A recently released report by the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services is a cause for serious concern for all who care about the state of our planet and its future well-being. Among the key findings are: one million species of plants and animals are threatened with extinction; three-quarters of the earth’s land and two thirds of its marine environment have been ‘significantly altered’ by human activity; more than 85 percent of wetlands have disappeared; more than 90 percent of the oceans’ fish stocks are being harvested above sustainable levels; and more than 40 percent of amphibians are threatened with or on the brink of extinction, as are a third of marine mammals, a third of sharks, a third of corals and over 10 percent of the world’s insects. (See https://www.economist.com/science-and-technology/2019/05/11/a-new-report-confirms-that-life-on-earth-is-in-trouble.)
Another recent report by the UN Environment Programme Finance Initiative asserted that global delays in tackling climate change will cost the world’s largest companies £1 trillion. According to the UK insurance giant Aviva that was involved in the compilation of the data for the report, the valuation of the fossil fuel sector has gone up by about $580 billion (£445 billion) since the 2015 Paris Agreement, and ‘[f]or the governments to think their job is done now that the Paris Agreement is signed is wrong. This remains the world’s biggest market failure’. (See https://www.msn.com/en-gb/news/world/un-climate-change-will-cost-worlds-biggest-firms-almost-c2-a31trn/ar-AAB901P)
During the period 8-10 May 2019, the Caribbean Court of Justice (CCJ) heard arguments on the appeals against the rulings of the Guyana High Court and the Guyana Court of Appeal on the appointment of the Chairman of the Guyana Elections Commission (GECOM) and the validity of the 21 December 2018 vote of no confidence in the Government. In this article, we highlight some pertinent arguments raised by lawyers as well as the comments of the judges.
Appointment of GECOM Chairman
Dr. Steve Surujbally, former Chairman of the Guyana Elections Commission (GECOM), resigned with effect from 1 December 2016. By Article 161 (2) of the Constitution, the President is required to appoint a new Chairman from a list of six persons, not unacceptable to him, submitted by the Leader of the Opposition after meaningful consultation with non-government political parties represented in the National Assembly. However, if the Opposition Leader fails to submit such a list, the President shall appoint a person who has been a judge or is qualified to be appointed a judge.
On 21 December 2016, the Opposition Leader submitted a list of six persons in accordance with the above-mentioned article. However, the President rejected the list, and the two leaders met to discuss to matter. Two other submissions were made on 2 May 2017 and 25 August 2017, and both lists were also rejected. On 19 October 2017, the President appointed retired judge Mr. James Patterson as the new Chairman of GECOM. Mr. Patterson’s name was not in any of the ists submitted by the Opposition Leader.
The Opposition, through one of its representatives, Mr. Zulfikar Mustapha, sought judicial review in the local courts of the President’s appointment of Mr. Patterson. The courts, however, ruled that the appointment was in order. Mr. Mustapha then sought the intervention of the CCJ.
On 8 May 2019, oral presentations were made to the judges of the CCJ. Lawyers for the Government argued that the President has the sole discretion on the acceptability of a candidate for the post of Chairman of GECOM. Once he finds the names submitted to him unacceptable, he could reject the list without giving reasons. They further argued that if there is at least one person on the list acceptable to the President, and the other five are unacceptable, the President can still reject the entire list without giving reasons.
Much to the surprise of the judges, the Government lawyers went on to argue that even if the list submitted to the President is found acceptable, the President could still reject the list without giving reasons. The President of the CCJ, Justice Saunders, interjected by referring to the constitutional provisions that mandate the President to select someone ‘not unacceptable’ from the lists supplied by the Opposition Leader. He enquired how will it be known if the President finds the list unacceptable if he (the President) does not provide reasons for rejecting it.
It was pointed out that Articles 161 (1) and (2) were amendments to the old law which had provided for only the President to choose the Chairman of GECOM. Justice Saunders then enquired about the purpose of these amendments if the President could simply reject a list without giving reasons for doing so; and whether this action would not amount to the President again just choosing whoever he wants as was done prior to the constitutional amendments of 2000.
Lawyers for Mr. Mustapha insisted that the President’s resort to the proviso in Article 161 (2) was unlawfully done especially since he did not provide any reasons for rejecting the names of 18 nominees submitted to him by Opposition Leader. They argued that the process of consultation can only work if the President gives reasons for his rejection of a list and that the Constitution envisages a collaborative effort through meaningful consultation where both the President and Opposition Leader enjoy the confidence of the candidate chosen.
Upon enquiry from the court, the Government lawyers stated that such consultation should take place after the submission of the list. The court then enquired what would be the point of having consultation after the list is already submitted and rejected by the President. Justice Anderson considered that there should be some form of ‘meaningful’ consultations between the President and the Opposition Leader to reach an acceptable agreement. He felt that it is a tragedy for the court to be the ultimate decider on the matter.
