Attorney and chartered accountant Christopher Ram has asked the High Court to uphold the recent passage of the no-confidence motion against the David Granger-led government and to declare that the President and his Cabinet should immediately resign as a result.
In an urgent fixed date application, which is set to be heard next Tuesday before acting Chief Justice Roxane George-Wiltshire SC, Ram is seeking, among other things, declarations from the court that the motion was lawfully passed and that the President and his Cabinet should immediately resign in keeping with Article 106(6) of the Constitution.
The action was filed yesterday morning, one day after the government filed its own suit which advances that the motion was not passed by the needed majority of the House.
Ram’s application contends that the government was defeated and that elections must be called within 90 days from the passage of the motion.
On December 21st, a ‘yes’ vote from government member Charrandass Persaud on a PPP/C-sponsored no-confidence motion against the government tipped the scales 33 to 32 in favour of the motion.
Consequently, Speaker of the National Assembly Dr Barton Scotland ruled that the motion was carried. The government subsequently asked him to consider them and reverse his ruling, however, at a sitting of the National Assembly last Thursday, Scotland said he would not do so and urged that the court be approached for redress.
Through his attorney Kamal Ramkarran, Ram (the applicant) wants a declaration that the National Assembly “properly, validly and lawfully passed” the motion in accordance with Article 106(6) of the constitution and that the president and Cabinet are now required to resign “with all convenient speed.”
That article provides, “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 no confidence.”
Further, Ram is seeking a declaration in accordance with Article 106(7) that the government, which comprises the 33 elected members of the National Assembly drawn from the coalition between APNU+AFC elected at the 2015 national and regional elections—excluding the Cabinet, including the president, who shall resign with all convenient speed—shall remain in office until after the president takes the oath of office following elections to be held within 90 days of the passage of the motion, or within such extended period as the National Assembly shall determine by resolution supported by not less than two-thirds of the votes of all elected members.
It is against this background that he is also hoping for a declaration that passage of the motion now requires that elections be held no later than Thursday, 21st March, 2019.
Describing the issues to be resolved in his suit as being of the most urgent public nature, Ram is also seeking an order that all timelines prescribed by the Civil Procedure Rules (CPR) 2016 be abridged as necessary in order that these proceedings be dealt with and determined in the shortest possible time.
He said that these proceedings should be regarded a matter of utmost priority in order to prevent the country from suffering the dire effects which can arise from a constitutional crisis and the ensuing chaos, confusion and uncertainty.
‘Uncertainty’
Recalling the sequence of events of December 21st in the National Assembly, Ram said that on a vote of all the elected members of the National Assembly, government was defeated on a vote of confidence brought by Opposition Leader Bharrat Jagdeo.
That motion, he said, was declared passed by the Speaker of the House, with 33 votes in favour and 32 against. On that premise, he further goes on to contend that Article 106(6) provides in imperative terms for the Cabinet, including the president, to resign if the government is defeated on a vote of confidence.
Ram notes in his suit that the imperative term, Cabinet, is defined by Article 106(1) of the constitution. That provision states, “There shall be a Cabinet for Guyana, which shall consist of the president, the prime minister, the vice-presidents, and such other ministers as may be appointed to it by the president.
Again calling for Cabinet’s resignation, Ram referenced Section 39 of the Interpretation and General Clauses Act, which he said is specifically applicable to constitutional interpretation by virtue of Article 232(9) of the constitution, which provides that where no time is prescribed or allowed in a written law within which anything shall be done, “such thing shall be done with all convenient speed.”
On this point, Ram pointed out that 18 days have elapsed since the defeat of the government and neither the president nor Cabinet has expressed an intention to resign and no date prior to or on 21st March 2019 has been fixed for elections, nor has a resolution supported by no less than two-thirds of the National Assembly determined that elections should be held within a longer period.
