Chief Justice (ag) Roxane George-Wiltshire SC yesterday heard oral submissions in the court action filed by Christopher Ram, asking for declarations that the December 21 no-confidence motion was validity passed and that the President and his Cabinet should immediately resign in keeping with the Constitution and she consequently said that she would try her very best to deliver a ruling on January 31 at 1:30 pm.
The two-hour-long proceeding followed the filing of written submissions and rebuttals last Friday and Monday respectively. The attorneys for the applicant (Ram) and the respondents (Leader of the Opposition Bharrat Jagdeo and the Attorney General) used yesterday to strengthen their arguments.
On December 21st, a vote by then APNU+AFC member Charrandass Persaud to an opposition PPP/C sponsored no-confidence motion against the government tipped the scales 33 to 32 in favour of the motion. Consequently, Scotland ruled that the motion had been carried.
Scotland subsequently refused an invitation by the government to reverse his decision on the motion, saying redress could be sought in court. He has given a commitment to the court that he will abide and respect any order that is made.
On January 8th, Ram, through attorney Kamal Ramkarran, asked the High Court to uphold the recent passage of the no-confidence motion and to declare that the President and his Cabinet should immediately resign as a result.
In an urgent fixed date application, 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.
Ram’s application contends that the government was defeated and that elections must be called within 90 days from the passage of the motion.
Ramkarran who opened the arguments stressed that regarding the resignation of the president and the cabinet, the constitution is “clear and unambiguous.” Referencing Article 106 (6) and and (7), he stressed that cabinet has distinct functions and in the event of a resignation a government will be in place but will only be able to perform limited function.
He submitted that a resignation of the cabinet will not lead to “chaos” as some are arguing since the president remains in place and the ministers will remain ministers. Ramkarran stressed that the government will become a caretaker government doing only limited functions until elections are held and a new government sworn in.
He argued that the resignation of cabinet would mean that no major contracts or new legislation can be put in place and that there would be no business as usual anymore. Pointing out that a budget was passed, he said that permanent secretaries who run ministries can utilize those budgetary provisions.
He pointed out that in the event of a national emergency or public disorder, a group of ministers, “not called cabinet can find a solution.”
Attorney General Basil Williams later contended that there can be no distinction between cabinet and government and to have the former resign will lead to a chaotic situation if every minister is left to his own devices. He reiterated that nowhere in the constitution speaks to a caretaker government and as such the government has to continue operating as normal until elections are held. He said too that there is no mention of the dissolution of parliament before elections are held.
“The court has to put a stay on this matter and the court itself can make a ruling that could impact this state of affairs and that is why we have come to court,” he said.
Anil Nandlall, Jagdeo’s lawyer alluded to the fact that the constitution does not contemplate any vacuum in the executive but this is subject to and subservient to the expressed language of the constitution. He said that Article 106 provides details of who will comprise the cabinet as well as functions.
On January 15 when the case was first called Nandlall has said that he was not going to play an active role in defending this matter. However following submissions by the AG he has had a change of mind and indicated to the court that he wanted to address some issues.
Nandlall argued that the constitution “logically” requires the cabinet and the president to resign upon the passage of a no confidence motion and said that the law must be interpreted liberally and one must make sense of it.
He said that the proceeding Article, makes it clear that cabinet is the “executive nucleus” of the government. “Cabinet is the subset…so 106 requires one component to resign because that component was defeated by a vote in the parliament but the Government of Guyana is larger than that,” he said. He said that when a new president is elected then the government resigns. “It is written in the clearest form of the English Language,” before reiterating that the resignation of the cabinet would not result in a vacuum.
Ramkarran during his submissions pointed out that cabinet has not resigned and the National Assembly has not met to extend the date of elections. “The time is running” for elections to be held, he said before adding that the law stipulates that elections are to be 90 days after the passage of a no confidence motion, which would mean that elections are constitutionally due by March 21, this year.
On this issue, Ramkarran said that the elections date can be altered only through an agreement by two-thirds of the members of the National Assembly. He said too that the holding of elections should not be affected by the readiness of the Guyana Elections Commission (GECOM) or the time the court takes to determine the case.
Majority
As pointed out in his written submissions, he argued that based on the existing definitions of majority, 33 is the number of votes required to pass the motion.
Ramkarran has submitted that the use of the word ‘majority’ in Article 106(6), 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 had said in his written submissions.
Williams argued that the no-confidence motion cannot be treated the same way as a bill. He said that in this respect a higher vote than the simple majority is required. He argued that a simple majority of 33 would be needed to pass bills but a different formula will have to be used for a no confidence motion which requires an absolute majority. He reiterated that this formula will be half plus one. He said that the half would result in a fraction, it has to be rounded up to the nearest whole number and one added for there to be a majority in a no confidence motion; thus it would mean that 34 votes are required (32.5 rounded up to 33 + 1).
Nandlall in response to the AG said that this formula makes no sense. In an attempt to validate his point, he said in the case of three, if one were to use Williams’ formula the answer remains three. “There goes the argument. Three can’t be a majority of three….The majority of three using that formula is three. Nonsense!” he said.
He said that Williams has neglected to show the court where in the constitution, it states that the no confidence motion is to be treated differently from a bill.
Today the CJ will hear the case filed by private citizen Compton Reid and the following day, Williams’ action asking the court to settle the legality of the vote on the motion, which he contends needed the support of an “absolute majority” of 34 of the 65 elected Members of Parliament to be valid.
