The attorney for chartered accountant Christopher Ram on Friday submitted to the High Court that based on the principles of interpretation, 33 votes constitute a majority for the passage of the no-confidence motion against the government.
He also argues that in accordance with the Interpretation and General Clauses Act, the Cabinet must resign with “all convenient speed” and thereafter the government becomes a caretaker administration until elections are held due to the passage of the motion.
“The motion was validly and lawfully passed on 21 December 2018 and elections should be held no later than 21 March 2019. The Cabinet must resign and the Government continues in a caretaker role until elections are held, results declared and the President sworn in,” attorney Kamal Ramkarran says in written arguments for Ram, which were submitted in keeping with timelines set by Chief Justice Roxane George-Wiltshire last week.
An urgent fixed date application has been filed in Ram’s name 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.
Ram’s application, which lists the Leader of the Opposition Bharrat Jagdeo and the Speaker Barton Scotland as respondents, contends that the government was defeated and that elections must be called within 90 days from the passage of the motion.
Rebuttal submissions are to be served and filed on tomorrow, while oral arguments will be made on Wednesday.
The submissions for Ram have identified several principles of interpretation that they say can easily establish that the effect of the passage of the motion on puts sub-articles 106(6) and (7) into effect, resulting in four consequences.
The first relates to the use of the word ‘majority’ in Article 106(6). According to Ram, it simply means one more vote than the votes of the opposing voters in its ordinary grammatical meaning. “In the context of the entire Constitution, the phrase ‘the vote of a majority of all the elected members of the National Assembly’ means a majority of the votes of the members present and voting, which is also just one more vote than the votes of the opposing voters. In both instances, that number is 33 votes,” Ramkarran said.
Secondly, he said, on the passage of a motion of confidence, the Cabinet, including the President, must resign with all convenient speed or all due haste.
Thirdly, when the Cabinet resigns, the government, including the President and the Ministers, remain in office until elections are held, results are declared and a new President is sworn in. “They do so, however, in the absence of Cabinet which controls and directs the Government and, as a consequence, the Government must necessarily have limited powers and operate in a caretaker capacity for the conduct of elections,” he added.
The fourth consequence identified is that no proceedings in the National Assembly are invalidated by the presence of someone who was not entitled to be elected. In any event, Ramkarran argued, that person holds his or her seat until a Court disqualifies them from it and it is implied that they are entitled to be heard before they can be removed from that seat in the National Assembly. Further, he argued that it is doubtful that dual citizenship disqualifies a person for election to the National Assembly on an interpretation of the Constitution.
In outlining the basis for the proceedings and the resignation of the Cabinet, including the President, Ramkarran has argued that membership as well as the functions of the Cabinet are unambiguous.
With regards to the passage of the no confidence motion, he said while the Constitution does not say when the Cabinet should resign, Article 239(9) of the Constitution stipulates that the Interpretation and General Clauses Act applies for the purpose of interpreting the Constitution and in such application shall have effect as if it formed part of the Constitution.
He submitted that Section 39 of that Act makes it clear when something should happen if an Act provides for something to be done but does not provide a timeframe for it to be done. It provides that “in any written law where no time is prescribed or allowed within which anything shall be done, such thing shall be done with all convenient speed….”
Ramkarran argued that the resignation of Cabinet including the President, which has not happened, should have happened with all due haste. “That failure to comply with a constitutional duty is capable of attracting a coercive mandatory order if it is not promptly carried out,” he said.
He pointed out that he has not applied for a coercive order to compel the Cabinet to resign but simply asks the court for a declaration that the passage of the motion provided for by Article 106(6) of the Constitution requires the resignation of the Cabinet, including the President, with all convenient speed and it is clear that such an application is well founded.
According to Ramkarran, if there is any doubt as to how the resignation of Cabinet, including the President, is to be effected, the Constitution specifies at Article 229 how this is done. Resignations are effected in writing under the hand of the person resigning addressed to the person or authority by whom he was appointed, elected or selected.
The Prime Minister and Ministers therefore address their resignation from Cabinet to the President who appoints them under article 106(1) of the Constitution, he said while adding that in keeping with the provisions of article 106(6) of the Constitution, it is clear that the President only resigns as a member of Cabinet and not from any of the other functions bestowed upon him by Article 89.
That resignation, Ramkarran said, must be done in writing under his hand and addressed to the Speaker and he stressed that he would be resigning only one of his functions, which is as a member of Cabinet.
“To be clear, it is the Cabinet (of which the President is a part) and its functions as defined by the Constitution which come to an end until the elections are held and over. Nothing suggests that the President or the Ministers resign as President or Ministers. They simply cannot be part of Cabinet which cannot perform its functions once the Government is defeated on a vote of confidence,” he submitted
Ramkarran said that despite this resignation, the government remains in office until elections are held and a new government is chosen.
“There is no contradiction, however, between this sub-article and article 106(7) of the Constitution which provides that notwithstanding its defeat the Government shall continue in office and shall hold an election within 3 months or such longer period as the National Assembly shall determine by resolution supported by not less than two-thirds of the votes of all the elected members of the National Assembly,” he said.
