…Court of Appeal to set date for ruling soon

IN what could be considered a battle of words, Grenadian Queen’s Counsel, Dr Francis Alexis, and Attorney-at-Law, Anil Nandlall, ‘clashed’ over the definition and interpretation of the word ‘majority’ in their closing arguments in the Court of Appeal on Thursday.

In the coming days, the Appellate Court will determine whether the Parliamentary Opposition – the People’s Progressive Party/C (PPP/C) had acquired a majority as determined by the Constitution for the passage of a no-confidence motion to allow for the defeat of the government. In the High Court on January 31, 2019, Chief Justice Roxane George-Wiltshire upheld the declaration made by the Speaker of the National Assembly, Dr Barton Scotland, that the A Partnership for National Unity + Alliance For Change (APNU+AFC) government was defeated by a majority in the National Assembly.

The government has filed two appeal cases – Attorney General v Christopher Ram and others, and Attorney General v The Speaker of the National Assembly and others – challenging the High Court’s ruling, which also indicated that the government ought to have resigned immediately after the passage of the no-confidence motion. The government is maintaining that the opposition needed 34 or more votes to effect a defeat and not a mere 32, as was the case on the night of December 21, 2018.

As arguments continued on Thursday before Chancellor of the Judiciary, Yonette Cummings-Edwards, and Justices of Appeal, Dawn Gregory and Rishi Persaud, Nandlall, the legal representative of the Opposition Leader Bharrat Jagdeo (the mover of the motion), urged the court to uphold the decision of the chief justice on the grounds that a majority was obtained. He told the Appellate Court that the word ‘majority’ is not defined in the Constitution, and in the case of Article 106 (6) , which laid out the requirements for the defeat of a government, the word ‘majority’ is not preceded by a prefix. As such he argued that there is no such thing as a “simple majority” or “an absolute majority” as suggested by the Attorney General, Basil Williams and his battery of lawyers, representing the interest of government.

Interjecting early in his presentation, the Chancellor, Justice Cummings-Edwards said the records from the High Court suggest that all parties in the court proceedings had agreed that an absolute majority was needed for the passage of the motion. But according to Nandlall, he has always maintained that a majority was the simple requirement. “If we want to attach a prefix, we do so at our own peril and it does not change what the requirement eventually boils down to,” Nandlall told the court.

In the absence of a definition in the Constitution, he turned to the dictionary for the definition of majority. Citing a number of dictionaries including Blacks’ Law Dictionary and the Shorter Oxford English Dictionary, Nandlall concluded that a majority is more than half or the greater number.

“On a vote of 65 elected members, there can be no doubt that 33 votes are greater than 32. On a vote of 65 elected members, there can be no doubt that 33 votes are more than 32 votes…On a vote of 65 elected members, there can be no doubt that 33 votes are more than 50 per cent of the total votes,” he submitted while noting that there is no ambiguity.
Nandlall urged the court not to fall into error by inserting “simple” and “absolute” into the Constitution. According to him, the Constitution does provide for any special requirement.

“If the framers of the Constitution wanted this procedure to be clothed with any form of additional constitutional treatment, then your honours they would have done so. The judiciary as the institution charged with the interpretation of the Constitution must not fall into error and attempt to rewrite a Constitution that is not there,” he told the court. He called on the Grenadian Queen’s Counsel to point to an iota of evidence that would suggest that a no-confidence motion in the context of Guyana’s Constitution requires an exceptional treatment.

The Queen’s Counsel, Dr Alexis, who appeared in association with the attorney general, and Attorney-at-Law Maxwell Edwards, cited a number of cases to support government’s position that the no-confidence motion could not have been validly passed because its passage was not in accordance with the special requirements laid out in Article 106 (6). That article provides for a defeat of the government by the vote of a majority of all elected members of the National Assembly on a vote of confidence.

Dr Alexis argued that unlike Article 168, which allows for a simple majority – a majority of the votes of the members present and voting, Article 106 (6) sets out a special requirement – a majority of all elected members. He emphasised that such, provides for a higher requirement by way of an absolute majority.
Referencing to the Constitution again, the Queen’s Counsel turned the court’s attention to Article 66 that made reference to a special procedure, noting that the framers themselves used the expression.

In the case of Article 106 (6), he said the framers of the Constitution specifically stated that a vote of the majority of all elected members of the National Assembly was required – a special requirement.
“That’s why in the case of the Attorney General v Cedric Richardson, the President of the Caribbean Court of Justice, the highest court of this land, made the point…that the requirement of a majority of all the elected member is an absolute majority and the honourable chief justice accepted that, that is a proper equivalent,” Dr Alexis told the court.

He then submitted to the court that in order to arrive at absolute majority in a National Assembly with an uneven number of elected members, the half plus one formula must be utilised, which in this case, calls for the rounding up of the fraction.
“Rounding up is always necessary to arrive at a majority in odd number assemblies,” Dr Alexis told the Appellate Court, clarifying that when a simple majority is the requirement, the process stops at the “rounding up.”

However, in the case of an absolute majority, he submitted that the two-fold phase must be used. According to him, that entails dividing the total number of members by two, rounding up the fraction and then adding one to arrive at the absolute majority.
Alluding to the case of Kilman v Speaker of the Parliament of the Republic of Vanuatu, the Queen’s Counsel explained that the case treats with a provision in the Constitution which requires that a motion to unseat the prime minister must be supported by an absolute majority of the Members of Parliament. In that case, the court ruled that an absolute majority of the Members of Parliament is half the members plus one.

Alexis told the court that Nandlall has lumped simple and absolute majority together, and has effectively confused the process. “Everything lumped into one but it doesn’t work like that,” he told the court, while emphasising that there is a clear distinction between a simple majority and an absolute majority.

In his earlier arguments, the Queen’s Counsel said while the principle has not yet been demonstrated in any case binding on the Courts of Guyana, it however, has been applied in cases which the Courts of Guyana may properly consider to be of persuasive authority. These cases include Hughes v Rogers, Kilman v Speaker of the Parliament of the Republic of Vanuatu, H M Rajapappa v Director of Agricultural Marketing and Agricultural Producer Marketing Committee, Ganesh Sukhdeo Gurule v Tahsildar Sinnar & Ors-Civil Appeal, Biraj Misti v District Panchayat Raj Officer 1998 and Fakrun Nessa Choudhury v The State of Assam.

Dr Alexis, like the attorney general, urged the Appellate Court not to be misled, and called for the setting aside of the chief justice’s ruling. Upon the conclusion of the oral arguments on Thursday, the chancellor indicated that notices will be sent soon with the date for the ruling.