Ahead of today’s ruling in the court action filed by Christopher Ram asking for declarations that the December 21 no-confidence motion was validly passed and that the President and his Cabinet should immediately resign, Chief Justice Roxane George-Wiltshire, SC, yesterday heard additional arguments on what is meant by the resignation of Cabinet with “immediate effect.”
Justice George-Wiltshire after reviewing Articles 106 (6) and (7) of the Constitution, invited the attorneys in the case to return to court. Ram’s attorney, Kamal Ramkarran, and Anil Nandlall, the attorney for Opposition Leader Bharrat Jagdeo, were adamant that the resignation is immediate and that it applies only to Cabinet and not the government. Attorney General Basil Williams, SC, however, insisted that the use of the word “notwithstanding” in Article 106 (7), ensures a timeframe of at least three months before such a resignation is made.
Article 106 (6) of the Constitution states: “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 confidence.” Article 106 (7) states: “Notwithstanding its defeat, the Government shall remain in office and shall hold an election within three months, or such longer period as the National Assembly shall by resolution supported by not less than two-thirds of the votes of all the elected members of the National Assembly determine, and shall resign after the President takes the oath of office following the election.”
In the court action, Ram is listed as the applicant while Jagdeo and Williams are the respondents. Prior to yesterday, all the parties had filed written submissions and oral arguments were heard by the court last Wednesday.
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, Speaker of the National Assembly Dr Barton 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 his attorney, asked the High Court to uphold the 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.
In giving his perspective on “whether, if the government is defeated on a no-confidence (vote), resignation of Cabinet takes immediate effect,” Ramkarran submitted that the resignation is now. “It’s automatic…It’s not a matter of choice, Cabinet has to resign,” he said in response to a direct question from the Chief Justice.
Ramkarran, who was the first to present arguments during the two-hour hearing, relied on the use of the word “if”. He presented dictionary definitions for this word and later quoted parts of the Constitution to support his contention that the resignation ought to be immediate. He said that in the event that all of the mechanisms that things are supposed to operate under are not contained in the Constitution, “we have to look at democratic principles and norms.”
Ramkarran stressed that Cabinet resigns while the government remains in place for three months or for a period of time decided by the two-thirds majority of the National Assembly until elections are held.
Timeframe
Williams, who was next to address the court, argued that the resignation does not take immediate effect, contending that Article 106 (7) provides for the timeframe for the resignation of Cabinet, the president and government.
He contended that Articles 106 (6) and (7) are inconsistent and this leads to an “ambiguity and absurd construction.”
The AG said that the courts usually adopt a purposive approach to interpreting the Constitution and said that it should not be construed in a “narrow and legalistic way but broadly and purposively so as to give effect to the spirit of the provisions.”
He pointed out too that Article 106 (2) provides two very instructive functions to Cabinet.
“It is respectfully submitted that the effect of 106 (2) is once there is a government, there must be a President and Cabinet and once there is a Parliament, there must be a Cabinet,” he said before submitting this provision creates a symbiotic relationship between Cabinet, the president and the government, and Cabinet and parliament.
He said too that Article 106 (6), insofar as it purports to sever the connection between Cabinet and government, is in collision and is inconsistent with the provisions of Article 106 (2).
According to the AG, in constructing of Article 106 (7), the framers must have intended to avoid a directionless, uncontrolled and uncoordinated government to be in office even for three months.
Responding to questions asked by the Chief Justice, Williams reminded the court that government has 27 ministers, whom he said cannot be left to their own devices as such a situation would lead to chaos. He stressed that if Cabinet does not meet, there is no direction for government and these ministers. The Cabinet, he said, holds the government together, adding that “it is senseless to say that Cabinet should go.”
Williams added too that since no timeframe is mentioned in Article 106 (6), the word “notwithstanding” connects Article 106 (7) to Article 106 (6) and provides the timeframe for the resignation of the Cabinet. His contention is that Cabinet, being part of the government, exists as long as the government exists and would accordingly resign when the government resigns.
Meanwhile, Nandlall supported Ramkarran’s contentions and went further to say that by not resigning, Cabinet is defying the Constitution.
Stopping time
“There is no order from the court stopping time from running…The Cabinet has not resigned in complete defiance of the Constitution,” he said before stressing that the resignation ought to take immediate effect.
Nandlall submitted that the AG is inviting the court to find that the framers of the Constitution and the subsequent amendments “did not know what they were doing.” He asked the court to reject this, adding that one must read the Constitution with the understanding that the framers meant exactly what they said.
He insisted that Article 106 deals with two eventualities with the latter (7) contemplating that the resignation should have happened already. Nandlall added that this Article flows without any “catastrophic consequences or inconsistences” as is being advanced by Williams.
“This is primary school English. I don’t understand why this is causing so much stress,” he said later adding that while Cabinet has to resign, the government remains in place to ensure that there is no vacuum.
“My opinion is that the government has fallen, government was defeated and Cabinet must resign,” he argued.
Asked by the Chief Justice what “immediate effect” means, Nandlall responded “I would say by operation of [the] law. If it has to be practically done, a letter of resignation should have been sent to the Parliament…to the Clerk or Speaker…If they refuse to resign, the Constitution kicks in …would render them not functional anymore,” he said.
Ramkarran, in his written submission, had detailed the method of resignation.
The Prime Minister and Ministers must address their resignation from Cabinet to the President who appoints them under Article 106(1) of the Constitution, he had said while adding that in keeping with the provisions of Article 106(6), 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 had said, must be done in writing under his hand and addressed to the Speaker and he stressed that the President 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 three 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.”