Ram argues that the failure of the Cabinet to resign with all convenient speed and the fixing of a date for elections no later than 21st March, 2019 “has led the country into uncertainty and will lead to a constitutional crisis if neither of those things happen in accordance with the provisions of the constitution” by 21st March.
Ram is of the view that a resulting constitutional crisis, uncertainty and instability are likely to cause investors to be reluctant to invest in Guyana and could have dire consequences for democracy and the rule of law, for the economy and the international reputation of the country.
The applicant said he is aware that there are several arguments supporting the contention that the motion on the vote of confidence was not passed—that being that 34 and not 33 votes were needed for a majority and that Persaud’s dual citizenship which would prohibit him from being a Member of Parliament in the first place, thereby making him ineligible to vote in the first place.
As regards what constitutes the majority needed for passage of the motion, Ram contends that both on the grammatical and ordinary meanings of the words “the vote of a majority of all the elected members of the National Assembly” in Article 106(6) as well as on a technical meaning of the words in the general context of the constitution, the votes of 33 members of the National Assembly constitute the vote of a majority of all the elected members of the National Assembly.
He also noted that motions and bills brought in the National Assembly have from time immemorial passed on a majority of the votes of 33 members of the 65-member National Assembly.
Ram said that in the National Assembly between 2011 and 2015, matters brought by the government were defeated by the opposition, which held a majority of 33 members and between 2015 and 2018, matters brought by the government were passed in the National Assembly on the government’s majority of 33 members in the National Assembly.
Turning his attention to Persaud’s dual citizenship, Ram said that even if it were proven that he was a citizen of Canada and established that such citizenship disqualified him from membership of the National Assembly, the fact that he made and subscribed before the National Assembly to the oath of office in accordance of Article 167 of the constitution meant that he was validly elected as a member of the National Assembly.
On this point, he argues that even a later declaration by a court that Persaud was not entitled to be elected as a member of the National Assembly cannot, in accordance with Article 165(2) of the constitution, invalidate any proceedings in the National Assembly, including the passage of the motion.
He contends further that even if it were proven that Persaud were a citizen of Canada and established that such citizenship disqualified him from membership of the National Assembly, Article 58 of the Constitution provides the penalty where a person sits or votes in the National Assembly knowing or having reasonable ground for knowing that he is not entitled to do so and where an Act sets out specific penalties it is presumed that those are intended to be the only ones available.
That article provides, “Any person who sits or votes in the National Assembly, knowing or having reasonable ground for knowing that he is not entitled to do so, shall be liable to a penalty of fifty dollars for each day upon which he or she sits or votes.”
In his affidavit forming part of his action, Ram said he is deeply interested in the rule of law and the state’s compliance with the constitution.
While initially accepting the decision, government subsequently argued that a “majority” is not 33 members of the 65-member House but 34.
It was prominent attorney Nigel Hughes who first drew attention to 34 votes being needed to constitute the majority for the vote to have been considered passed.
As Hughes had reasoned, government’s position in its action is that with the current total elected members of the National Assembly being 65 members, the majority of all the elected members would be half plus one comprising a vote of 34 or more members.
Attorney General Basil Williams has argued in his action that since “the motion of no confidence was not validly passed by 34 or more of all the elected members of the National Assembly,” it is resultantly void and of no legal effect to defeat the government on a vote of no confidence in accordance with Article 106 (6).
Just last Friday, private citizen Compton Herbert Reid filed an action challenging the validity of Persaud’s vote, given his Canadian citizenship, the consequence of which, he contends, is that the motion against the APNU+AFC government could not be regarded as having been passed.
In his action, which essentially seeks a declaration that Persaud could not have been qualified for election as a member of the National Assembly in the first place since he has pledged allegiance to Canada, Reid is also asking for an order setting aside the order of the Speaker that the no-confidence motion was passed. He is also asking for an order staying the enforcement of the no-confidence motion.
Additionally, he has asked the court for a conservatory order, preserving the status quo ante that the government remains in office until the hearing and determination of his application before the court.
