…GECOM makes first appearance, to abide with the decision of the court

THE Caribbean Court of Justice (CCJ) has adjusted the date for the hearing of all the matters relevant to the appeals in the no-confidence motion to allow for in-depth oral arguments. Instead of hearing the arguments on a single day, the CCJ has agreed to allow the arguments to run for a period of two days, starting from Thursday May 9, 2019 instead of Friday May 10. However, the oral arguments will conclude on Friday May 10 before a panel of three judges led by President of the CCJ, Justice Adrian Saunders.

The decision to extend the days for the oral arguments was arrived at during a pretrial hearing at the Trinidad-based CCJ on Wednesday, which also took the form of a video conference. The CCJ is hearing three appeals to the Court of Appeal’s decision that the December 2018 vote of no-confidence against the Coalition Government was invalid on basis that the opposition required an absolute majority of 34 votes.

In the three appeals, the Leader of the Opposition, Bharrat Jagdeo, along with recalled Member of Parliament, Charrandass Persaud, and political activist, Christopher Ram, is trying validate the passage of the motion in an attempt to defeat the government. The three cases are: Christopher Ram v The Attorney General, the Leader of the Opposition, Joseph Harmon and the Guyana Elections Commission; Bharrat Jagdeo v The Attorney General, the Speaker of the National Assembly, Joseph Harmon and the Guyana Elections Commission; and Charrandass Persaud v Compton Reid, the Speaker of the National Assembly, the Attorney General, Bharrat Jagdeo, Joseph Harmon and the Guyana Elections Commission. The coalition government, through the attorney general, has filed a cross appeal.

On Wednesday, Attorney General, Basil Williams, appeared on behalf of the government along with Senior Counsel, Eamon Courtenay, while Attorney-at-Law, Kamal Ramkarran, appeared on behalf Christopher Ram. Attorney Sanjeev Datadin is representing Charrandass Persaud. Compton Reid, the farmer from Berbice who challenged Persaud’s presence in the National Assembly on the grounds that he was a dual citizen at the time of the vote, and therefore breached the Constitution, was represented by Senior Counsel, Neil Boston and Attorney Robert Corbin.

The Speaker of the National Assembly, Dr. Barton Scotland, was represented by Senior Counsel, Rafiq Khan, while Roysdale Forde appeared on behalf of the added respondent, Joseph Harmon. Senior Counsel, Douglas Mendes, and Attorney-at-Law, Anil Nandlall, appeared on behalf of the Opposition Leader, Bharrat Jagdeo. Abiding by an order of the court, the Guyana Elections Commission (GECOM) was represented during the hearing by its Legal Officer, Excellence Dazzell.

From the onset, Dazzell informed the Justices of Appeal that GECOM will abide by the ruling of the CCJ, and as such, it has made no submissions. This is the first time GECOM has appeared in the court for the matter since the legal battle commenced on the validity of the vote of no-confidence. It was added as a respondent in the appeals by an order of Justice Saunders. The Speaker of the National Assembly, through his attorney, has also informed the CCJ that he will abide by its decision.

STRICT TIMELINE
During the initial stages of the pretrial hearing, Justice Saunders outlined a strict timeline for the oral arguments in the three appeals. He had intended to hear the arguments within a single day, and as such, had allotted Senior Counsels Courtenay and Mendes one hour each to present their arguments, while the other attorneys were given the maximum of 15 and 30 minutes each, with additional time for replies.

“The written submissions that have been submitted are full, detailed, and there really is little need for extensive oral advocacy,” Justice Saunders told the parties.

However, Senior Counsel Mendes, though stating that the timeline presented was clear, made a case for more time to be granted. He pointed out that some of the parties’ written submissions are in excess of 300 pages with a wide range of authorities listed.

“I am cautioning that the time that you have allotted may be too short and…quite apart from the voluminous papers that are before you. The fact is there are a number of issues that have to be traversed, very important ones about the constitution of Guyana. And the one hour that you have allotted to me, for example, I fear may be eaten up very quickly,” Senor Counsel Mendes told the panel of judges.

He then suggested that the court allot an additional day for the hearing, emphasising that there are critical issues to be addressed. “Quite apart from the question of what is the majority of 65, you have issues concerning the jurisdiction of the court to entertain questions concerning disqualification outside of the elections petition period. You have questions on what is a vote of confidence, what is the effect of Article 156:03, what is the effect of Article 155:02 – that is, the Article that seeks to validate proceedings; what is the extent of the doctrine of necessity to save the invalidated vote, if you do find that the votes are invalid; what is the reach of the de facto doctrine in these circumstances…? So there are a number of issues that need to be explored in some detail,” Senior Counsel Mendes explained.

In response, Justice David Hayton, who was a part of the panel along with Justice Rajnauth-Lee, said it was simply a matter of highlighting key points.

“We will have your written submissions, so there is no point in you really orally going over what’s already there. It is just a question of highlighting certain features, best features in your 30 or 40 pages submission on a particular point,” Justice Hayton said.

Mendes’ position, however, was supported by Senior Counsel Courtenay. Kamal Ramkarran, on the other hand, objected to an extension of the time, saying that it would cause considerable hardship. He told the court of his other obligations following the hearing. Ramkarran said it would be more prudent to allow those wishing to make additional submissions, to do so between now and May 10.

Justice Saunders, upon hearing the concerns, proposed that the hearing commence on May 9 for a period of two days. He admitted that the case being heard and the issues, therein, are important.

“This is an important case. It raises some very interesting constitutional issues and while we don’t want counsel to prolong the oral arguments, nevertheless, it is in our interest that we should not stifle you from fully developing points which you have made in writing,” Justice Saunders said.

With all parties agreeing, the CCJ President set May 9 for the commencement of the oral arguments and May 10 for continuation of those arguments. With the extension, the lead attorneys in the case will be granted two hours to present their arguments while the other attorneys will be granted one hour each. Additional time has been set aside for replies.

In March, the Court of Appeal, by a 2-1 margin, ruled that the no-confidence motion, which was filed in the name of the opposition leader last December, was not validly passed in the National Assembly, thereby overturning the High Court’s decision of Chief Justice, Roxane George-Wiltshire, which was made on January 31, 2019.