GEORGETOWN, Guyana, Mar 13, CMC – The Court of Appeal will continue hearing arguments Tuesday in the matter in which the Minister of Legal Affairs, Senior Counsel Basil Williams, is arguing that the acting Chief Justice Roxanne George erred when she ruled earlier this year that the motion of no co9nfidence passed in the National assembly last December resulting in the downfall of the coalition government here was valid.
Williams, who is also the Attorney General, is heading a battery of lawyers that include Grenada-born constitutional expert, Dr. Francis Alexis, QC, as the government seeks to get the Appeal Court to overturn the ruling of Justice George on January 31.
The judge had ruled that the successful motion of no confidence filed by Opposition Leader Bharrat Jagdeo in the National Assembly on December 21, 2018 was valid and also refused to grant a conservatory order delaying the countdown to the 90 days when fresh regional and general elections must be held.
Jagdeo had been able to succeed in the motion after a government backbencher, Charrandas Persaud voted with the opposition thereby overturning the slender one seat majority the coalition had enjoyed in the 65-member Assembly.
During Monday’s arguments in the case of the Attorney General versus Christopher Ram, Minister of State Joseph Harmon, in his capacity as representative of A Partnership for National Unity (APNU), and Speaker of the National Assembly, Dr. Barton Scotland, the Attorney General argued that Justice George erred when she ruled that President David Granger and the Cabinet ought to have immediately resigned upon the passage of the motion of no confidence.
Williams contended that the Constitution does not provide for the immediate resignation of the President and Cabinet.
“What if the three months expires and no elections are held within the provisions of Article 106 (7)?” he asked, submitting that the Constitution makes no provisions for the government to hold an election.
Williams said that power is entrusted with the Guyana Elections Commission (GECOM), which is authorized under the Constitution to conduct, run preside over and conduct elections.
Justice Roxane George ruled that the motion was validly passed since its resolution was carried by a majority of 33 to 32 elected members of the National Assembly in accordance with Article 106 (6) of the Constitution which reads, “The Cabinet including the President shall resign if the government is defeated by a vote of majority of all elected members of the National Assembly on a vote of confidence.”
But Alexis, argued that the judge erred in ruling insisting that there was a miscalculation of votes, and that in order for the motion to be passed an “absolute majority” of all elected members was required.
He told the Appeal Court that in calculating the “absolute majority”, the 65 members of the National Assembly had to be divided by two, which would result in 32.5, a fraction which one has to be added to, bringing the total to 33.5, which now has to be rounded to the higher number, giving 34.
“But you can only round up if a fraction is the result. A fraction comes into the exercise. You cannot get away from that. A fraction is rounded up, not down, left alone. That’s why the fraction was rounded up in the case of Hughes v Rogers.”
He argued that the Chief Justice failed to apply this rule when arriving at a majority, since, in her judgment, she explained that it was not required, given that it was an odd number House.
Alexis, a law lecturer, further argued that passing a no-confidence motion is not on the same level as passing an ordinary Act, which would require a simple majority.
He urged that the Appeal Court return to the traditions and usage that were current at the time when the framers of the Constitution were in writing.
“Framers do not operate in a vacuum. If we are going to move away from a majority of all members it cannot be moved away overnight. And if so, a strong case has to be made out.”
Attorney Maxwell Edwards, who is also representing the State, argued that the government cannot be defeated by the passage of a no-confidence motion, since it is guaranteed five years in office pursuant to Articles 70 (3) of the Constitution.
That section of the Constitution reads ““Parliament, unless sooner dissolved, shall continue for five years from the date when the National Assembly first meets after any dissolution and shall then stand dissolved.”
Edwards argued that this Article is inconsistent with Section 5 of the Constitution Amendment Act No. 17 of 2000, which introduced the No-Confidence Motion of the laws of Guyana.
“Every government looks forward to serving five years, not because they want to, if they had it their way, they would serve 10, but the Constitution guarantees that five years.”
Attorney Roysdale Forde, who is representing Harmon, argued that a vote of confidence provided for in Article 106 (6) and a motion of no-confidence, which relates to the accountability of government, are two completely separate and distinct parliamentary devices.
He told the Appeal Court that there are three bases on which a motion of no-confidence is properly construed, one of them being that the executive must be accountable to the House.
Forde said that in Guyana’s case, the President is elected by the people.
He argued that Article 106 (2) does not set out these three principles and that the motion debated and purportedly passed is not provided for under Article 106 (6), which he argued, does not invite or permit a motion of no confidence, but rather a vote of confidence.
Forde told the panel of judges that the government is allowed to bring a vote of confidence in the National Assembly to test its stability and strength, and if government is defeated, the consequences of Article 106 (6) kick in.
Following the hearing on Monday, Alexis told reporters he was satisfied with the hearing.
“The Attorney General has highlighted issues that need to be addressed on an occasion like this, for example, what is the role of Cabinet and more importantly how is the state going to be run if the Cabinet cannot bring financial measures to the Assembly.”
He said the issues are very “weighty” and noted that Guyana is opening the eyes of the world, particularly the Commonwealth, about the issues that can arise when a country is charting its own way constitutionally.
“This is one for the law reports, to teach the rest of the world,” Dr. Alexis said.