Last year will certainly go down as one of the most challenging years for democracy and the rule of law in Guyana. On 21 December 2018, 33 MPs voted in favour of a motion of no confidence in the Government. As a consequence, the Speaker of the National Assembly ruled that the vote was carried since 33 MPs represent a majority in the 65-member Assembly. The Government initially accepted the ruling which meant that national and regional elections were to have taken place by 21 March 2019 or such later date as approved by the Assembly by two-thirds of its membership. However, disagreement soon surfaced as to whether the vote was carried, some arguing that the required number should be 34 and not 33. The Government bought the argument and requested the Speaker to review his ruling. What followed was a long and extended court battle to resolve the matter.
Today’s article highlights the significant events that took place in 2019 relative to the no confidence vote as well as other related matters. It has been compiled, as a form of consolidation, from the series of articles we had carried during the course of the year on the subject.
Speaker’s reaffirmation of his earlier ruling
We begin with 3 January 2019. On this day, the Assembly met and discussed the consequences of the successful passage of the no confidence vote. The Opposition had boycotted the event, contending that the sitting was unconstitutional. In reaffirming his earlier ruling, the Speaker stated that although he had very wide authority to reverse it, he would be unable to do so without compelling reasons. He emphasised that simply choosing one position in place of an earlier one did not meet that requirement. He concluded as follows:
The Speaker on this occasion and without more, declines the invitation to act in reversal. Full, final and complete settlement of these issues by a Court of competent jurisdiction will place beyond doubt any question which may exist and serve to give guidance to the Speaker and to the National Assembly for the future.
The Government announced that it would appeal the Speaker’s ruling.
Request for judicial review on the eligibility of an MP
The following day, through a private citizen, the Government sought the intervention of the court to invalid the vote of one MP who was the holder of foreign passport and who would have sworn allegiance to another country. The concerned MP, although a member of the ruling APNU+AFC coalition, was one of the 33 MPs who had voted with the Opposition in favour of the no confidence motion.
Meeting with the President and the Opposition Leader
On 9 January 2019, the President and the Opposition Leader met and discussed the way forward. They agreed to the following: (i) holding of the general and regional elections, subject to the readiness of GECOM; (ii) Government would remain in office to ensure continuity in the delivery of public services; (iii) the court’s intervention at the request of the Government would continue in order to bring about clarity and resolution on the two issues raised; (iv) Parliament would continue to function in the normal way, pending the conclusion of the legal proceedings; and (v) two representatives (one from each side) would liaise with GECOM to determine its readiness for holding elections.
Chief Justice’s ruling
The Chief Justice heard the Government’s appeal of the Speaker’s ruling as well as the petition on dual citizenship. On 31 January 2019, she ruled that: (i) the vote of no confidence was valid since at least 33 out of 65 MPs constitute a majority, and not 34; (ii) the holding of dual citizenship by an MP, although unconstitutional, does not invalidate the actions of that MP; (iii) the President and the Cabinet should have resigned immediately after the vote; and (iv) the Government should remain in office until elections are held.
The Government announced its intention to appeal the Chief Justice’s ruling.
Statements by the diplomatic missions and others
The UN and EU offices in Guyana issued separate statements calling on the Government to respect the Chief Justice’s ruling and set a date for elections consistent with the constitutional requirements. The Private Sector Commission, the Guyana Bar Association and a number of civil society organisations also added their voices to the call.
The President responded by insisting that the Government would continue to function as normal until the entire judicial review process to challenge the Chief Justice’s ruling is exhausted to the fullest.
GECOM’s readiness to hold elections
GECOM indicated that the earliest it could hold elections was July 2019 on the assumption that: (i) an agreement was reached to use the current voters’ list as amended by the results of claims and objections; and (ii) the planned house-to-house registration is delayed until after elections. The Commissioners were, however, deadlocked over whether the current voters’ list as amended, could be used; or a full-fledged house-to-house registration should first take place. The latter would take approximately nine months to complete.
