A battery of lawyers yesterday challenged the court’s authority to weigh in on the internal affairs of parliament as arguments began on government’s constitutional motion for a ruling to sway the numerical composition of several key parliamentary committees.
The motion filed by Attorney General Anil Nandlall seeks to overturn a recent parliamentary vote on the make-up of the Committee of Selection, but lawyers for the respondents said that he failed to address the fact that the High Court has no jurisdiction to interfere unless a citizen’s fundamental rights have been breached.
David Granger, the leader of the list of candidates of A Partnership for National Unity (APNU) and Leader of the Opposition and Raphael Trotman, the leader of the list of candidates of Alliance for Change (AFC) and Speaker of the National Assembly are named as the respondents in the motion, in which the government maintains that representation in the committees must be based on the proportionality of seats that parties won at last November’s election. Both Granger and Trotman were absent from yesterday’s proceedings.
Senior Counsel Rex McKay, appearing on behalf of Granger, argued that the motion had “no legs to stand on,” deeming it improperly prepared. Attorneys-at-law Joseph Harmon, Robert Corbin, Llewellyn John, Basil Williams, and Abiola Wong-Innis, among others, appeared for Granger.
McKay, during his lengthy submission before a packed courtroom, stated that the motion was not maintainable since no attempt was made to seek a remedy under Article 153 of the constitution, which empowers the High Court to rule in cases to ensure or secure fundamental rights. “It falls nowhere near Article 153,” he stressed, while referring to a previous decision by Chancellor Kenneth George.
He added that Nandlall’s Notice of Motion itself “is bad,” stating that the Affidavit in Support of the Motion is equally bad as there is no complainant listed. He explained that a Constitutional Motion is preserved for the infringement of rights under Articles 138 to 151. He said that this is not the case in this matter.
McKay further argued that what Nandlall is doing is complaining against himself and that there was nothing in the body of the Affidavit of Support to say whether there was an error in the filing. At this point the Chief Justice interjected, saying that had it been the PPP who had filed it, it would not have made a difference.
Nandlall replied to McKay’s submission, agreeing that when there is an alleged breach of the rights set out in the constitution, one has to go to the court to utilise Article 153. However, he said that he was alleging that there was a constitutional violation and he charged that McKay’s argument was wholly irrelevant to the proceedings and ought not to be entertained.
Williams, meanwhile, in endorsing McKay’s argument, added that Nandlall’s application outlines an alleged irregularity in the internal affairs of the Parliament. “The rules of Parliament were made on Standing Orders and even if we (parliamentarians) breach that, that is our business. It is a matter for Parliament not the court.
What we did was our internal business,” he contended, while also cited several authorities reiterating the separation of powers between the legislature and the judiciary.
Attorney Roysdale Forde, on behalf of Trotman, also stressed that the High Court had no jurisdiction to even entertain the application as the motion is based on the premise that the court has the capacity to rectify the composition of the Committee of Selection.
He submitted that according to the constitution, the courts’ jurisdiction in relation to the National Assembly is to deal with membership and elections. He said that the matter now being raised deals with the internal proceedings of Parliament.
Forde added that the English Courts had previously ruled that when dealing with the National Assembly, the court “will not exercise” any jurisdiction even if it is on the basis of statutory provisions. He cited a New Zealand Court of Appeal case, Huta v Prebble 2004, which dealt with the similar issue of proportional representation. Attorney and parliamentarian Khemraj Ramjattan and attorney Nigel Hughes, who also appeared for Trotman, both challenged the motion. Ramjattan questioned the accuracy of its arguments, while Hughes charged that the state was seeking a declaration against itself, which cannot happen. The court cannot compel the leader of any list to vote in a particular way, he emphasised.
According to the motion, Nandlall is seeking a declaration that all standing committees and special select committees of the National Assembly of the 10th Parliament “are to be constituted in proportion” to the number of seats which each political party was allocated in the National Assembly based on the elections results.
“The composition of the Committee of Selection is violative of the principle of proportionality as contemplated by the Constitution since with this configuration the PPP/C with 32 seats has the same representation in the committee with APNU which only secured 26 seats. Therefore the PPP/C has only 44.44 percent of the representation with 32 seats and APNU has the same 44.44 percent representation, but with only 26 seats, leading to a disproportionality of almost five seats,” he argued in the application.
He is also seeking a declaration that the composition of the Committee of Selection done by elections – PPP, four; APNU, four and AFC, one – is a violation of the “principle of proportionality as contemplated by Articles 60 and 160 of the constitution and the provisions of the Elections Law (Amendment) Act No. 15 of 2000 and accordingly, unconstitutional, unlawful, null, void and of no effect.”
He is additionally asking the court for orders setting aside, revoking, cancelling or annulling the composition of the committee on the grounds that it was in breach of the Constitution and a breach of the provisions of the Elections Laws (Amendment) and further directing the respondents and their servants/agents to constitute all Standing Committees and Sectoral Committees and every other Committees of the 10th Parliament, whose composition are not expressly set out in the Constitution, with due regard to and in compliance with the principle of proportionality.
The case continues next Tuesday, when Nandlall is to reply to the submissions made by the lawyers for the respondents.
