Attorneys for Christopher Ram yesterday filed an application with the Caribbean Court of Justice (CCJ) seeking special leave to appeal the majority decision of the Guyana Court of Appeal (GCA) to invalidate last December’s no-confidence vote against government.
On behalf of Ram, attorneys-at-law Kamal Ramkarran and Devindra Kissoon have asked that the March 25th, 2019 application be urgently heard and determined within seven days, with the abridgment of all timelines as is necessary in order to prevent the “violation of the Constitution” and “the threat to democracy and adherence to the rule of law” that follow from that violation.
In addition to seeking to have the majority decision of the GCA either reversed or set aside, Ram has asked the court to, among other things, validate the December 21st passage of the motion by the National Assembly and to order that President David Granger and the Guyana Elections Commission (GECOM) ensure that elections are held no later than April 29th, 2019.
In the Notice of Application, the named respondents are the Attorney General Basil Williams, the Leader of the Opposition Bharrat Jagdeo and APNU General Secretary Joseph Harmon. The application also requests that President Granger and GECOM be joined as parties to the proceedings in order to ensure an effective remedy in the action.
Ram had been one of the respondents in the appeals brought by government to the GCA after acting Chief Justice Roxane George-Wiltshire found on an application in his name that the APNU+AFC Cabinet, including the President, stood resigned upon the passage of the PPP/C-sponsored motion on December 21st.
By majority decision, the GCA last Friday overturned the acting Chief Justice’s finding that the motion was validly passed with 33 votes in the 65-member National Assem-bly, saying that the correct mathematical formula for finding the “absolute” majority was not used.
Chancellor of the Judiciary (ag) Yonette Cummings-Edwards and appellate judge Dawn Gregory both agreed that 34 votes were required to guarantee the motion’s successful passage, while appellate judge Rishi Persaud dissented and endorsed the Chief Justice’s ruling.
The rulings were handed down one day after the three-month deadline for the holding of elections attendant to the passage of the motion elapsed.
Ram’s is the first application made to the CCJ. Jagdeo’s attorney, Anil Nandlall, has said that he will be filing an application on behalf of his client by tomorrow.
In Ram’s application, it is being argued that the GCA erred in finding that the passage of the motion required an absolute majority in order to validly and lawfully pass in the National Assembly.
‘Ordinary meaning’
It is also being argued that errors were made by the GCA in finding that the vote of 33 of the 65 members of the National Assembly was not the vote of a majority of all the elected members of the National Assembly; in failing to interpret sub-article 106(6) of the Constitu-tion in accordance with the provisions of articles 1 and 9 of the Constitution and in accordance with the ordinary grammatical meaning of the words used in sub-article 106(6) of the Consti-tution on the proper majority required; and in failing to consider or properly consider and to find that in the context of the Constitution as a whole, the phrase “the vote of a majority of all the elected members of the National Assembly” has a technical meaning which accords with its ordinary grammatical meaning and means that the affirmative vote of 33 was the vote of the majority.
In his Affidavit in Support of the Application, Ram, after noting the widespread publicity the matter has attracted, said that between December 22nd, 2018 and March 21st, 2019, the President neither fixed a date for elections to be held within that period nor did he propose a date up to which time an extension of the three-month period would be required, “thus violating sub articles 106(6) and (7) of the Constitution, since the three-month period within which elections were to be held or the time extended ended before the ruling of the Court of Appeal on 22 March 2019.”
He also said that between November 15th, 2018, when the motion was lodged in the National Assembly giving rise to the possibility that elections could be necessary if the motion succeeded, and March 22nd, 2019, when the Court of Appeal ruled, GECOM took no steps which are known by the public to comply with the provisions of sub-article 162(1) of the Constitution. The provision speaks about the holding of elections.
“In fact, during the period from 19 November 2018 through to 22 January 2019, no meetings of the Commissioners of GECOM were held. Moreover, from January 22, 2019 to present, despite convening meetings, GECOM has not presented a plan for holding of elections or taken any steps in furtherance of elections in order to be compliant with the Constitution,” he posited before noting that instead of fulfilling their respective constitutional duties and responsibilities, “the President and GECOM apparently declined to concern themselves with the timelines set out in the Constitution….”
