-says financing not an issue
Dismissing claims by government and the Guyana Elections Commission (GECOM) of the latter’s purported inability to hold elections before March 21st, attorney Anil Nandlall said that it is the role of the Commission to always be in a state of readiness to execute its mandate of holding elections.
Nandlall was at the time presenting oral arguments in the appeal filed by government to its collapse, following a no-confidence motion which Chief Justice (ag) Roxane George-Wiltshire SC has ruled was validly passed against it.
In his hour-long presentation before acting Chancellor Yonette Cummings-Edwards and Justices of Appeal Rishi Persaud and Dawn Gregory, Nandlall who represents Opposition Leader Bharrat Jagdeo by whom the motion was sponsored, decried the claims of unpreparedness as baseless.
He said that because of the very nature of elections which for a number of reasons can be called at any time, as provided for by the constitution, the Commission, as is usual practice, “has to always be in a state of readiness” to execute its central mandate.
Flaying GECOM’s claims of being unable to hold elections within the constitutional 3-month timeframe following the passage of the no-confidence motion, citing among other things, insufficient funds, Nandlall said the very constitution provides the means through which the Commission is to be provided with whatever funding it needs to ensure it can execute its mandate.
To this end he cited Articles 218, 219 and 220 of the constitution which he says clearly establishes the means through which the Commission is to be provided with money it may need to hold elections.
He said that there is absolutely no need to call any sitting of the National Assembly for any funds to be approved for GECOM, as government has been advancing.
In fact he said that because of circumstances such as the passage of a no-confidence motion which can cause the collapse of a government, rendering elections before an administration’s 5-year term of office ends, the constitution makes provision for funding to GECOM without resort to the National Assembly.
Political interference
He said that instead, as an impartial/ independent body which is to be free from political interference, the GECOM has resort through Articles 218, 219 and 220 to the Consolidated Fund, to satisfy whatever monetary allocation it requires to ensure elections are held when due.
To this end, he said that contrary to what Attorney General Basil Williams submitted to the court on Tuesday on behalf of government and the Commission, lack of funding can be no excuse for not executing elections before March 21st.
According to Nandlall, the claims made by the two, represent a deliberate attempt to thwart what is clearly provided for by the constitution that elections be held within 90 days on the successful passage of a no-confidence motion.
He then accused the David Granger-led administration of meddling in the affairs of the Commission, and Williams of advocating “for more time” for GECOM before the court. The lawyer said that this amounted to a violation of the principle of separation of powers, while noting that Williams was “trespassing.”
“He (Williams) wants on the one hand to say that GECOM is independent, but still make a case to the court for more time for it (GECOM),” Nandllall said, before declaring, “He is trespassing.”
According to Nandlall, the “deep welfare” which the executive and attorney general have shown for the elections commission is unheard of. He said from the passage of the motion on December 21st last, GECOM ought to have been in a state of readiness by now to hold elections by the March 21st constitutional deadline.
“GECOM has to always be ready,” Nandlall declared.
He said that the 3-month period would have been envisioned by the framers of the constitution as being adequate to prepare for elections, while noting that with limited time remaining and no positive efforts coming from the Commission, it seems unlikely that elections will be held before the deadline.
In his presentation, Nandlall also addressed government’s position that it was 34 and not 33 votes which were needed to constitute a majority for passage of the motion. To this argument the lawyer said that simple mathematics needed to be applied in determining what would be the majority of the 65-member House.
The answer he said, could only be 33 which has always been recognized and used by both sides of the House for the passing of bills and the like. As a matter of fact, he said that it was that very majority that was used by the now government when in opposition to bring a no-confidence motion which was passed against the present opposition back in 2014 causing the Granger-led APNU+AFC coalition to come to power.
Gymnastics
He expressed the view that what the government is attempting to do, is burden the court with what he described as “some sort of mathematical gymnastics,” that 33 is no longer the majority of 65.
He said that the use of the word “majority” in Article 106 (6) is to be given its plain literal meaning as it presents no ambiguity and that it ought not to be complicated as Williams had previously advanced, as needing any “absolute majority.”
He said that the plain majority of 33 has always been used and he could not understand why all of a sudden there are complaints surrounding it.
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.”
In her January 31st judgment the Chief Justice ruled that the 33 votes in favour of the motion constituted the needed majority and should have triggered the immediate resignation of the Cabinet, including the President.
The motion was declared passed by Speaker of the National Assembly, Dr. Barton Scotland following a vote in its favour by then APNU+AFC parliamentarian Charrandass Persaud on the night of December 21st.
