Charrandass Persaud committed ‘Constitutional fraud’
Recalled Member of Parliament Charrandass Persaud
Recalled Member of Parliament Charrandass Persaud

— Solicitor General Nigel Hawke contends

RECALLED Member of Parliament Charrandass Persaud committed “Constitutional fraud,” and as the guardians of the Constitution the court should not shirk its responsibility, Solicitor General Nigel Hawke argued in the Appellate Court as arguments concluded in the constitutional cases challenging the validity of the no-confidence motion.

Today, the Court of Appeal will decide whether the no-confidence motion ‘passed’ against the A Partnership for National Unity + Alliance For Change (APNU+AFC) Government was valid. The ruling will be handed down by Chancellor of the Judiciary, Yonette Cummings-Edwards and Justices of Appeal Dawn Gregory and Rishi Persaud at 15:00hrs.

On Wednesday, when oral arguments were heard in the appeal case Compton Reid v Speaker of the National Assembly, Charrandass Persaud, Attorney General, Leader of the Opposition and Joseph Harmon, the solicitor general said Persaud committed fraud on the Constitution as he echoed the sentiments of Roysdale Forde, the attorney representing Harmon.

Senior Counsel Neil Boston

In total disregard for the Constitution, which bars Members of Parliament from being Dual Citizens, Persaud accepted membership to House although he is a citizen of both Guyana and Canada. In further breach of the Constitution, Persaud failed to notify the Speaker of the National Assembly, Dr. Barton Scotland or the List Representative that he had intended to vote against the list from which his name was extracted. On these grounds, Hawke, the Attorney General Basil Williams and a battery of lawyers presenting government have argued that Persaud’s vote was null, void and of no effect on the night of December 21, 2018, and as such, the no-confidence motion was not passed by an absolute majority as stipulated by the Constitution.

Hawke told the Appellate Court that in the January 31, 2019 decision in the High Court, Chief Justice Roxane George-Wiltshire, though establishing that she has jurisdiction to address constitutional issues, fell into error when she ruled that the challenge involving Persaud’s election to the National Assembly ought to have been made by way of an Elections Petition and not a Fixed Date Application.

NOT NECESSARY
The solicitor general submitted to the court that Persaud breached the Constitution on several grounds, and on that basis, an elections petition was not necessary.
Referencing to the cases of Attorney General of Guyana, Raphael Trotman v Cedric Richardson, and Dumas v the Attorney General of Trinidad and Tobago, Hawke told the Appellate Judges that in the two cases, the courts accepted that they had jurisdiction to hear cases of constitutional violation. In defence of his position, he also cited the case of Doctors for Life International v Speaker of the National Assembly (South Africa).

“The common thread through those cases is, if the court finds that there is a constitutional violation they will intervene,” Hawke said, while emphasising that the court cannot shirk its responsibilities. According to him, the court is clothed with ample jurisdiction to address Persaud’s breach of the Constitution, and the consequences of his actions should be addressed.

Though the chief justice did not rule on Persaud’s nomination to the National Assembly, in commenting on the issue, she said Article 165 (2) saved the day. 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.

Article 58 (1) provides a penalty. “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 sits or votes,” the article states.

But the solicitor general argued that the penalty outlined in Article 58 does not and cannot in anyway stultify the court’s jurisdiction. According to him, what Persaud did was “tantamount to a constitutional blasphemy” and the court, as the guardian of the Constitution, cannot state on one hand that he is not eligible to be a Member of Parliament and on the other validate his vote. Hawke said the Constitution ought to be interpreted in a broad and purposive manner.

FRAUD
Forde also suggested that Persaud’s actions in the National Assembly amounted to “Constitutional Fraud.” He submitted that Article 106 (6) stipulated that a majority of all 65 members of the National Assembly was needed to defeat the government, and while 65 persons voted, only 64 of them were legitimate members of the House. As such, he said the vote was tied, with 32 voting in favor of the motion and 32 against. Once there is a tie, the motion is not carried. Persaud’s vote he submitted was invalid.

