On 18 June 2019, the Caribbean Court of Justice (CCJ) handed down its decisions on two matters that were referred to it for a ruling. The first relates to the validity of the 21 December 2018 vote of no confidence in the Government. The Speaker of the National Assembly had ruled that the vote was successfully carried since 33 out of 65 members constituting the Assembly supported the motion. The intervention of the High Court was sought on the grounds that (i) one Member of Parliament (MP) voting in favour of the motion is a dual citizen; (ii) his vote was invalid because the Constitution prohibits a person having dual citizenship to be an MP; and (iii) by virtue of the invalidity of his vote, the no confidence motion failed.
The Chief Justice, who presided over the first appeal, held that the no confidence vote was validly carried. The intervention of the Guyana Court of Appeal was then sought, and by majority decision, the court held that the approval of 34 MPs was needed, and not 33. The matter found its way to the CCJ which overturned the Court of Appeal’s ruling and re-instated that of the Chief Justice.
The second decision relates to the appointment of the Chairman of the Guyana Elections Commission (GECOM) which the lower courts in Guyana found to be in order. The CCJ, however, ruled that the procedure used to appoint the Chairman was flawed and unconstitutional.
Last Monday, the CCJ heard submissions regarding the consequential orders to be issued to give effect to its two rulings. After 90 minutes into the hearings at which the court was told that no agreement had been reached on the way forward, the CCJ requested that written submissions be made to it by 1 July 2019 after which it will issue its consequential orders on 12 July 2019. The court expressed its disappointment at the lack of expedition in the handling of the matters which are of ‘the highest constitutional significance’. It made it clear that GECOM is without a Chairman in view of the court’s earlier ruling. This prompted the Chairman to submit his resignation to the President.
In today’s article, we highlight the main points of the CCJ’s ruling on the 21 December 2018 vote of no confidence in the Government, as presented by Justice Adrian Saunders, the President of the CCJ.
Legal issues involved
Having reviewed the facts of the case and the submissions and arguments presented to it, the CCJ considered the following legal issues to have arisen and for which it sought to provide answers:
(a) Does Article 106(6) of the Constitution apply to “no confidence motions”? Is
there a difference between “a vote of confidence” and “a vote of no
confidence”?
(b) What is the majority necessary for the passage of a no confidence motion?
(c) Does the Court have jurisdiction to inquire into the issue of the
disqualification of a person from being a member of the National Assembly?
(d) Was the concerned MP precluded from voting in the manner he did in light
of the anti-defection provisions (Art 156(3)) of the Constitution?
(e) Does Article 165(2) of the Constitution preserve the validity of the concerned
MP’s vote?
(f) What consequences attend the answers to the above questions?
Article 106(6) of the Constitution
Article 106(6) requires the Government to resign if it is defeated on a vote of confidence by the votes of a majority of all the elected members of the National Assembly. It has been argued that (i) there is a fundamental difference between a motion of confidence and a motion of no confidence; (ii) the political result of a Government’s defeat on these respective motions drastically differ; and (iii) the consequences set out in Article 106(6), which prescribe that the government must resign if it is defeated on a motion of confidence, are not applicable to those circumstances when the government is defeated on a motion of no confidence. It has been further argued that an Opposition MP cannot table a motion of confidence which has to be done by an MP from the Government’s side.
In the CCJ’s view, to give effect to Article 106(6), the Government must at all times enjoy the confidence of a majority in the National Assembly, and ‘[i]f that confidence is demonstrably lacking, the government collapses’. The CCJ did not share the view that there is a difference between a motion of confidence and a motion of no confidence. It considered the two terms ‘mere linguistic differences denoting different sides of the same coin’ that are subsumed under the broad heading of confidence motions. The CCJ concluded:
In all the circumstances, as all the judges in Guyana have also concluded, we disagree that Article 106(6) is inapplicable to the motion of no confidence that was passed in December 2018. We also do not agree that the Leader of the Opposition is disentitled from moving a motion of no confidence in the government. (Paragraph 22)
Requirements for the passage of a no confidence motion
The CCJ stated that one does not have to study law to appreciate that the word “majority” means the greater of two parts and that it is not difficult to distinguish between a “simple” majority and an “absolute” majority in parliament. According to the judges, the former refers to the majority obtained when the votes of those present and voting are tallied. An absolute majority, on the other hand, refers to a majority of the total number of votes or seats in the Assembly irrespective of the number of members who actually vote. If every member of the Assembly votes “yes” or “no” on a motion, the distinction between “simple” and “absolute” disappears for all practical purposes.
The CCJ further stated that Article 106(6) refers to ‘a majority of all the elected members of the National Assembly’ which is in effect an absolute majority. It went on to elaborate as follows. If, for example, only 62 members of the Assembly had voted on the December 2018 motion, with 32 voting in favour of the motion and 30 against, the motion would not have carried although those in favour would have received two more votes than those against. The reason for this is that since the Assembly comprises 65 members it is a majority of 65 (and not a majority of 62) that would have been required.
The CCJ is of the view that the case of Kilman v Speaker of Parliament of Vanuatu is not applicable to the Guyana situation since the Vanuatu parliament consists of 52 members, an even number. Therefore, in Kilman, it would be entirely appropriate to divide the total membership by two, then add one to arrive at “the greater of two parts”. Similarly, the court found the Anguillan case of Hughes v Rogers not to be of ‘relevance to the question at hand’. Referring to the comments of an American judge, the CCJ considered that the “50% plus one rule” leads to illogical results when it is applied to odd numbers, a view that was also expressed by Justice Rishi Persaud in his minority ruling by the Guyana Court of Appeal.
