Farmer Compton Reid has filed an appeal challenging the decisions of Chief Justice Roxane George-Wiltshire on his challenge to the validity of the passage of the December 31st no-confidence motion against government.
Reid, through a legal team headed by Senior Counsel Neil Boston and Rex McKay, says that he is dissatisfied with the entire decision and is asking the Appellate Court to set it aside. He is also asking for costs.
In the Notice of Appeal, Reid is listed as the appellant, while Speaker of the National Assembly Dr. Barton Scotland, former Member of Parliament (MP) Charrandass Persaud, the Attorney General Basil Williams, APNU General Secretary Joseph Harmon and Opposition Leader Bharrat Jagdeo are listed as the respondents.
The vote from Persaud in favour of a PPP/C-sponsored no-confidence motion against the APNU+AFC administration tipped the scales 33 to 32 in its favour. Consequently, Scotland ruled that the motion was carried. Government accepted the ruling but subsequently asked him to reconsider and reverse it. However, Scotland declined and indicated that the court should be approached for redress.
Reid subsequently challenged the validity of Persaud’s vote given that he had Canadian citizenship and that he had failed to inform his party list of him no longer supporting it.
Reid also asked for an order setting aside the order of the Speaker that the no-confidence motion was passed, an order staying the enforcement of the motion and a conservatory order, preserving the status quo ante so that the government would remain in office until the hearing and determination of his application. Justice George-Wiltshire, however, found that even though Persaud was a parliamentarian, in violation of the constitution, his vote was valid. Noting that there was no doubt that Persaud held alliance to a foreign state, the judge found that he was “not qualified” for election to the National Assembly by virtue of his own acts in acknowledging allegiance and adherence to a foreign power to the sovereign state of Canada, in contravention of Article 155 (a).
However, the judge said the court has no jurisdiction to grant a declaration regarding his disqualification as a member of the National Assembly given his dual citizenship. She said that Reid would have had to file an elections petition within 28 days.
The judge also disagreed with the assertion that Persaud ceased to be a Member of Parliament when he “crossed the floor” and voted in favour of the motion. “To put it in not so elegant terms, one who is an MP but switches… is still an MP immediately before the switch…they will not cease to be an MP at the time of the vote,” she said, while later citing Article 165 (2), which states that the presence or participation of a member who is not supposed to be there does not invalidate the proceedings. “In the context of this case, a party cannot be complicit in the perpetuation of an illegality and then cry foul when things go wrong…,” Justice George-Wiltshire said, while stressing that Persaud was clearly in violation of the dual citizenship provision of the constitution.
‘Severability’
According to the grounds of Reid’s appeal, the CJ misdirected herself and erred in law when she held that several of the declarations sought “cannot be granted in any event as the No Confidence Motion proceeding was saved by virtue of Article 165(d).”
“The learned Chief Justice failed to consider the question of “substantial severability” since the vote cast on the No Confidence Motion can be severed so that the valid part could operate independently of the invalid part which would permit the Court to sever the unlawful vote by Charrandass Persaud (the bad vote) from the other members’ votes (the good votes) voting on the No Confidence Motion… especially having regard to the fact that the learned Chief Justice had already determined that Charrandass Persaud, “was on the 7th day of April, 2015, (nomination day) disqualified from being nominated as a member of the National Assembly …and by reason of that finding, Charrandass Persaud was incompetent to vote…,” the Notice of Appeal says.
It says, too, that the judge erred and misdirected herself on the issue of having no jurisdiction to grant certain declarations on the ground that an election petition should have been filed. The contention is that it was impossible to do so within the allotted 28 days of the publication of the elections results in the Official Gazette, as the issues raised in the declaration arose after Persaud voted against his party.
Further, the Notice of Appeal states that the judge’s refusal to grant certain orders in the fixed date application is “inconsistent with her earlier ruling when she determined at paragraphs 82 and 110 that she had jurisdiction to grant and did grant the declarations sought by the Appellant/Applicant at paragraphs 1 and 2 of his Application for Constitutional Relief.”
Noting that the judge further misdirected herself when she found that Persaud was not a member by failing to take into consideration the false declaration made by Persaud in his statutory declaration of a candidate named in a candidate’s list made on the 2nd day of April, 2015, the Notice of Appeal pointed out that Article 155 (a) provides for the disqualification of a member if “by virtue of his or her own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state.”
The Chief Justice, according to the Notice of Appeal, also committed an error when she misconstrued Article 153 (3) and concluded that a member of the National Assembly who has voted against his own party list does not automatically cease to be a member and that his vote can therefore be counted.
