The Canadian parliamentary system is said to honour the idea of responsible government as one of its key principles. This means that the government is responsible to the people, but also that the politicians who run the government are responsible to the entire House of Commons — even the opposition parties. If the House of Commons votes that it has “lost confidence” in the government, then that government is said to have lost its democratic right to remain in office… and the government must call an emergency parliamentary election, and win it, in order to remain in office.
Canadian Government website
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Two Saturdays ago, the Transparency Institute Guyana Inc. (TIGI) held its annual fundraising dinner. The guest speaker was Suriname’s former Minister of Justice and the Police, Mr. Chandrikapersaud Santokhi who is the leader of the Progressive Reform Party. In his presentation, Mr. Santokhi stated that citizens should reap the benefits of wealth generated from the extraction of Guyana’s oil and gas resources in order to impact positively on their lives; the money earned belongs to the people and not any political party; and the funds garnered should be managed in an effective, transparent, accountable manner in collaboration with government and independent institutions. Mr. Santokhi asserted that ‘[t]he most fundamental determining factor for progress, therefore, lies not in minerals but in the quality of governance, regardless of the natural resources available’.
And in his opening remarks, TIGI’s President, Dr. Troy Thomas, advocated an amendment to the Integrity Commission Act to allow for asset declarations by the President and Opposition Leader to be made public. He applauded the Commission for publishing the names of public officials who have not filed declarations. Dr. Thomas, however, bemoaned the fact that there have been no convictions so far based on the numerous forensic audits conducted in 2015-2016. He also expressed concerns that no funds were budgeted to fill the position of Commissioner of Information; no campaign financing legislation is in place despite promises made; and no explanation has so far been provided for the rejection of 18 nominees for the post of Chairman of GECOM, as required by the Chief Justice’s ruling.
Recap of Last Week’s Article
Last week, we reported on the outcome of the appeal by the Government of the Chief Justice’s ruling on the validity of the 21 December 2018 vote of no confidence. By majority decision 2 to 3, the Court of Appeal held that the no confidence vote was not validly passed since the votes of 34 Members of Parliament (MPs) were required, and not 33. The court accepted the argument that an ‘absolute’ majority was needed while at the same time acknowledging that 33 votes constitute a ‘simple’ majority. The lawyers for the Government contended that in a 65-seat Assembly, one-half of the Assembly is 32.5. Since there cannot be a fraction of an MP, one-half is 33, and ‘in accordance with the practice and the application of the meaning of majority, one has to be added to calculate a majority’.
The lawyers for the Opposition argued that Article 106(7) refers to ‘a vote of a majority of all elected members’, and the votes of at least 33 MPs constitute a majority. They also contend that the word ‘absolute’ is not to be found in Article 106(7).
The dissenting opinion was given by Justice Rishi Persaud who endorsed the ruling of the Chief Justice on the matter. He stated that a majority of 33 has long been used by the Assembly without complaint and that Article 106(6) does not provide for a mathematical formula to be used in determining a majority. He also referred to Articles 168(2) and 168(3) which provides that in the event of a tie in the votes, the motion is defeated; and contended that ‘[t]he inferences are clear’. Justice Persaud further stated that ‘the formula of first dividing by one half then rounding up to the nearest whole plus one has no application here. It does not accord with logic and common sense in situations where there is an uneven number of members unless that specific formula is prescribed’.
Appeals to the CCJ
Two appeals have since been lodged with the Caribbean Court of Justice (CCJ). The first is by Christopher Ram who requested an early hearing, and if the CCJ overturns the Court of Appeal ruling, an Order for elections can be held not later than 29 April 2019. The validity of the current voters’ list expires on 30 April 2019. Mr. Ram contended that the Court of Appeal erred when, by majority decision, it ruled that in the context of Article 106(6) of the Constitution, the votes of 34 MPs were needed for the successful passage of the no confidence vote, and not 33.
A second appeal was filed on behalf of the Opposition Leader challenging the Court of Appeal ruling on similar grounds. In his application, the Opposition Leader stated that, among others, ‘[m]ore elected members voted in favour of the motion than voted against and all members voted. On the plain and ordinary meaning of the words used in article 106(6), the motion was carried by a majority of elected members’.
The appeals are set to be heard on 10 May 2019.
Simple Majority and Absolute Majority
We did some internet searches and came up with the following: A simple majority requires more than 50 percent of the votes of members present and voting. For example, in a legislature comprising 100 members, if 90 members were present and voted, the threshold for a simple majority is 45 + 1 = 46. Most of the decisions of the legislature, including a motion of no confidence, are normally made by a simple majority. On the other hand, an absolute majority is more than 50 percent of the total membership of the legislature. In the above example, the threshold for absolute majority will be 50 + 1 = 51. Therefore, where the number of votes cast equals the total membership of the legislature, there is no difference in numbers between a simple majority and an absolute majority. See http://www.simplydecoded.com/2014/08/17/different-types-majority-provisions-constitution/ and http://en.euabc.com/word/833.
Article 106(6) of the Guyana Constitution refers to ‘the vote of a majority of all elected members of the National Assembly on a vote of confidence’ which is in effect an absolute majority. All the elected MPs voted in the 21 December 2018 no confidence vote. So, what is the majority in an Assembly of 65 members where all the members were present and voted?
