Dear Editor,
On January 25, 2019, Stabroek News published a letter captioned `Democratic trees bloomed only a short while after passage of no-confidence motion’. The authors were Mr. Jailall Kissoon and Mr. Vibert Parvatan, former government ministers in the Hoyte administration. At age 18, I served as special assistant to President Hoyte. I therefore know these men very well. Attorney Jailall Kissoon was one of my mentors. As a young member of the PNCR youth arm, he counseled me on Guyana’s history, politics, laws and the democratic ethos Mr. Hoyte cultivated. I’ll be forever grateful.
Unfortunately, the conclusions in the letter regarding the December 21 no confidence vote in Parliament represent an uninformed departure from the democratic ethos and the rule of law. This must not be allowed to contend unchallenged. I therefore correct the record as follows.
1. The erstwhile ministers claimed that the motion was duly carried and is lawful because the vote was confirmed by the Clerk, pronounced on by the Speaker and, the Prime Minister conceded that the No-confidence Motion was legally passed. Prime Minister Moses Nagamootoo is not the Head of State of Guyana. Moreover, Mr. Nagamootoo’s comments in parliament were contemporaneous and premised on the presumption that the vote was legitimate. Thereafter, the government concluded that the vote was unconstitutional and decided to challenge its legality in court. This is consistent with the rule of law. To dispute or impugn the government’s right to seek judicial review is undemocratic.
2. These elder statesmen claimed that “There is no ambiguity in stating that 33 is greater than 32,” and that the known 33/32 figures have guided the business and decisions in the Assembly over many years.” This is false. As former parliamentarians, they ought to know that the constitution requires the following majorities in the legislative process. (1) Simple majority. This is a majority of members present. This is required for passage of ordinary legislation. (2) Absolute majority: This means a majority of all 65 members of Parliament, i.e., half plus one. Half of 65 is 32.5. Since there is no .5 of a person, an absolute majority therefore constitutes 33+ 1 = 34. Legislation like the no confidence vote or amendments to certain parts of the constitution require such a majority, and (3) Two thirds majority: This is 2/3 of 65, which is 44, applying the latter principle. This is required to alter major provisions in the constitution.
3. Guyana’s highest court, the Carib-bean Court of Justice (CCJ) has already upheld varying majorities. In his judgment in no other case but the Jagdeo “third term” case: Cedric Richardson vs The Attorney General ([2018] CCJ-17-AJ), then Chief Justice of the Court, Sir Dennis Byron, defined the various entrenchment majorities in paragraphs 6-8.
4.Ministers Kissoon and Parvatan posited that the “consequence of the no confidence vote is captured by Article 106 (6) of the Constitution, which states: “(6) The Cabinet including the President shall resign if the Government is defeated by the vote of a majority of all the elected members of the National Assembly on a vote of confidence.” I reject this selective representation of our constitution. Article 106 (7) which was omitted states that, “the Government shall remain in office and shall hold an election within three months, or such longer period as the National Assembly shall by resolution supported by not less than two-thirds of the votes of all the elected members of the National Assembly determine and shall resign after the President takes the oath of office following the election.”
5. The former ministers disregarded Charrandass Persaud’s fraudulent declaration of oath and flagrant violation of Article 155.1 (a) of the constitution which prohibits persons who swore allegiance to a foreign power or who hold dual citizenship, from sitting in parliament. They whimsically and falsely claimed this fundamental breach is negated by Article 165(2) of the Constitution which states inter alia: “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.”
6.The referenced section in Article 165(2) has no relevance to or bearing on an illegal act by a member. The provision in fact mandates that notwithstanding any act or participation by or presence of any person who is not entitled to be present at, or participate in, the proceedings of the Assembly, such act, presence or participation shall not invalidate the “proceedings” or business of the Assembly. It has nothing to do with the validity of an action by someone who is not entitled to be in the Assembly. To contend otherwise is to be misinformed. Effectively, these two elder statesmen are arguing that if a four year old child runs into Parliament, sits in an MP’s seat and yells says yes during a vote on a question, that child’s vote must be deemed valid.
7 Ministers Kissoon and Parvatan also observed that several government ministers hold dual citizenship like Charrandass Persaud, hence if the government’s case is successful and the court nullifies Persaud’s vote “what is the legal consequence” of the volume of laws previously passed, for which Persaud voted? The answer is simple. The matter before the court expressly and specifically challenges Charrandass Persaud’s legitimacy and eligibility for election to Parliament. Consequently, nullification of his election pursuant to said challenge only invalidates his election and vote.
8.Moreover, in instances where courts nullify extra-constitutional or illegal acts by state actors, the “doctrine of necessity” is invoked to restore public order and/or to preserve continuity or necessity of governance. Precedents for this abounds. The “doctrine of necessity” was invoked by the Supreme Court of Grenada in 1985 to validate the trial of coup leaders who murdered then Prime Minister Maurice Bishop. The doctrine was also invoked by the Guyana Supreme Court in the 1997 Esther Perreira v Attorney General of Guyana matter. In the instant matter, Justice Claudette Singh nullified the 1997 election of the PPP/C government, but granted constitutionality to the actions thereof out of necessity of governance.
Yours faithfully,
Rickford Burke
President
Caribbean Guyana Institute for
Democracy (CGID)