The CCJ concluded that the Chief Justice was right when she adjudged that a majority from among 65 members is a minimum of 33.
Disqualification of a person from being an MP
The CCJ referred to Section 155(1)(a) of the Constitution which states that ‘[n]o person shall be qualified for election as a member of the National Assembly who – (a) is, by virtue of his own act, under any acknowledgment of allegiance, obedience or adherence to a foreign power or state…’. The concerned MP had sworn an oath of allegiance to Canada in order to become a citizen of that country. He was therefore not qualified to be elected as a member of the National Assembly. The CCJ pointed out that there were other elected members who were citizens of other countries when they had their names placed on their party’s List on nomination day in 2015. Most or all of these persons have since resigned or have been removed from the National Assembly, including the concerned MP.
The CCJ noted that historically, disputes over the qualification of members to legislative Assemblies were not triable by the courts. These matters were determined in the Assemblies. While the Guyana Constitution does give the courts the exclusive jurisdiction to determine questions of the qualification of members of the National Assembly, that jurisdiction must be strictly in keeping with provisions laid down by Parliament. Those provisions are to be found in the National Assembly (Validity of Elections) Act which provides for, among others, a petition to be presented to the court within 28 days after the results of the election are announced.
The CCJ expressed the view that:
Assumption by the courts of an “inherent power” to interrogate qualifying and disqualifying criteria in relation to election to the National Assembly will constitute overreach on the part of the judiciary. It will evince a trespass by the courts on the affairs of parliament by disregarding the method and manner by which the Constitution specifically requires the courts to determine such questions… [T]he Court has no jurisdiction to determine matters which must be raised by way of an election petition filed otherwise than as prescribed by Parliament. (Paragraph 38)
The CCJ concluded that ‘the courts of Guyana were right to find that they had no jurisdiction to determine whether the concerned MP’s election was invalid by reason of disqualification’.
Applicability of the anti-defection provisions
The CCJ referred to Article 156(3) of the Constitution which provides for a member of the Assembly elected on a List to cease to be a member, if:
(a) He or she declares in writing to the Speaker or the Representative of the List from which his or her name was extracted that he or she will not support the List from which his or her name was extracted;
(b) He or she declares in writing to the speaker or the Representative of the List from which his or her name was extracted, his or her support of another list;
(c) The Representative of the List from which his or her name was extracted indicates in writing to the Speaker that after meaningful consultation with the Party or the Parties that make up the List that the Party or Parties have lost confidence in that member and the Representative of the List issues a written notice of recall to that member and forwards a copy of that notice to the Speaker.
It has been argued that a member who deliberately omits to notify the Speaker or the Party Representative of his loss of confidence in the List and who votes against the party thereby ensuring the party’s defeat on a motion of confidence, ‘undermines the constitutional system of the proportional representation system and deliberately evades the purpose behind Article 156(3)’. Where a member votes against his party, the effect of Article 156(3) is to disqualify his or her vote. A member must vote along with his or her party unless the party’s whip grants permission for a conscience vote.
The CCJ did not agree with the above interpretation of Article 156(3). It noted that the Constitution makes no distinction between a member’s participation and vote on a motion of confidence and on any other motion, and stated:
Carried to its logical extension, these submissions would mean, among other things, that there is no need for political parties in parliament to employ a parliamentary whip at all, and that proposing a vote on parliamentary motions is meaningless because in each case the result is a foregone conclusion.
Fealty to one’s party cannot override sworn allegiance to the Constitution and to the people of Guyana. Members of parliament, should they so decide, and as long as they are willing to pay the political price, are not to be denied the freedom to vote according to the dictates of their conscience even in a proportional representation system. (Paragraphs 50-51)
The CCJ concluded that there is nothing in the Constitution that prohibits any member of the National Assembly (including a Government MP) from voting against the Government on any particular measure. Such a vote may well cause his/her removal as the member of the Assembly, but his/her vote will still be valid. It cannot be recalled and substituted.
Validity of the concerned MP’s vote
The CCJ referred to Article 165(2) of the Constitution which provides that ‘… the presence or participation of any person not entitled to be present at or to participate in the proceedings of the Assembly shall not invalidate those proceedings’. The CCJ stated that in view of its conclusion of the court’s lack of jurisdiction over the concerned MP’s election, there is no real need to ascertain whether Article 165(2) preserves the validity of his vote on the no confidence motion.
The CCJ concluded as follows:
However, even if the Court had such jurisdiction to declare [the concerned MP’s] election to the Assembly to be void from the outset, we agree with the courts below that Article 165(2) would preserve the validity of his vote. We are therefore of the view that the National Assembly properly passed a motion of no confidence in the Government on 21 December 2019, and that the provisions of Article 106 (6) and (7) referred to above at [3] were accordingly triggered. (Paragraph 55)
Consequences of the answers to the above legal issues
The CCJ agreed to hear further submissions before deciding what consequential orders, if any, should be made in all the circumstances.
On a final note, in his concurring judgment, Justice Wit expressed the view that the lawyers representing the Government’s views worked ‘their legal magic’ in the court below and succeeded in persuading the majority of the Court of Appeal that a majority of a total of 65 seats under Article 106(6) of the Constitution must be 34 against 31 instead of 33 against 32. He also stated:
“I would simply use the words of Justice Potter Steward of the US Supreme Court who, defining obscenity, famously stated: “I know it when I see it.” In the same vein, I know a majority when I see it; if one side has one vote more than the other, that is a majority, a narrow one but still a majority. And no magic is needed”.