He added that “this is because Constitution distinguishes between the Cabinet and the Government. The functions of the Cabinet are to aid and advise the President in the general direction and control of the Government of Guyana and to be collectively responsible for the Government of Guyana to Parliament, which is comprised of the National Assembly and the President in accordance with article 51 of the Constitution.”
Caretaker functions
Ramkarran also argued that if Cabinet is required to resign and elections are required to be called within three months, it stands to reason that the government performs only caretaker functions until election results are declared and a new government formed.
He pointed out that if the Cabinet does not exist, it is no pejorative for the government to be described as a caretaker body, much like the government of the United States between elections in November and the swearing in of a new President in January. In that case in the United States, he explained, the Cabinet is described as a ‘lame-duck’ Cabinet, a phrase described as ‘a disabled or powerless person or thing,’ according to volume 1 of the Shorter Oxford English Dictionary.
Ramkarran said during the period between the passage of a motion on a vote of confidence and the results of elections, the Government without a Cabinet fits the definition of ‘caretaker,’ which means, according to page 35 of volume 1 of the dictionary, “exercising temporary control.”
“This is so because the President and the Ministers, in the absence of Cabinet, cannot direct and control the Government of Guyana for which the Cabinet is responsible. The function of the Government during this period is to exercise temporary control of the country until the results of elections, to be held in three months, are declared,” he said, while adding that the passage of the motion necessarily means that it cannot be “business as usual” in the running of the country or else article 106(6) would have no meaning whatsoever, which could not have been the intention of the framers of the Constitution.
Making reference to the government’s argument that 34 votes were needed to carry the motion, Ramkarran said that it is clear by every definition in the dictionary that 33 is the majority where there are 65 votes. “It is the larger number or part. It is a number which is more than half the whole number (half of 65 is 32.5; 33 is more than 32.5). It is the larger party (if the votes of ‘yes’ can be considered to be a party of votes) voting together in a deliberative assembly and it is the number (being 1 vote) by which the votes cast for one party (again, the ‘yes’ party of votes) exceed those for the next in rank,” he said.
He said in addition to the plain meaning of the word ‘majority,’ the phrase “the vote of a majority of all the elected members of the National Assembly” also has a technical meaning when looked at in the context of the Constitution as a whole.
Ramkarran added that the combination of the provisions of the Constitution which he had listed means that in every instance where there is voting, the same treatment is given to Bills, petitions and motions. “It also means that any number of persons, subject to action being taken to obtain a quorum, can vote on any matter proposed for decision in the National Assembly and the side which has one more vote will succeed on the issue,” he said.
For the avoidance of doubt, he said, the use of the words “a majority of all the elected members of the National Assembly” does not actually mean that all the elected members must be present and vote or the Bill, motion or petition will fail.
Ramkarran said that such a meaning would be absurd because anything can be defeated and never passed if a single member chose to be perpetually absent and the provisions of sub-article 168(1) and standing order 48(1) would then be meaningless.
For the further avoidance of doubt, there are only two types of voting in the National Assembly (with two exceptions in sub-articles 179(1) and 184(3)); the first type is ordinary voting on Bills, motions and petitions to which sub-article 168(1) must necessarily apply and the second type is where the votes of not less than two-thirds of the members of the National Assembly are required.
“The first type of voting appears in articles 106(6), 158(2), 168(4), 212J(1) and 212AA(2). The second type of voting appears in articles 106(7), 123(5), 150(1)(c), 154A(6), 164(2), 170(4), 180(2), 180(5), 212B(1)(a), 212(J)(1), 212Q(2)(a), 212S(2)(a), 212S(2)(b), 212U(2)(b) and 212AA(2). In each instance where the first type of voting appears, the phrase which is consistently used is that which appears in sub-article 106(6), which is ‘a majority of all the elected members of the National Assembly.’ This is, therefore, what is colloquially called a simple majority, although the Constitution does not call it that, as opposed to the other type of voting, which is colloquially called a two-thirds majority,” he said while stressing that it should be clear, therefore, that 33 votes was, both on the plain meaning of the word ‘majority’ and in the context of the Constitution as a whole, sufficient for the passage of the motion on 21 December 2018.
Dual citizenship
On the question of dual citizenship, he said that the only limitation to taking part in the proceedings of the National Assembly is set out at Article 167 of the Constitution. It provides that no member shall take part in the proceedings of the National Assembly until he has made and subscribed to the oath of office.
On December 21, 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. Persaud is a Canadian citizen.
Ramkarran submitted that the appointment to a public office, like the election of a member of the National Assembly, can be likened to an order of court. He added that likewise, the election of a member of the National Assembly is valid until set aside through an election petition brought within 28 days of the results of elections.
According to Ramkarran, there having been no hearing into the eligibility or lack thereof of any of the members of the National Assembly voting on 21 December, 2018 before voting took place, there can therefore be no invalidity of the vote.
“In addition, it does not follow that holding dual citizenship voluntarily earned legally disqualifies a person from being elected to the National Assembly,” he said while adding that the Court must be aware of Guyana’s history which has led to a large number of Guyanese, perhaps more than those living in Guyana, having to migrate. He questioned whether these persons should be prevented from being elected to the National Assembly if they hold citizenship in another country.
Ram himself, however, has in the past argued that parliamentarians holding dual citizenship amounted to an “unconstitutional violation.”