Government had initially accepted that the motion was properly carried but later backtracked, claiming the need for an “absolute majority of 34” from the 65-member National Assembly and that Persaud’s vote was invalid given his dual citizenship.
Private citizen Compton Reid also filed a challenge to Persaud’s vote, seeking a declaration that he could not have been qualified for election as a member of the National Assembly in the first place since he had pledged allegiance to Canada, in violation of the constitution.
Justice George-Wiltshire found, however, that even though Persaud was a parliamentarian in violation of the constitution, his vote was valid.
Arguing on Tuesday on government’s behalf, Queen’s Counsel Dr. Francis Alexis submitted that the incorrect formula had been utilised on December 21st for calculating the votes to validate passage of the motion, which he said lacked the needed majority of elected parliamentarians.
Alexis argued that in Guyana’s 65-member House, half would result in a fraction of 32.5. If it is to be rounded to the next whole number, that figure will be 33 and in accordance with the practice and the application of the meaning of majority, one has to be added to calculate a majority.
According to him, the majority legally required in Article 106 (6) of the Constitution for a vote of no-confidence to pass needed to be 34 or more of all elected members of the National Assembly and not 33.
Nandlall, however, rejected this contention saying that he fails to see the logical conclusion in the argument. He said that the majority is simply the larger number of the whole and he does not see why there needs to be any division to half and the adding of one.
The lawyer also rebuffed arguments made by another of government’s attorneys—Maxwell Edwards, whose contention it is that according to Article 70 (3) of the Constitution, a government is guaranteed a 5-year term of office.
According to Nandlall, a simple examination of that article would reveal that Edwards’ argument is self-defeating. To this end, counsel pointed out that contained in that very provision is the fact that there may be a number of circumstances which may result in elections being called before the expiration of a 5-year governmental term of office.
Sooner
That article states, “Parliament, unless sooner dissolved, shall continue for five years from the date when the assembly first meets after any dissolution and shall then stand resolved.”
On this point, he then noted that Article 106 (6) must then also be considered by which a government may collapse on the passage of a no-confidence motion and earlier elections thereafter becoming necessary.
Nandlall then turned his attention to submissions which were made by attorney Roysdale Forde, also for the government that nowhere in the constitution is provision made for the laying of a no-confidence motion.
Rebutting this position, Nandlall said that if one were to look at the historical evolution of the development of Guyana’s jurisprudence in this regard, it would be detected that such a motion was in fact provided for.
To this end he cited the 1966 and 1980 Constitutions by which he said the motion was give credence, as well as amendments made in 2000 and the subsequent provision of such a motion by Act #17 of 2000.
He said that contrary to Forde’s views, it is immaterial whether the motion is referred to as a no-confidence motion or a vote of confidence as he (Forde) pointed out was stated in Article 106 (6).
Also refuted by Nandlall yesterday, were arguments previously made by Williams, warning of devastating consequences for the smooth running of the country if the finding that Cabinet should have resigned following the passage of the motion was allowed to stand.
On this point he referenced Article 106 (6) which speaks to resignation of Cabinet which includes the President, once the government is defeated by the motion of no-confidence.
Williams in his address to the court had argued that this article needed to be read and applied conjunctively with the very next Article in 106 (7) which 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 an election.”
According to Nandlall, however, it is important to first make a distinction between Cabinet and the government and to use the purposive approach to interpreting Article 106 (7) before its effect can be fully understood.
He said that in accordance with the Article 106 (6), there must be resignation of the Cabinet and President, but the government, which is separate, will remain with powers limited only to ensuring the holding of elections—and it is that government which shall resign after a new President is sworn in in accordance with 106 (7) .
Nandall said that Cabinet and government are not one and the same as proffered by Williams. In fact he said that there may be members of government who do not form Cabinet and it is that full Cabinet which must resign.
He sought to explain that while the President will still remain in that capacity as well as ministers of government, they all function in a limited capacity and the former will so remain as it is the President who is tasked with issuing a proclamation of a date for elections.
He vehemently argued that the government which essentially remains, is for the sole purpose of ensuring elections are held.
Williams had termed as “absurd,” the reasoning that the constitution called for the resignation of Cabinet. He said that, that was not the intention of the framers of the constitution as the Cabinet is central to the smooth running of the affairs of state.
In fact, Williams had said that there was no difference in the Cabinet, President and the government, while noting that there was a symbiotic relationship among them all.
The appeal hearing will recommence this morning at 9:15 at the Guyana Court of Appeal, where Nandlall will continue his arguments.