Another argument presented by the Government lawyers was that Article 161 is not enforceable by the court and is one in which the court should not intervene except where ‘on the face of it there is some illegality or irrationality’. Justice Saunders then enquired how it is that it would be known if there is a defect in the President’s actions. While eventually acknowledging that the President’s actions can be subject to judicial review, the Government lawyers contended that such intervention ought not to be applicable to the case on hand.
Mustapha’s lawyers considered that Guyana has a modern constitution that imbues openness and transparency and that the Constitution goes to great pains to ensure that the rule of law is respected and that democratic principles are followed. However, the arguments put forward by the Government lawyers meant taking Guyana into the past which is akin to a monarchy. They further pointed out that previous Chairmen were appointed from lists put forward by the Opposition Leader. The lawyers, however, acknowledged that the President would be justified to exercise unilateral action if the Opposition Leader stacks the list with party affiliates as this would be viewed as an abuse of the constitutional provision.
Validity of the No Confidence Vote
On 21 December 2018, 33 out of the 65 elected members of the National Assembly voted in favour of a motion of no confidence in the Government, compared with 32 members voting against the motion. Accord-ingly, the Speaker ruled that the motion was carried. By Article 106 (6), ‘[t]he 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’.
Initially, the Government accepted the Speaker’s ruling. However, disagreement soon surfaced as to the number of elected members that should make up the majority in the Assembly. Some have argued that such number should be 34 or more and not 33 because mathematically, one-half of the Assembly is 32.5. Since there cannot be one-half of a member, 33 members make up half of the Assembly and therefore the majority of the Assembly would be 34 or more and not 33. Accordingly, the Government sought judicial review in the local courts. The Chief Justice ruled that the motion had succeeded. However, when the Opposition took the matter to the Court of Appeal, the latter, by majority decision, held that 34 votes were required for the no confidence motion to succeed.
To add to the confusion, there has been the suggestion that an ‘absolute majority’ was needed for the no confidence vote to succeed. As stated in our article of 1 April 2019, a simple majority requires more than 50 percent of the votes of members present and voting. On the other hand, an absolute majority requires more than 50 percent of the total membership of the legislature. Where 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, as was the case of the 21 December 2018 no confidence vote.
In a YouTube presentation entitled ‘Guyana’s CCJ case and Implications for Commonwealth Caribbean democracy’, Prof. Errol Miller considered the suggestion that 34 out of 65 being the majority, as having represented ‘new electoral mathematics’ that has far-reaching implications for the Caribbean and further afield. He referred to the situation in Trinidad and Tobago in 2001 where the results of the national elections resulted in an equal number of seats in the 36-member Parliament. Recognising the difficulty posed in having an even number of seats in the House, the Trinidad and Tobago Government increased to the number of seats in its Parliament to 41. Jamaica also amended its Constitution to reflect an odd number of seats in its Parliament. In the 2016 elections, the Jamaican Labour Party (JLP) won 32 seats against 31 won by the People’s National Party (PNP). The Jamaica people accepted that the JLP won the elections and since then all laws were passed on a 32:31 majority.
Former Speaker of the National Assembly, Ralph Ramkarran, referred to the no confidence vote in his column of 12 May 2019:
The major issue in the no confidence motion case, of course, is the validity of the motion passed on a 33-32 vote, the argument being that a vote of 34-31 is required for a majority, described as an absolute majority, being a majority of all the members of the National Assembly. The judges appeared to reject, with occasional impatience, the argument that a 34-vote majority is required.
Mr. Ramkarran was of course referring to the arguments presented to the CCJ on the matter at which Justice Saunders stated that ‘[n]o one is doubting that an absolute majority is required in this case. The only issue is: what constitutes an absolute majority?’ Justice Wit expressed an interest in hearing the deeper meaning of the requirement to have 34 votes to ‘send the Government home’ but only 33 to ‘govern’. Justice Anderson asserted that the President, Opposition Leader and the courts must obey the Constitution, and if the motion was validly passed, elections ought to have been held within three months. He expressed concern that the local courts did not act expeditiously to enable the constitutional requirements to be followed.
In relation to the contention that a Member of Parliament is obliged to support his/her party’s position in the Assembly, lawyers for the Opposition argued that if this were so, the Government would always obtain the majority on a vote of no confidence. To this, Justice Saunders interjected: ‘If you have to vote for your party, voting on any motion in Parliament could be a charade’.
Conclusion
The recent deliberations at the CCJ on the appointment of GECOM Chairman and the vote of no confidence in the Government must be a source of embarrassment for all Guyanese. The President clearly acted inappropriately by appointing someone from outside of three separate lists of candidates that the Opposition Leader had submitted to him, without giving reasons for doing so. The Opposition Leader is also not without blame. To an objective observer following events in Guyana over the years, he played into the President’s hands by submitting on three separate occasions the names of persons, some of whom were clearly unacceptable because of their close association with the Opposition Leader and/or his party.
As regards the no confidence motion, the refusal to accept that 33 votes out of 65 constitute a majority is to indulge in creative mathematics. In his minority judgment, Justice Rishi Persaud 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’.