Ram made reference to the various written correspondence between Granger and the GECOM Chairman James Patterson and comments made by Harmon that there was no “constitutional crisis” arising from the situation.
“Contrary to what was happening, as shown by the correspondence and public statements, compliance with the provisions of sub-article 162(1) of the Constitution required, among other things, that the Elections Commission issue such instructions and take such action as appeared to it necessary or expedient to ensure impartiality, fairness and compliance with the Constitution or of any Act of Parliament on the part of persons exercising powers or performing duties connected with or relating to the general direction and supervision over the registration of electors and the administrative conduct of elections of members of the National Assembly,” he said.
Ram insisted that the current voters’ list, which was used in last November’s local government elections and which is valid until April 30th, 2019, can still be used to complete the constitutionally-required general and regional elections.
‘In violation’
On the matter of the urgency in hearing his application, Ram pointed out that if the Court reverses the decision of the Court of Appeal, the government will be governing in violation of the Constitution and that “undermines democracy and adherence to the rule of law in Guyana.”
He said that despite the fact that Cabinet was deemed to have resigned, the President and Ministers continued to unlawfully perform governmental functions, in essence benefitting from their illegality, making decisions for the people of Guyana when the duly elected representatives of the people voted to remove the President and Ministers. “This is likely to continue indefinitely if the matter is detained and a serious miscarriage of justice will result if the decision of the Court of Appeal was incorrect,” he stressed.
He said that Section 7 of the Elections Law (Amendment) Act, as amended by the Local Authorities (Elections) (Amendment) Act 10 of 2018, requires that the current voters’ list be revised on April 30th, 2019, which if allowed to occur would allow a government ruling in violation of the Constitution to continue in office for an indeterminate period.
“This, together with the effect of Section 9 of the Representation of the People Act, which requires a list of candidates to be gazetted 32 days prior to election, means that the Court ought to decide this matter before March 28, 2019, and issue the orders and directions sought herein so as to ensure that elections are held on or before April 30, 2019, or if decided later than March 28, 2019, abridge the time pursuant to Section 5 of the Representation of the People Act for the gazetting of the list, so that in any event elections are held on or before April 30,2019,” he said.
Ram also argued that in order for there to be an effective remedy, the President and GECOM need to be joined in the proceedings as necessary parties. “If there are cogent reasons why no steps were taken in the three month period within which elections were required to be held by sub-article 106(7) of the Constitution, then they are best placed to proffer those reasons to the Court,” he said.
Further, he noted that having regard to the steps that were taken to avoid compliance with sub-article 106(7) of the Constitution, it is his fear and he believes the fear of thousands of Guyanese that unless the Court, as the guardian of the Constitution, grants effective orders which can ensure compliance with the Constitution by the President and GECOM in holding elections forthwith, Guyana’s democracy and adherence to the rule of law will be severely threatened without the prospect of a solution.
He said, too, that if the court does not act with regard to elections, any remedy would be an “empty remedy.”
As a result, Ram has asked that the Court order that the GCA decision that the motion was not validly and lawfully passed be reversed and/or set aside; that it be declared that the National Assembly of Guyana properly, validly and lawfully passed a motion on a vote of confidence in which the Government was defeated; that it be declared that the passage of the motion required that national and regional elections in Guyana should have been held no later than March 21, 2019, in the absence of an extension granted by no less than two-thirds of the elected members of the National Assembly; ; that no elections having been held within three months of December 21st, 2018 and no resolution passed by two-thirds majority of the National Assembly for an extension is in violation of the Constitution; that from December 21st, 2018 to March 21st, 2019, the Government of Guyana was a government with limited power performing caretaker functions for the purpose of holding elections; that it be declared that the Cabinet of Guyana was deemed to have resigned on December 21st, 2018 and thereafter could lawfully perform no functions in any form, whether by plenary or otherwise; and that the president and GECOM, inclusive of all necessary officers and agents required to act on their behalf, be compelled to fulfil their respective constitutional duties to carry out national and regional elections forthwith and to hold such elections no later than April 29th, 2019.
