…but confirms he is a dual citizen

IN a landmark decision, Chief Justice Roxane George-Wiltshire ruled that the vote cast by Charrandass Persaud in the National Assembly on December 21, 2018 was valid, even as she confirmed that he sat in the National Assembly while being dual citizen – something which is unconstitutional.

“While agreed that continued illegality should not be permitted in whatever was done, a vote of an unqualified MP cannot and would not nullify that which has occurred in the past where the proceedings were lawful,” the chief justice said in the High Court on Thursday.
At the time, Justice George-Wiltshire was handing down her ruling in the case Compton Reid v The Speaker, Charrandass Persaud and the Attorney General, in which the New Amsterdam farmer sought a total of seven declarations and two orders, intended to set aside the decision of the Speaker of the National Assembly, Dr. Barton Scotland, that the no-confidence motion was carried.

Reid, through his Attorneys Rex McKay, S.C; Neil Boston, S.C, and Robert Corbin, had argued that the passage of the motion could not have been valid on the grounds that Persaud’s presence in the National Assembly at the time was illegal. However, Persaud, through his lead Attorney, Sanjeev Datadin, approached the court to strike out Reid’s application on the grounds that the High Court had no jurisdiction to hear the claim, and that the challenge should have been brought by an elections petition.

In delivering her more than one-hour-long decision in the first of the three constitutional cases on the validity of the no-confidence motion, the chief justice ruled that she had jurisdiction to treat with the first of the seven declarations sought by Reid. Reid had asked the court to declare that Persaud is not qualified for election as a member of the National Assembly by virtue of his own act and acknowledgement of allegiance, obedience and adherence to a foreign power – Canada – in Contravention of Article 155 (1) (a) of the Constitution of Guyana.

Justice George-Wiltshire said the declaration did not seek to nullify his election but spoke to his current status and whether Persaud can be qualified for election as an MP in the future. The chief justice also ruled that she had jurisdiction to address the second declaration sought, in which Reid called on the court to declare that Persaud on April 7, 2016 was disqualified from being nominated as a member of the National Assembly.

But the chief justice said she had no jurisdiction to rule on the third declaration in which by Reid was seeking to nullify Persaud’s nomination as a candidate for the A Partnership for National Unity + Alliance For Change (APNU+AFC). “This prayer…has as its objective the reversal of the result of his election. As result, I have concluded that to seek to nullify his nomination would amount to and does amount to a collateral attack on his election as a MP. To challenge his election would have necessitated compliance with the specialised procedure…that is by petition within 28 days of the official declaration of results,” she explained.

While stating that Declaration Four “need not be granted,” the chief justice said that the fifth declaration sought also amount to an attack on Persaud’s eligibility. “To make such a determination, Reid would have had to file an election petition,” she posited, while stating that the court had no jurisdiction to grant the declaration. In like manner, the chief justice said that Declarations Six and Seven, which sought to nullify the vote cast by Persaud on December 21, 2018, should have been sought by way of an election petition.

While she did not declare that Persaud’s presence in the National Assembly was illegal and amounted to a breach of the Constitution, the chief justice offered to address the issue of a Member of Parliament holding dual citizenship due to its national importance.
Stating that the Constitution is very clear, the chief justice referenced to Article 155 which states that “(1) 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 acknowledgement of allegiance, obedience or adherence to a foreign power or state.”

It was noted that based on the evidence provided by Reid’s attorneys, it is undeniable that Persaud holds both a Guyanese and Canadian passport, both of which were repeatedly renewed. The chief justice noted too that based on the evidence provided under the Canadian Citizenship Act, an applicant for citizenship of Canada is obliged to swear an oath of allegiance to Her Majesty the Queen. Attributing to the classic case on treason – Joyce v the DPP, in which Joyce was an American citizen resident in a British territory, the chief justice conceded that having a passport has far reaching implications.

“A person who holds a passport is under acknowledgement of allegiance and by renewing the passport, he is by his own act renewing that allegiance to the state which issued that passport to him,” she stated.

It was noted that the issue of dual citizenship continues to draw attention throughout the Commonwealth. In the case of Guyana, the chief justice said the language of Articles 53 and 55 of the Constitution of Guyana is simple and does not require complicated legal gymnastics for their interpretation.

“These provisions seek to preserve for membership of the National Assembly, persons who only hold Guyanese citizenship and who would not have voluntarily taken an oath of allegiance to another country.

While this may say that this does not permit the fullest participation of diaspora Guyanese in the political leadership of Guyana, this is not for this court to pronounce on,” the chief justice said. She made it clear that until and unless they are amended, the constitutional provisions must be adhered to.

“Any change to reflect a different view may be undertaken by constitutional amendment if the public and their parliamentary representatives are so inclined,” she added.

CANNOT BE AN MP
As such, she said anyone who holds dual citizenship should not and cannot be a Member of Parliament. On this basis, she said Persaud is not qualified for election to the Parliament. She also declared that Persaud was disqualified for membership of the National Assembly.

CROSSING THE FLOOR
In providing guidance for the future on the issue of crossing the floor and voting against one’s list, the chief justice, while alluding to Article 153 (3) said, a MP who switches just as a vote is about to be taken does not cease to be a member; shooting down the arguments put by Boston and McKay.

“It may be wrong, some may even say immoral, it may be disloyal and a violation of the spirit and intent of the Constitution for such an MP not to have communicated his change in heart as provided for in Article 156 (3), but they would not have ceased to be an MP at the time of the vote,” she stated.

Additionally, she said Article 58 (1) outlines a penalty for a person who remains an MP while unqualified. 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.”

However, she made it clear that the article did not state that a vote by an unqualified person amounts to a nullity. In fact, she pointed to Article 165 (2) which safeguards the proceedings. A part of that article states that “…the presence or participation of any person not entitled to be present at or to participate in the proceedings of the Assembly shall not invalidate those proceedings.”

Shooting down the arguments put by Boston, the Attorney General Basil Williams and his associates Maxwell Edwards and Mayo Roberts, that Persaud was a “usurper” on the night of December 21, 2018, the chief justice said one should not disregard his other actions in Parliament.

“There is no evidence that the second respondent knew that he was not qualified to be elected, more so, that there have been submissions that not only he had dual citizenship while sitting as an elected MP,” she posited.

Chief Justice George-Wiltshire said there should not be any cherry-picking when treating with the Constitution. “In my view, one would not be able to choose an issue such as for example: a no-confidence motion, to saying that a vote on that issue that one was displeased with, becomes a nullity because of the serious consequences for the government of the day, while matters including national budgets in which an unqualified member voted would remain intact,” she stated.

In concluding the case, the chief justice said if it could have been found that Persaud was disqualified to be elected, his vote could not have been nullified.