Former President Donald Ramotar says that when his government was faced with a no-confidence motion from the opposition in 2014, it received legal advice from an attorney that at least 34 votes would be needed for the passage but he and his chief legal advisor did not believe that it would hold up in court and feared that it would cause public upheaval.
“I thought it was foolish then and I still think it is foolish now, given the clear wording of the constitution,” Ramotar told Stabroek News yesterday.
“To me, it was clear that 33 is the majority. I am no lawyer or constitutional expert, but in my view when the British instituted the Proportional Representation system, they deliberately used an odd number. I thought to say that to the people, when common sense prevails, that it would create problems in the country,” he added.
Asked what were the “problems” he foresaw from the opinion, which had been authored by attorney Stephen Fraser, Ramotar said, “mass public protests, an uproar…” and he added that he thought the masses would believe he was insulting their intelligence and common sense.
Fraser’s argument was again brought to the fore following the December 21st no-confidence motion against government, which was declared carried after APNU+AFC parliamentarian Charrandass Persaud voted with the opposition in favour of the motion.
Attorney General Basil Williams has approached the High Court to settle the legality of the vote on the motion, while saying that it needed the support of an “absolute majority” of 34 members to be valid.
Article 106(6) of the constitution provides that the “Cabinet including the President shall resign if the Government is defeated by the vote of the majority of all elected members of the National Assembly on a vote of confidence.”
Williams has argued that government was not defeated by a majority as required under Article 106(6) of the Constitution. “In order for the Government to be defeated on a vote of confidence, 34 or more votes of all the elected members in favour of the motion were required instead of 33. This assertion is grounded in established Parliamentary precedent and practice and case law in the Commonwealth,” he said in court application, noting that while the National Assembly comprises 65 members, mathematically, half of all the elected members of the current National Assembly would result in a fraction of 32.5.
Accordingly, he says that the figure should then be rounded to the next whole number, being 33, which would now represent half of the elected members and that the majority thereby being a number greater than half means that ‘1’ ought to have been added to the whole number ‘33’ to calculate an absolute majority of 34.
Williams is of the view 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 in accordance with Article 106 (6).
‘Rebelled’
Ramotar said that his then Attorney General Anil Nandlall had submitted the argument, put forward by Fraser, but also told him that he did not believe it could hold up in court.
Familiar with the laws and history of pre and post-independence Guyana, Ramotar said that the British also used odd numbers and had the constitution framed so as to avoid ambiguity. “I believed it could not fly. To me, Fraser’s view was totally off… and flies against common sense, so I rejected the opinion that Stephen Fraser gave to Nandlall, which he passed to me. I really thought it was absolute nonsense. I thought people would see it as a desperate attempt by us to hold on to power, reasonably so, and I knew that would be unconstitutional. They would have rebelled,” Ramotar said.
He believes that the APNU and AFC knew then and know now that for the motion to be passed it needed at least 33 votes. “The only reason APNU and AFC brought the motion was because they had 33 votes between them,” he said.
Ramotar said that he never believed that Fraser’s argument, although it cited a similar case in another country, could be used here because that country’s laws are crafted with different wording and is specific to its makeup.
He believed that his party would have lost the no-confidence motion because of the 33 seats held in the House by the combined opposition and it was why he chose prorogation, in the hope that the time would be used to negotiate and come to a resolution that would have allowed him to serve out his term until the elections were constitutionally due.
“It is why I went to the constitutional way and I prorogued, in the hope we have talks and come to some compromise on some of the things the opposition and we wanted. I was ready to go to sit down and talk with them about things, like local government elections. I was willing to make that compromise but after the three months expired and I saw it futile, I called the election. Remember, I had the constitutional option of proroguing again but I didn’t see the use in that because I thought it would not have been good for our country,” he added.
He said that some persons in opposition felt that a continuous prorogation would have been the avenue his government would use to hold on to running the country, until the stipulated time for elections in 2016.
But he said he chose country over legal rights and has not regretted his decision.
‘Not persuaded’
Nandlall echoed Ramotar’s position as he recounted his recommendations to the then president.
“I wish to confirm that in 2014, when the APNU+AFC placed a No-Confidence Motion against the Donald Ramotar minority government in the National Assembly, I received an opinion from a member of the private bar, which argued that 33 votes would not constitute the majority required for passing the No-Confidence Motion. I was the Attorney General at the time and the PPP Government had 32 seats in the National Assembly while the APNU+AFC, though separate then, together had 33 seats. I was not persuaded by the arguments presented in the opinion. I informed the President of the opinion and of my views of it. As a result, rather than allowing the No-Confidence Motion to be debated and suffer the indignity of a defeat, the government prorogued Parliament, then dissolved it and fixed a date for national and regional elections. I must emphasize that all those mechanisms to which the Government resorted are provided for in the Constitution and form part of our democratic architecture,” Nandlall said when contacted.
“I was not persuaded by the legal opinion because our Constitution requires a simple majority to carry a No-Confidence Motion and that 33 votes would constitute such a majority. To my mind, it is as simple as that and no amount of legal jiggery-pokery can change this legal mathematical truth. In my view, none of the legal authorities cited and relied upon in that opinion apply to the Guyana Constitution to change this reality. Additionally, parliamentary conduct is not only bound by the Constitution and the laws, but is bound by practice and precedents. Since Independence, 33 votes have always been considered as majority in Guyana’s 65-member National Assembly. This practice crystallized in the 10th Parliament, where the Opposition was able to pass Motions and Bills, using their 33-seat majority over the Government’s 32 seats. Similarly, they were able to pass Motions cutting the budgets and voted down Bills brought by the Government in that Parliament,” he added.
He said that it is the “very 33-seat majority” that caused the APNU+AFC to form the government after the 2015 elections. “It is the same 33-seat majority that enabled them to pass every budget and pass every Bill in the 11th Parliament. It is this very 33-seat majority they had intended to use to defeat the very No-Confidence Motion. Against this formidable backdrop of accumulated precedents, it is simply asinine to argue that 33 seats do not constitute a majority to pass a No-Confidence Motion,” Nandlall stressed.
“It is no coincidence that respected Senior Counsel, Mr. Rex McKay, did not include this argument in the challenge which he has filed against the No-Confidence Motion. Similarly, it is no coincidence that it is Attorney General Basil Williams who chooses to challenge the No-Confidence Motion on this basis,” he added.
