PPP member Desmond Morian has moved to the court seeking to bar APNU+AFC members Winston Felix and Keith Scott sitting in the National Assembly unless their names are extracted from their coalition’s list.
Felix, the Minister of Citizenship and Scott, Minister in the Ministry of Communities are sitting in the National Assembly as technocratic members of the Assembly. The opposition PPP/C has however challenged this.
On June 10th, the first day of the sitting of the 11th parliament, the PPP/C had called upon the Clerk Sherlock Isaacs to not have the oath administered to the duo as their presence as technocrats violated several principles of the constitution.
In his motion filed by former Attorney General Anil Nandlall, Morian is seeking a declaration that Felix and Scott are not lawful members of the National Assembly and an order that they be prevented from sitting in the assembly unless their names are extracted from the coalition’s list.
The Attorney General and the Speaker of the National Assembly have been named as respondents.
The PPP had argued that articles 103 (3) and 105 of the Constitution and laws relating to the appointment of technocratic ministers do not confer this status on the two who had already been sworn in by President David Granger as ministers.
In his response to the PPP, Isaacs had said that a thorough examination of articles 103 (3) and 105 reveal that they do not adequately define a non-elected member. Referring to practice and the Representation of the People Act (Cap 1:03), Isaacs said that an elected member can be safely defined as a person whose name was extracted from the list of candidates and declared by GECOM to be a MP.
“It follows therefore, in my view, that a person who is on the list (presented by the contesting parties on Nomination Day) and whose name was not extracted and declared by the Guyana Elections Commission to be an elected member, can be appointed a non-elected Minister or a Parliamentary Secretary in accordance with Article 104 (3) of the Constitution”, Isaacs said.
He also noted that precedent had been set in the 9th and 10th Parliaments where Ralph Ramkarran who was on the PPP/C list of candidates in 2006 subsequently became a non-elected Speaker of the National Assembly and the same occurred with Raphael Trotman in 2011 when he was a non-elected Speaker while being on the Alliance For Change’s list of candidates.
The PPP in a rebuttal further disagreed with Isaacs’ opinion and signalled that judicial review would be sought.
The PPP said then that “The Clerk’s advice is clearly unsound, since as is known unextracted lists members are still recognized as elected members of the House and can be extracted and appointed as elected Members of Parliament” at any time during the five-year term of Parliament. The PPP said that it was clear that the drafters of the constitution intended to have different criteria for technocratic members.
Morian in his motion said the grounds of this application are as follows:
(i) that Articles 60, 103, 105, 160 and 232 of the Constitution of the Cooperative Republic of Guyana, Chapter 1:01, conjointly set out the qualifications of persons who are:
(a) elected and non-elected, members of the National Assembly;
(b) voting and non-voting members of the National Assembly.
(ii) that having regard to the clear language and the intendment of Articles 60, 103, 105, 160 and 232 of the Constitution of Guyana the said Winston Gordon Felix and Keith Winston Harold Scott are not lawful members of and cannot sit in the National Assembly of the 11th Parliament of Guyana, unless and until their names are extracted from A Partnership For National Unity + Alliance For Change National Top-up List of Candidates for the May, 11th 2015, General Elections.
In his affidavit in support of the motion he said that he has been advised by Nandlall that:
(i) Article 232 of the Constitution defined “an elected member of the National Assembly as a member of the National Assembly pursuant to the provisions of paragraph(2) of article 60 or article 160(2);”
(ii) Winston Gordon Felix and Keith Winston Harold Scott are elected Members of the National Assembly;
(iii) Articles 103(3) and 105 of the Constitution provides as follows:
Art. 103(3) “Not more than four Ministers and two Parliamentary Secretaries shall be appointed by the President from among persons who are qualified to be elected as members of the National Assembly”.
Art 105 “A Minister who was not an elected member of the Assembly at the time of his or her appointment shall (unless he or she becomes such a member) be a member of the Assembly by virtue of holding the office of Minister but shall not vote in the Assembly”.
(iv) it is obvious that Winston Gordon Felix and Keith Winston Harold Scott purport to hold seats in the National Assembly pursuant to Articles 103(3) and 105 of the Constitution;
(v) it is equally obvious that an elected member of the National Assembly are not captured by the language, spirit or intendment of Articles 103(3) and 105 of the Constitution;
(vi) having regard to the clear language and the intendment of Articles 60, 103, 105, 160 and 232 of the Constitution of Guyana the said Winston Gordon Felix and Keith Winston Harold Scott are not lawful members of and cannot sit in the National Assembly of the 11th Parliament of Guyana.
