Cabinet must resign, elections in 3 months – Chief Justice rules

High Court’s no-confidence ruling

…33 is majority
…dual citizens cannot sit in Guyana’s Parliament


By Shemuel Fanfair

Acting Chief Justice (CJ) Roxane George, SC, ruled on Thursday that the No-confidence Motion was validly passed 33-32 in the National Assembly and the Cabinet has to resign in keeping with constitutional provisions of Article 106 and 106 (7) respectively.
The Judge made several determinations based on her constitutional interpretations following three cases filed at the High Court in the wake of the Opposition-filed motion that yielded success when former Member of Parliament (MP) for the Alliance For Change (AFC) Charrandas Persaud voted against the coalition Government. Thursday’s rulings now set the stage for the holding of elections within the constitutionally mandated three-month time which ends on March 21, 2019.
Justice George addressed the cases filed by Attorney General (AG) Basil Williams, who contended that 34 votes were needed to have the no-confidence vote validly passed, while Government supporter Compton Reid was challenging the citizenship status and validity of Persaud’s vote. The third action filed by Attorney and charted accountant Christopher Ram petitioned to have the Administration to resign with all convenient speed and have President David Granger call elections within 90 days.
Attorney General Basil Williams wanted to put a hold on the enforcement of the motion since he was convinced by way of legal arguments that half plus one was needed to successfully pass the motion. With a plethora of legal citations, the Chief Justice observed the position that a majority is better obtained when there is an odd number as in the case of the National Assembly of Guyana having 65 members. The litigant, Williams, proffered a case in the Kenyan Parliament where the half plus one stance was taken by that country’s speaker. According to Madame George, Guyana’s Speaker, Dr Barton Scotland found that motion was carried by majority of 33-32.
No-confidence proceedings valid
The Judge in fact noted that the validity of motion was not doubted when it was carried on December 21, 2018. Moreover, she noted that when concerns were subsequently raised and advanced by Speaker Barton Scotland stood by the resolution and moved that the court would be suitable for interpretation. Citing case law, it was outlined that 27 is both the simple and absolute majority of 52 with comparisons drawn to Guyana’s 65 number. The CJ added that 33 must always be obtained for such a motion’s successful passage.

Govt must resign
Consequent to the declaration that the 33-majority meant that the motion was carried, CJ George observed that the President and the Ministers cannot therefore remain in Government in accordance with Articles 106 (6) and 106 (7) after three months. Article 106 (6) of the Constitution states: “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.”
Meanwhile, 106 (7) goes on to state that, “Notwithstanding its defeat, 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.”
She said too that Government will remain in office until the next President is sworn in but not the Cabinet which advises the President. The Judge added that the resignation of Cabinet does not result in the dissolution of Parliament as this is within the President’s remit to do so and call elections. Moreover, resignation of the Cabinet does not result in the dissolution of Government as Cabinet is a subset of Government.

Lawful and valid
Justice George also determined that the court cannot set aside a motion that is validly passed and noted that Speaker’s ruling in the resolution was “lawful and valid” therefore refusing the AG’s application. At this point, Williams rose immediately and applied for a stay of Justice George’s decisions so that Cabinet and Government would remain in office until the matter’s final determination. Thereafter, his predecessor Anil Nandlall who appeared for the Opposition Leader Bharrat Jagdeo in the high-profile case registered his objection contending that all the AG did was seek the court to answer questions.
“I don’t know that Your Honour would stop the Constitution from taking place,” Nandlall opined, in response to Williams’s argument that there would be “chaos” if the Government would immediately demit office and stop governing.

Justice George opined that the AG’s contentions should be taken to the Appeal Court since she did not see how a stay could be granted in relation to answering questions.
The Judge had earlier recalled that the proceedings of the vote were validly passed as the matter was debated then voted upon. Attorney Anil Nandlall welcomed Thursday’s ruling, saying that Cabinet should have effectively resigned upon the passage of the December 21, 2018 vote.
“There is no Cabinet in force in Guyana currently and that is very important… if they are illegal, those are issues we will have to take into account and address,” the People’s Progressive Party/Civic MP told members of the media.

Dual citizens cannot sit in Guyana’s Parliament
Another landmark interpretation for which the Speaker will be advised relates to MPs having dual citizenship. Justice George pronounced on the case filed by Compton Reid. The Judge refused the majority of the declarations that Reid sought based on her ruling that she had no jurisdiction to hear challenges to Charrandas Persaud’s election in 2015 since the applicant would have had to file an elections petition within 28 days of that elections. On this ground, she could not pronounce on validity challenges.
Persaud was elected as an MP following his name being included on the elections list for the A Partnership for National Unity/Alliance For Change (APNU/AFC) party. Justice George said the court has jurisdiction to comment on the dual citizenship matter, saying Persaud is indeed a dual citizen from the evidence provided.
She noted that the Constitution was very clear about dual citizenship status. In fact, Article 155(1) of the Constitution states that: “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 acknowledgement of allegiance, obedience or adherence to a foreign power or state…”
It was stated that to be qualified to be elected to the National Assembly, one must be 18 years old and Guyanese and it was established that Charrandas Persaud is a Guyanese citizen by birth. She highlighted that the former MP would have sworn allegiance to Canada to receive a passport and citing case law, stated that a renewal of a passport is a renewal of that allegiance. She noted that the holding of a passport has far reaching consequences. The Judge however noted that there is no evidence that Persaud has renounced Guyanese or Canadian citizenship.
The evidence is that in order to be become a Canadian citizen one has to take an oath and bear allegiance to Queen Elizabeth II of Canada, her heirs and that laws of that country. Guyana discontinued such an allegiance in February 1970 when it became a Republic.
According to the CJ, by swearing allegiance to another state, a dual citizen is not qualified to be elected to serve in the National Assembly. This, she noted, is applicable to the current MPs who hold dual citizenship. It was also observed by the CJ that even though it was unconstitutional to be a dual citizen and serve in the National Assembly, the voting by Persaud did not invalidate the no-confidence resolution. She further noted that if he had voted against the motion, there would not have been any dispute.
Attorney Sanjeev Datadin appeared for Charrandas Persaud while Rafiq Khan, SC, appeared for the House Speaker, Speaker Barton Scotland. Anil Nandlall appeared for Opposition Leader Bharrat Jagdeo.
The Attorney General has signalled his intention to mount challenges in the Appellate Court.