The Guyana Court of Appeal will be delivering its ruling at 3 pm tomorrow on all three of the challenges to the December 21st, 2018 passage of the no-confidence motion against the David Granger-led government.
The announcement was made yesterday afternoon by acting Chancellor Yonette Cummings-Edwards, following the conclusion of oral arguments in the final of those three appeals—that filed by private citizen Compton Reid.
Reid is challenging the validity of the vote cast by government defector Charrandass Persaud who voted in favour of the opposition PPP-sponsored no-confidence motion against the APNU+AFC government.
Hearings in the other two appeals concluded last Thursday before the Chancellor and Justices of Appeal Rishi Persaud and Dawn Gregory who are presiding over the cases. Those appeals concern that filed by Attorney General Basil Williams, who argues that the motion needed an “absolute majority” of 34 and not 33 votes, and that brought by attorney and chartered accountant Christopher Ram, who is asking the court to uphold the passage of the motion
Regarding hearings on applications for conservatory orders and stays of the Chief Justice’s rulings in the matters which were set for tomorrow morning before Justice Persaud, lawyers involved in the appeals have explained that those would no longer be considered by the court since the substantive appeals will be ruled on.
Additionally, they explained that the period for which those interlocutory reliefs were being sought would have by then expired—that being the constitutional 3-month timeframe by which elections ought to have been held following passage of the motion, without extension by Parliament and until the hearing and determination of their appeals. In her January 31st judgment, acting Chief Justice Roxane George-Wiltshire ruled that 33 votes in favour of the motion constituted the needed majority and should have triggered the immediate resignation of the Cabinet, including the President.
She found too, that even though Persaud was a parliamentarian in violation of the Constitution, his vote was nonetheless valid.
It was this ruling that Reid’s attorney, Senior Counsel Neil Boston took particular issue with during presentations before the appellate court yesterday which lasted for close to seven hours.
Reid’s position, as advanced by his lawyer, is that having been determined by the Chief Justice as not qualified in the first place for nomination as a Member of Parliament (MP), Persaud’s vote could not be valid.
Further, Reid (the appellant), is arguing that since Persaud has dual citizenship – as he has pledged allegiance to a foreign power, Canada – he was in violation as an MP also. It is against this background that he wants the court to set aside the order of Speaker of the National Assembly, Dr Barton Scotland, who declared the motion passed.
In her ruling, Justice George had indicated that the questions of election and disqualification of a sitting member of the National Assembly, which Reid’s challenge concerned, ought to be addressed by way of an elections petition, while stating that she hadn’t the jurisdiction to grant him the order he was seeking.
Boston, however, submitted that in this regard, the Chief Justice erred when she failed to consider Article 156 (3) of the Constitution which Persaud contravened by voting against the Party list he represented, while noting that this ought to have invalidated his vote.
Article 156 (3) states, “A member of the National Assembly elected on a list shall be disqualified from being a member of the Assembly, if he or she, in the prescribed manner, declares that he or she will not support the list from which his or name was extracted or, declares that he or she abstain from supporting that list or, declares his or her support for another list.” Further refuting the pronouncement by the Chief Justice that his client’s challenge needed to have been mounted via an elections petition, Boston said that the chief judge failed to consider the alternative position that Persaud did not notify the Speaker or the head of the list to which he (Persaud) belonged, that he would have been voting against that list.
This, Boston said, is a mandatory and not a mere directory prerequisite step which Persaud ought to have exercised ahead of casting his vote. Article 156 (3) Boston noted, is important in determining whether Persaud’s vote in favour of the no-confidence motion breached the Constitution and whether therefore his vote was invalid.
Having regard to that article, “his vote could not be regarded valid,” Boston asserted. In response to a question posed by the Chancellor, Boston said that if Persaud had told the Speaker or the head of his Party list before he voted, of his intentions not to support that list, he there and then would have been disqualified from voting.
“But it was his intention to participate in the proceeding by a back-door method,” the lawyer declared. Counsel contended further that Persaud does not have the “back-door right” and could not surreptitiously cast his vote, with total disregard for the provisions in Article 156 (3).
He said that in keeping with the spirit and tenor of that provision, the Chief Justice failed to direct her mind to the consequence of disqualification for Persaud who voted against his list, and why his vote ought to have been invalidated.
No one voted for Persaud, he said, but rather he belonged to a list, and therefore he alone could not by any back-door method jeopardise an entire process as crucial as a vote on a no-confidence motion.