Second meeting with the President and the Opposition Leader
On 7 March 2019, the President and the Opposition Leader met to discuss the National Assembly’s constitutional role in the present situation; and GECOM’s readiness and requirement for funding to enable it to conduct the elections. The Opposition Leader had submitted a list of proposals, including the setting of the date for not later than 30 April 2019. He had also indicated that if his proposals were acceptable, the Opposition would lend support to secure the votes of two-thirds of all the elected MPs to extend the 21 March 2019 deadline for holding elections.
The outcome of the meeting was, however, not fruitful in that the deliberations did not get past the first item on the agenda which was to agree on a date for the elections. The President insisted that he would not consider a date unless GECOM indicated its readiness.
Meeting with GECOM
On 8 March 2019, the President met with GECOM commissioners. However, as in the case of his meeting with the Opposition Leader, there was no fruitful outcome, as the Commissioners stuck to their entrenched positions.
Second statements by the diplomatic missions and others
The British High Commissioner referred to the supremacy of the Constitution and the requirement for elections to be held within three months. He considered that the only way to resolve the issue was through consensus among the political leaders. The new U.S. Ambassador added her voice by stating that the United States continued to ‘encourage genuinely free and fair elections, freedom of speech, multi-party representation, and a constitutional judiciary process…’
Representatives of civil society organisations issued another statement indicating that the President’s deferral of responsibility to GECOM for naming a date for elections, has no constitutional support and was therefore unacceptable. They expressed the view that this action ‘revives the misgivings and insecurities generated by the controversial selection of the current Chair of a polarized GECOM who now has a casting vote on when elections will be held’, adding that the Constitution mandates the Commission to always be in a state of readiness to hold elections within three months. Referring to the President’s decision to ask GECOM to go back to the ‘drawing board’ to resolve their differences, the representatives argued that, since the Commission comprises persons chosen by the two major parties, this action appeared intended more to evade than resolve the issue that the two political leaders could not resolve.
President’s letter to GECOM
The President wrote to the GECOM Chair requesting him to submit the Commission’s workplans and programmes as well as an outline of its financial needs to enable him (the President) to assess GECOM’s readiness to hold elections and hence to proclaim a date for such elections. The Chair responded that the earliest date that elections could be held was November 2019 following the conduct of house-to-house registration of voters. He indicated that GECOM would need an additional $3.5 billion to finance the cost of the elections.
On 20 March 2019, the day before the constitutional deadline for holding such elections was due to expire, the Office of the Presidency dispatched a letter to the Opposition Leader indicating the President would shortly proclaim a date for the elections ‘within the framework provided by the Chairman of the Guyana Elections Commission’. On the following day, the Opposition Leader responded by stating that it was ‘totally unacceptable’ for elections to be held on a date proposed by GECOM and that as of midnight of 21 March 2019, the Government became ‘illegal’.
Court of Appeal ruling
On 22 March 2019, the Court of Appeal handed down its decision based on the Government’s appeal of the Chief Justice’s ruling of 31 January 2019. By majority decision 2 to 1, the Court ruled that the no confidence vote of 21 December 2018 was not validly passed since votes of 34 MPs were required, and not 33.
The court accepted the arguments of the Government’s lawyers that an ‘absolute’ majority was needed while at the same time acknowledging that 33 votes constitute a ‘simple’ majority. The lawyers contended that in a 65-seat Assembly, one-half of the Assembly is 32.5. Since there cannot be a fraction of an MP, one-half is 33, and ‘in accordance with the practice and the application of the meaning of majority, one has to be added to calculate a majority’.
On the other hand, the Opposition lawyers and others, argued that Article 106(7) refers to ‘a vote of a majority of all elected members’ and not ‘one-half of the Assembly’; there is a distinction between the two; and the votes of at least 33 MPs constitute a majority. They also contended that the word ‘absolute’ is not to be found in Article 106(7).
The dissenting opinion was given by Justice Rishi Persaud who endorsed the ruling of the Chief Justice on the matter. He stated that a majority of 33 has long been used by the Assembly without complaint and that Article 106(6) does not provide for a mathematical formula to be used in determining a majority. He also referred to Articles 168(2) and 168(3) which provides that in the event of a tie in the votes, the motion is defeated; and stated that ‘[t]he inferences are clear.’ Justice Persaud further 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’.
To be continued –