Another website, https://classroom.synonym.com/how-to-calculate-a-majority-vote-12083634.html, suggests that you count the total number of votes cast. Divide the total by two. For an even-numbered total, add one to the result to find the threshold for the majority. For an odd total, round to the higher number for the majority. The website gives the following example: A total of 951 votes cast. Divide by 2 = 475.5 which rounds up to 476. In the Guyana case, 65 votes have been cast. Divide by 2 = 32.5 which rounds up to 33. In other words, 32.5 is the dividing line between a majority vote and a minority vote. If you round up upwards, you get the threshold majority of 33.
A fourth website suggests that if the number of votes, n, is even, then a majority is n/2 + 1. If the number of votes, n, is odd, then a majority is (n +1)/2. (https://www.radford.edu/~wacase/Unit%207%20voting%20Theory%20and%20Dilemmas.pdf Therefore, where 65 votes are cast, the majority threshold is therefore (65 + 1)/2 = 33.
A fifth website (https://msu.edu/~spha/documents/determinevote.pdf) provides a table entitled ‘TABLE FOR DETERMINING MAJORITY AND TWO-THIRDS VOTES (THE PARLIAMENTARY PROCEDURE INSTRUCTIONAL MATERIALS CENTER)’ indicating what constitutes a majority vote using votes cast from 1 to 50. Moving down the table shows clearly that for 65 votes cast, the majority is 33. The same applies to all odd numbers of votes. There is no mention of rounding off to the nearest whole number and adding one.
India is the largest democracy in the world. In its Parliament (Lok Sabha) where the full membership is 545, the threshold for the majority is 273. (https://www.quora.com/What-is-the-difference-between-a-simple-majority-and-a-special-majority-in-the-Indian-parliament). Similarly, in the U.S. Congress which comprises 435 members, 218 votes are needed to pass a bill, while in the Senate which comprises 100 members, 51 votes are needed for the President to sign the bill into law. (https://www.reference.com/government-politics/many-votes-needed-pass-bill-1fae7ec1a6994265); https://www.house.gov/the-house-explained/the-legislative-process
Resumption of Sittings of the National Assembly
The Government has announced the sittings of the National Assembly would resume on Thursday. One of the items to be tabled is a Financial Paper requesting approval of the sum of $3.5 billion for the holding of general and regional elections. According to the President, GECOM will be provided with the resources to conduct such elections ‘to ensure that whatever happens at any level of the judicial system, Guyana is going to be prepared’.
We have no difficulty with this decision since it is not inconsistent with the court ruling. However, we are concerned by the statements made by Government officials that MPs who hold dual citizenship would be attending the sittings and presumably would be allowed to vote for the approval of the Financial Paper and any other matters. The contention is that the Cabinet has not yet deliberated on the matter. However, it is the individual MP who is in clear violation of not only Article 155(1) (a) of the Constitution but also the ruling of the Court. That Article states that ‘[n]o person shall be qualified for election as a member of the National Assembly who is, by virtue of his or her own act, under acknowledgement of allegiance to a foreign power or state’. The concerned MPs therefore have both a moral and a legal obligation to either renounce their foreign citizenship or to resign from membership of the National Assembly, and this has to be done before Thursday’s sitting.
A related issue is that by Article 91(1), where the President is absent from Guyana, he may authorize in writing any member of the Cabinet to perform such functions of the Presidency as he may specify. Therefore, any Cabinet member having dual citizenship and performing such functions, is in violation of the Constitution.
Conclusion
It is unclear how the Appeal Court was able to conclude that in the context of Article 106(6) of the Constitution, the simple majority is 33 while the absolute majority is 34. As indicated above, where all the members of the Assembly participated and voted, the simple majority and the absolute majority are the same, that figure being 33 and not 34. If 34 is accepted as the majority vote, then the minority vote is 31, and difference of three votes – clearly not only an absurdity but also one that defies logical reasoning. We have also not found any evidence where there is a rounding off of votes to which is added one to arrive at a majority vote. Where there is an odd number of votes cast, in order to determine the threshold for a majority, you have to add one to the total votes cast, then divide by two. Alternatively, you can divide the total votes cast by 2 and round off to the next number. To do otherwise, is to indulge an exercise of creative mathematics.
If this situation as well as other constitutional, legislative and judicial violations are allowed to prevail, we will be opening the floodgates for other serious violations to take place; and run the risk of a tendency towards authoritarian behaviour. If the latter happens, it will usher in a second period in the history of post-Independence Guyana of authoritarianism which will be a significant setback for our democracy. It will also represent a significant blow for those, especially in civil society, who have fought so vigorously over the years to protect and defend the public interest and the public good, against wrongdoings and lack of good governance. Some of them became victims of discrimination in terms of job opportunities and other benefits to which they are duly entitled and were the victims of State-sponsored character assassination and personal vilification. Others have been ostracized by sections of the population who are either unable or unwilling to distinguish between taking positions based on sentiments on the one hand, and careful analyses of facts and pertinent arguments, on the other. Needless to mention, the latter is indispensable to the development of a society based on justice, equality and rule of law.
We eagerly await the outcome of the ruling of the CCJ.
