…CCJ President says determining formula crucial
…AG lays out path to arriving at number

PRESIDENT of the Caribbean Court of Justice (CCJ), Justice Adrian Saunders, adopted government’s position that an absolute majority was needed to pass the no-confidence motion.

On Friday, while receiving oral submissions from Attorney General, Basil Williams, in the three consolidated appeals on the Court of Appeal’s decisions to invalidate the last December no-confidence motion, Justice Saunders said it is clear that an absolute majority was the requirement. “No one is doubting that an absolute majority was required in this case,” Justice Saunders told the attorney general in a courtroom filled with attorneys and Ministers of Government in the Trinidad-based CCJ – Guyana’s highest court.

At the time, Williams was drawing a comparative analysis between a simple majority and an absolute majority based on a query made by Justice Jacob Wit – one of the four judges who sat alongside the President of the CCJ. It was explained that an absolute majority, is a majority of all the elected members of the National Assembly, while a simple majority is a majority of all the members present and voting.

“Dr. Francis Alexis, QC for the attorney general, submitted that the vote of a majority of all the elected members is at the level of an absolute majority of the National Assembly. That same requirement obtains in Article 164 (1) of the Constitution to alter those provisions to which Article 164 (1) relates. Thus, the voting strength required by Article 106 (6) (absolute majority) is the same as that required to pass an Act to amend those provisions governed by Article 164 (1).

On the other hand, Article 168 (1) provides for a simple majority when it requires that a decision in the National Assembly shall be determined by a majority of votes of the members present and voting, subject to there being present the prescribed quorum,” the attorney general said, as he quoted an excerpt from Justice of Appeal, Dawn Gregory’s judgment on the matter.

In that judgment, the Justice of Appeal, the attorney general further pointed out, referenced the case – Attorney General of Guyana v Cedric Richardson. “Richardson is clear authority for recognising the concepts of simple and absolute majority in the Constitution of Guyana, although the terms absolute majority and simple majority do not expressly appear in it,” Justice of Appeal Gregory had said in the court below. Williams said the court’s understanding of the Constitution is in stark contrast with that of the appellants. Opposition Leader, Bharrat Jagdeo, through his attorneys, Douglas Mendes and Anil Nandlall, had argued that the Constitution does not provide for “absolute” majority, claiming that it was read into the Constitution.

Justice Saunders said while it is established that an absolute majority was the requirement, the only issue at the moment is – “what constitutes an absolute majority?”
In response, the attorney general turned the CCJ’s attention to the case – Governor General v Mamaloni, which was also cited by Justice Gregory in her judgment. According to that case, the Constitution of the Solomon Islands states that at least one half of all the members plus one is what constitutes an absolute majority. In the Court of Appeal, Grenada’s former Attorney General, Dr. Francis Alexis, QC, in representing Williams, had described the formula as a two-phase approach.

Williams told the court that while the Chief Justice, Roxane George-Wiltshire, acknowledged in the High Court that an absolute majority was the requirement, she did not apply the half plus one formula. “The learned Chief Justice did not divide 65 by two, and did not round up and that’s where the learnt Chief Justice fell into error,” the attorney general submitted to the court.

Interjecting, President of the CCJ asked Williams to determine the absolute majority of 65, taking into account it is an uneven number. “The entire approach is that the absolute majority is a stronger and more difficult requirement than a simple majority, so they could not have the same 33 and the court showed that the majority of 64 is 33, therefore 65 must be higher,” the attorney general explained, while receiving the assurance of Justice Winston Anderson that the court fully understands his line of argument.
Roysdale Forde, the attorney representing APNU Secretary, Joseph Harmon, had also argued that the Court of Appeal properly held that the “vote of a majority of all elected members of the National Assembly” was 34 members when he reappeared before the panel of five judges on Friday.

Like, the attorney general, Forde told the court that there is a clear difference between the language in Articles 106 (6), 168, 164 (1) and 164 (2) of the Constitution of Guyana.
Article 106 (6) states: “The Cabinet including the President shall resign if the Government is defeated by the vote of a majority of all the elected members of the National Assembly on a vote-of-confidence,” while Article 168 (1) reads: “Save as otherwise provided by this Constitution, all questions proposed for decision in the National Assembly shall be determined by a majority of the votes of the members present and voting. It was pointed out that Article 106 (6) requires an absolute majority and Article 168 (1) – a simple majority. The two, he argued, could not be the same, explaining that a no-confidence motion has a higher requirement. The attorney also alluded to the Governor General v Mamaloni.

Fielding questions from Justice Wit, Forde explained that the higher requirement is necessary to prevent a repeated “break down and collapse of government,” as in the case of Israel.

In his written submissions to the court, Forde said the cases cited by Counsel for the Appellants, Bharrat Jagdeo and Christopher Ram, do not deal with any situation similar to one currently being analysed with regards to a majority of all the elected members of the National Assembly.

“The cases, ‘Alberta Federation of Labour v Alberta (Minister of Finance) and Walland v City of Macomb’, all deal with situations where the court was deciding the cases before them on the basis of the median basis that is the greater number or part. To that extent, the case of Walland v City of Macomb is inapplicable,” Forde submitted.

He therefore submitted that the Constitution of Guyana expressly provided in Article 106 (6) that there must be a majority inconsistent with the notion of “minimum overall majority” for a government to be defeated on a vote under Article 106 (6).

“The framers of the Constitution intended to ensure that governments of the Republic are not subject to defeat on a mere “majority of more than half” basis, but only by a greater majority in order to ensure a degree of stability of Governments of the Republic,” the attorney reiterated. To bolster his argument, Forde also made reference to the case of Kilman v Speaker of Parliament of the Republic of Vanuatu, which addresses the issue of absolute majority.

The attorney general and Forde were among attorneys that appeared before the panel of judges during the two days of hearings. The cases being considered by the court 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 appearances were as follow: Attorneys Devindra Kissoon and Kamal Ramkarran on behalf on Christopher Ram (an appellant); Attorneys Douglas Mendes, Devesh Maharaj, Kandace Bharath, Marcia Nadir Sharma and Chandrapratesh Satram on behalf of the Leader of the Opposition, Bharrat Jagdeo; and Attorneys Sanjeev Datadin and Stephan Singh on behalf of Charrandass Persaud, another appellant in the matter.
The Attorney General, Basil Williams, appeared in association with Belizean Senior Counsel, Eamon Courtenay; Solicitor General, Nigel Hawke; and Attorney-at-Law, Jermone Rajkumar. Roysdale Forde represented Joseph Harmon, while Senior Counsel, Neil Boston, appeared in association with Robert Corbin on behalf of Compton Reid. The Speaker of the National Assembly, Dr. Barton Scotland, who was present throughout the hearing, was represented by Senior Counsel, Rafiq Khan, while Trinidad-based Guyanese, Stanley Marcus S.C, appeared on behalf of the Guyana Elections Commission (GECOM). A date for the ruling will be announced by the CCJ at a later date.