AG asks court to strike out application seeking Cabinet’s resignation

Attorney General Basil Williams is seeking to have the High Court strike out an application filed by his predecessor, Anil Nandlall, to compel the David Granger-led coalition Cabinet to stop meeting and resign.
Nandlall filed the Fixed Date Application (FDA) on Monday last, asking for an order compelling the Cabinet, including the President, to resign consequent upon the Government being defeated by the vote of a no-confidence on December 21, 2018, which is in accordance with Article 106 (6) of the Guyana Constitution.
He is also asking for a Conservatory Order or an order restraining the Cabinet, inclusive of the President, from meeting, making decisions as, or performing the functions of Cabinet consequent of the successful passage of the motion as outlined in the Constitution.
However, in a counter application, AG Williams wants the court to throw out the FDA.
According to the court document, the AG is seeking an order from the court, striking out the Fixed Date Application filed by Nandlall, saying it is “an abuse of the process of the court”. He also wants a declaration that the court should not exercise its jurisdiction to grant the orders sought in the FDA.
Williams argued that the FDA is an abuse of the process of the court and an affront to the doctrine of stare decisis or rule of precedent, and as such the court ought not to grant the orders asked for by Nandlall. He pointed out that those orders would require the court to make orders which the Caribbean Court of Justice (CCJ), being the highest court, ruled on already.
“The court is being asked to adjudicate on an issue that the final court, the CCJ, has pronounced upon, and, as a consequence, the point is moot and clearly academic and a wanton abuse of the process of this Honourable Court,” the AG said in one of his grounds.
Referring to the CCJ ruling on the No-Confidence Motion cases, Williams pointed out that one of the proposed consequential orders was for the President and the Cabinet to immediately resign and vacate office but the regional court “refused to make such an order and clearly outlined that the Cabinet and President remain in office but on a different footing in the nature of a caretaker Government”.
The Trinidad-based Court had opined: “It is important, however, that the Court makes this point. In mandating that the Government shall remain in office notwithstanding its defeat and the resignation of the President and the Cabinet, Article 106 envisages that the tenure in office of the Cabinet, including the President, after the Government’s defeat, is on a different footing from that which existed prior to the vote of no confidence. Chancellor Cummings-Edwards, citing Hogg, the Canadian constitutional expert, was right to note that: By convention, the Government is expected to behave during this interim period as a caretaker and so restrain the exercise of its legal authority. It is this caretaker or interim role that explains the three-month deadline, in the first instance that the Article lays down, in principle, for the holding of the fresh elections.”
To this end, AG Williams posited that “…it is in the Public Interest and a matter of Public Policy that the Fixed Date Application be struck out as being an abuse of the process of the jurisdiction of the court.”
The People’s Progressive Party (PPP) Opposition has been contending that Guyana is in a constitutional crisis as the Government continues to delay the hosting of early elections, which was triggered by the December passage of the NCM.
According to Article 106 (7), “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”.
This means elections were to be held since March 21, 2019. However, with the legal challenges which ensued, that timeline was on pause but was subsequently reinstated after the July 18, 2019, CCJ ruling, which validated the passage of the motion.
Against this backdrop, the Opposition was pushing for a September 18, 2019, polling day. But President Granger had insisted that he cannot set a date without first being advised by the Guyana Elections Commission (GECOM) on its preparedness to host General and Regional Elections.
GECOM had come under heavy criticism for also deliberately delaying the elections by going ahead with the controversial House-to-House Registration. The constitutionality of this exercise was then challenged in court.
In fact, Chief Justice Roxane George earlier this month ruled that the conduct of House-to-House is not unconstitutional or illegal. However, she noted that GECOM cannot operate as it would in a normal elections cycle. Given that the NCM triggered early elections, the Chief Justice had stated that there are other methods that can be used to sanitise the voters’ list in a timely manner such as Claims and Objections.
She had also ruled that it would be unconstitutional for GECOM to remove qualified persons already on the voters’ list since the House-to-House exercise was aimed at creating a new National Register of Registrants (NRR) Database, which the Opposition said would have disenfranchised thousands of Guyanese.
Nevertheless, the Elections Commission has since scrapped the House-to-House Registration, which had recorded over 300,000 new registrants, and is looking to merge the new data obtained with the existing NRR database – something which the Opposition is against.