Sanjeev Datadin, Persaud’s attorney, in defence of his client, argued that the chief justice was correct when she ruled that the challenge should have been brought by way of an elections petition as he alluded to Article 64 and Article 65 of the Constitution. Citing one of the rules that fall within the realm of the articles, Datadin said “except by way of an election petition for redress in conformity with the act there shall be no reference to the court of any question regarding to the qualification of any person to be elected to the National Assembly or whether the result of the election may have or has been affected by any unlawful act or omission…”

According to him, there is a very complete, detailed and close regime for challenges regarding the qualification of a person to be elected as a Member of the National Assembly.
“The first thing that we would respectfully submit to the court is the challenge that has been mounted which relates to the seat and whether it has been validly allocated, respectfully ought to have been brought by an election petition within 28 days of the allocation. Your honours there is good sense as to why you have to do it within that time because if you don’t, we run the risk whereby we could be running around continuously challenging legislation, passage of bills and more importantly as was stated, the budget,” he told the Appellate Judges.

Recalled Member of Parliament Charrandass Persaud

Turning his attention to the issue of dual citizenship in the House, Datadin said Article 58 of the Constitution provides for a penalty while Article 165 (2) validates the proceedings. He argued that there is no reason for the court to go beyond the boundaries of the clear and expressed words of the Constitution, the Act and the regulations.

CANNOT CHANGE
“It is respectfully submitted that no court has the power to go beyond or behind the hand of Dr. Scotland and say that which he has accepted as being passed is unlawful,” Datadin said while noting that the Speaker, Dr. Barton Scotland and the Clerk of the National Assembly, Sherlock Isaac, certified the motion as being passed. Anil Nandlall, the attorney representing the Opposition Leader Bharrat Jagdeo, put forward similar arguments to that of Datadin.

But Senior Counsel Neil Boston said Persaud’s breach of the Constitution invalidated his vote in the National Assembly. Boston said not only was Persaud a “usurper” in the House but failed to declare his intention to vote against the list from which his name was extracted, as required by the Constitution.

Boston explained that Persaud contravened Article 156 (3) of the Constitution when he failed to notify the Speaker or the List Representatives that he had intended to vote against the list from which his name was extracted.

Instead of complying with the Constitution, Persaud waited for the “appropriate time” and voted to bring down his own government, the senior counsel said, but noted that the vote was of no effect because it cannot override the constitution – the supreme law of the land.
“It was his intention to participate in the proceeding by a back door method,” Boston told the full bench.

He explained that had Persaud informed the Speaker or the Representative of the List that he was no longer in support of the list from which his name was extracted, he would have ceased to be a member, and therefore would not have been in a position to vote.

According to Senior Counsel Boston, Article 156 (3) is intended to prevent Members of Parliament from voting against the lists from which their names were extracted. “The intention is very clear. A Member of the National Assembly cannot vote against a list from which his name was extracted. This requirement must be complied with as a matter of constitutional law,” he argued. He posited that Members of Parliament either support the lists from which their names were extracted or resign, noting that they are not permitted to cross the floor.

Boston noted that Persaud’s name was among four names listed on the A Partnership for National Unity + Alliance For Change (APNU+AFC) list for the geographical constituency of Region Six, emphasising that the electors voted for a party and not a candidate in the system of representative democracy.

“Nobody voted for Charrandass, they voted for the list,” the senior counsel posited, while reiterating that Persaud had no authority to vote against the A Partnership for National Unity + Alliance For Change (APNU+AFC) list. Boston submitted that Article 156 (3) safeguards the system of representative democracy, and, on that basis, Persaud’s vote on the night of December 21, 2018 was invalid. Boston is representing the appellant (Reid) in association with Robert Corbin and Senior Counsel Rex McKay.

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