When asked, Boston told the Chancellor “no crossing of the floor” is permitted at all, adding that “if you are intending to vote against your list, you have to resign.” On this point Boston noted that notice must be given as the Constitution encourages “representative democracy” which is seen as a safe-guard in Article 156 (3).
“There is no such thing as a conscience vote,” Boston said.
According to Boston, Persaud’s vote could not be saved by Article 165 (2) as the Chief Justice held. He said that one, in order to make sense of it, that article needed to be read together with Article 156 (3), and further, it saved the proceedings of the Parliament and not an invalid vote.
Article 165 (2) states, “The Assembly may act notwithstanding any vacancy in its membership (including any vacancy not filled when the Assembly first meets after the commencement of this Constitution or after any dissolution of Parliament) and 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.”
Boston argued that since the Chief Justice ruled that Persaud, because of his dual citizenship which was substantiated by proof of his passport, was disqualified from the point of nomination day back in 2015 when the government took office, then there was no need to file an elections petition.The issue, Boston said, was not Persaud’s election as an MP, but rather that of his vote and for this reason, no elections petition needed to be filed.
Boston further reasoned that if in accordance with Article 155 (1), an MP cannot be qualified to vote/be nominated because of their dual citizenship, he could not see how the Chief Justice could have ruled that Persaud’s vote had been saved by Article 165 (2).
Article 155 (1) (a) states, “No 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.”
Against this background, Boston noted, “it must be an inconsistency for him (Persaud) to be disqualified, but yet be able to vote.”
Attorney Sanjeev Datadin who represents Persaud, however, argued that his client’s vote was valid and so declared by the Speaker of the National Assembly. He argued that contrary to what Boston advanced, Article 165 (2) did in fact save Persaud’s vote as the Chief Justice ruled.
He said too that the challenge mounted by the appellant ought to have been made by way of an elections petition which is to be commenced within 28 days after elections and if this is not done, then the aggrieved party ought to “forever hold their peace.”
According to Datadin, one only ceases to be a member of the National Assembly if they specifically write to the Speaker or head of their Party list and not by one wanting to vote in a particular way.
“This has to be done in writing,” Datadin stressed, adding that if a seat is to be lost in such a manner, then one cannot by implication also lose it on a vote. Contrary to Boston’s view, Datadin said that “crossing the floor” is also permitted.
According to the attorney, his client’s vote cannot be invalidated under Article 165 (2), though he has dual citizenship. He argued that in accordance with this provision, everything which occurs in the House is preserved and one could not sever Persaud’s vote from the rest of the proceedings as Boston advanced.
Datadin said that no court has the power to go behind or beyond the hand of the Speaker who has already declared the vote valid. Similar sentiments were expressed by attorney Anil Nandlall who represents Leader of the Opposition Bharrat Jagdeo, by whom the no-confidence motion was sponsored. Nandlall was asked by the Chancellor whether an election petition still needed to be considered given that Persaud had already been elected to the House since 2015 and whether in those circumstances, there was nothing that the court could do.
Nandlall said that there is nothing that the court could do, especially since it is statute-barred given that the 28 days in which to file an elections petition is late by several years. That, he explained, is the jurisprudential fact of the nature of the law in Guyana in that regard.
As relates the validity of Persaud’s vote, Nandlall said that the court could not turn a blind eye to the fact that Persaud had been voting in the National Assembly since his election in 2015 with no complaint from his government members.
But Solicitor General Nigel Hawke for the State, and attorney Roysdale Forde for Minister of State Joseph Harmon, who was added as a respondent to the proceedings, argued that events pre-December 21st, 2018 ought not to be considered by the court as those events do not make up the case before it.Forde noted that Persaud sat fraudulently in the House and that the case before the court concerns December 21st, 2018 and onwards.The vote from Persaud in favour of the motion tipped the scales 33 to 32 in its favour. Consequently, Scotland ruled that the motion was carried. Government accepted the ruling but subsequently asked him to reconsider and reverse it. However, Scotland declined and indicated that the court should be approached for redress.
Government’s position has since been that the incorrect formula had been utilised on December 21st for calculating the votes to validate passage of the motion, which it contends lacked the needed majority of elected parliamentarians. Its argument has since been 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 not just a simple majority but an absolute majority, which it contends is the majority needed.
Against this background, lawyers for the state have argued that the motion would have required 34 and not 33 votes for it to have been declared carried.
