The Caribbean Court of Justice (CCJ) erred when it declined to issue orders compelling Cabinet to resign and instead trusted that its guidance, and the directions of the Constitution would be obeyed by members of government, according to attorney Kamal Ramkarran.
His argument is contained in submissions filed on behalf of attorney Anil Nandlall, who has applied to the High Court to compel Cabinet to resign following the successful December 21st, 2018 no-confidence vote.
Nandlall’s application asks the court to order Cabinet, including the President, to resign, or, if those resignations are determined to have been automatic, to give effect to said automatic resignations. The court has also been asked for a conservatory order restricting Cabinet from meeting while the application is live.
Attorney General (AG) Basil Williams, S.C., has applied to strike out Nandlall’s application on the grounds that it is an abuse of process, and an affront to the rule of precedent. The AG’s grounds are that the CCJ already declined to make the orders sought, and had said “…Article 106 envisages that the tenure in office of the Cabinet…after the Government’s defeat, is on a different footing from that which existed prior to the vote of no confidence.”
The parties were asked to file submissions by September 23rd and a hearing has been set for September 30th.
In submissions filed yesterday, Ramkarran is arguing that in the circumstances, Article 106(6) requires Cabinet’s resignation, meaning that it ought to have ceased to exist and function.
He also expresses the view that if Cabinet does not resign, Article 106 (6) is rendered meaningless.
In response to the AG’s application to strike out, Ramkarran is arguing that the CCJ’s decision was based on the validity of the resolution that the National Assembly had no confidence in the government, after which it handed down its judgment, and invited the parties to suggest what consequential orders should be made. He also said that when it was suggested that the CCJ direct Cabinet to resign, the court “omitted, rather than refused to make the order.”
Seeking to bolster this argument, Ramkarran further stated that the CCJ did not consider, refuse and provide reasons for a refusal to grant orders compelling Cabinet to resign. Instead, he continued, it expected that the Constitution would have been followed. As a result, he said, it cannot be said that the court determined that an order directing Cabinet to resign could not be properly made as a matter of law.
Ramkarran, is also contending that since an application for an order compelling Cabinet to resign was never, on the basis of arguments by both sides, the subject of adjudication by any court, it is inaccurate to say that issue is res judicata (already judged, or settled) as Williams has argued. Nor can it be, he continues, an abuse of process to now seek an order to compel Cabinet to adhere to the Constitution, since this was not previously the subject of previous litigation.
For these and other reasons, he said, the AG’s application to strike out should be “given very short shrift.”
In elucidation of this argument, Ramkarran noted that when the issue engaged the attention of the High Court in Christopher Ram v. AG earlier this year, it was addressed as an ancillary issue to a declaration being sought in that case.
Ramkarran had also represented Ram in that case, wherein he asked the court for a declaration that the no-confidence motion passed against government required the resignation of Cabinet, including the President “with all convenient speed.”
However, Chief Justice Roxane George had said that Article 106(6) clearly requires these resignations, so that the real issue was when the resignations were to take effect.
The Chief Justice then proceeded to state that “…the resignations…take effect immediate effect following the defeat of Government on a vote of confidence by a majority of all the elected members of the National Assembly.” The consequence of this finding, as stated by the Chief Justice, was that “…Cabinet must be taken to have resigned with effect from the evening of December 21 2018, and all functions or duties in any law to be performed specifically by Cabinet must be ceased from that time.”
Ramkarran notes in his submissions that Williams, in support of his argument that the issue was adjudicated by the CCJ, “places much reliance” on the portion of its judgment which states that “notwithstanding its defeat, and the resignation of the President and Cabinet, Article 106 envisages that the tenure in office of the Cabinet, including the President, after the Government’s defeat, is on a different footing from that which existed prior to the vote of no confidence.” Ramkarran is seeking to counter this argument by asserting that the AG’s reliance on this passage is rooted in an erroneous conflation of Cabinet and Government, offering that “while the Government is of caretaker or interim status, it is also by the clear words of the Constitution, a Government without a Cabinet, which determines the parameters of its interim or caretaker status.”
Ramkarran says that if that paragraph is read in its proper context, with the rest of the judgment, and in consonance with Article 106(6), whose language “provides… that Cabinet…must resign upon the passage of a resolution…”, there is no question of what is now required of it.
Finally, having noted the CCJ’s reluctance to make coercive orders against the Executive, Ramkarran alluded to authority supporting the court’s power to make such orders.
