Persaud-a then Government Parliamentarian– it did not secure an absolute majority when the motion was put to a vote on December 21, 2018. According to Williams, who appeared in association with attorneys Maxwell Edwards, Mayo Robertson and Robert Corbin, 34 votes or more were needed for the motion to be validly carried. His arguments were based on Article 106 (6) which provides for the resignation of Cabinet upon its defeat by the vote of a majority of all the elected members of the National Assembly on a vote of confidence.

However, on Thursday the Chief Justice ruled that 33 votes in the 65-Member National Assembly amount to an absolute majority.

In explaining the reason behind her decision, Chief Justice George-Wiltshire said the High Court considered what constitutes a majority of all elected members of the National Assembly, and the majority of members present and voting. She noted that this was the approach used in the case Kilman v Speaker of Parliament of Vanuatu (2011).

Vanuatu Constitution provides for the Parliament to pass a motion of no- confidence in the Prime Minister but only if supported by an absolute majority of the Members of Parliament. That Parliament has 52 members, however, in the case in point, only 51 voted, and the Speaker had ruled that the motion was carried 26:25 vote. While the Speaker’s ruling was upheld at the level of the Supreme Court, the Appellate Court ruled that the Speaker’s ruling was in contradiction of the Constitution.

However, Chief Justice George-Wiltshire said that the Court of Appeal did not rule out the interpretation that half plus one equals to an absolute majority.
“The court of appeal overruled the decision of the Chief Justice but did not reject as incorrect the interpretation of absolute majority, which the Chief Justice also said could only be determined by reference to the number representing all members of Parliament. “It must be recognised that while the interpretation of absolute majority given there is at least half plus one, in this case, 27 of the 52 members, this is said to be consistent with the interpretation of absolute majority,” the Chief Justice explained.

She noted that the situation of odd number is not unique to Guyana; however, not many examples were placed before the court by the Attorney General – the applicant in the matter. In the Kenyan Parliament (1998), the Chief Justice pointed out that while the formula half plus one was used, no explanation was given by the Speaker for utilising the formula.

“It must be noted that in the No-Confidence Motion moved in our National Assembly, the Speaker found that the motion had been carried by a majority of 33 to 32. It must be noted that, as the applicant admitted, no one in the National Assembly at the time, none of the elected members or anyone else indicated to the Speaker that the vote could not be carried by a majority of 33/32 and when this challenge was raised, the Speaker declined to reverse the vote,” the Chief Justice said. The Speaker, who is represented by Senior Counsel Rafiq Khan, referred the matter to the Court for determination.
On that basis, she said “In my view it would be inconceivable this court would accept what was said by the Speaker in the Parliament of another jurisdiction over 20 years ago without any identifiable authority indicated to overturn a ruling made by the Speaker of our National Assembly, and the validity of which was not doubted at the time…”
She ruled that in acquiring a majority, one side must acquire one more than the other side. The Chief Justice, however, made it clear that in the case of an absolute majority as specified by the Constitution, is a majority of all Members of Parliament present, regardless if there are present or not. According to her, it would be a fallacy to state that an absolute majority could also be a simple majority of Members of Parliament present and voting.
“The Court of Appeal in Kilman…explicitly states that 27 is both an absolute majority and a simple majority of 52, since if all members are present and voting, an absolute majority is equal to a simple majority,” she pointed out.

However, it was acknowledged that it is more difficult to acquire an absolute majority. Using Vanuatu as an example, it was pointed out that in an absolute majority provision at least 27 votes would be required for a motion to be successfully passed while in a simple majority, a very small number may suffice once a quorum is reached.
“In our 65-Member National Assembly, therefore, a majority of all elected member of the National Assembly in accordance with the principle of one over all rivals combined, is 33 members. This is so since the maximum number of potential opposers could only be 32.
“A majority of those present and voting may vary if 45 members are present and voting, a majority of those members present and voting is 23…if all 65 Members are present and voting, a majority of those members present and voting is 33,” the Chief Justice explained.
In case of an absolute majority where all members are taken into consideration, the majority will be 33. “At least 33 votes must always be obtained to meet that requirement. If 55 members are present, a majority of all elected members of the National Assembly would still be 33. If only 45 are present, a majority of all elected members of the National Assembly would still be 33, and even if only 33 members are present, a majority of all elected members of the National Assembly would still be 33,” Chief Justice George-Wiltshire further explained.

The Attorney General, in presenting the case, had argued 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.

Williams had contended that Resolution 101, which validates the passage of the no-confidence motion, was lawful because resolutions of the National Assembly are ‘Subsidiary Legislation’ and cannot lawfully abridge or curtail the five-year government. But the Chief Justice ruled that his arguments were inconsistent.

Stay of judgement
Upon hearing the ruling, the Attorney General applied for a stay of the judgment by the Chief Justice as well as a conservatory order for the government to remain in office until the appeals are heard. But these were not granted by the Chief Justice, who posited that the order should be sought at the level of the Court of Appeal.

Meanwhile, in the case Christopher Ram v The Attorney General and Leader of the Opposition, the Speaker ruled that Cabinet, which is a subset of government, should have resigned with immediate effect upon the passage of the no-confidence motion while government remains in office until the President takes the oath of office following an election. That election, according to Article 106 (7) shall be held within 90 days of the defeat of a government or such longer period as the National Assembly by resolution supported by not less than two-thirds of the votes of all elected members.

Contrary to the arguments put by the Attorney General that to have a government without a Cabinet would be a recipe for chaos, the Chief Justice, in delivering the third ruling for the day on the matter of the no-confidence motion, said there will be no resulting chaos.
It must be noted that while the Cabinet, including the President, is required to resign, the President remains the President of Guyana and the ministers remain Ministers of Government and will continue to function in those capacities. According to the Constitution, they are required to resign after the President takes the oath of office following the election.

Pic save as parliament
The Full House during the debate of the no-confidence motion (Adrian Narine photo)