Former Chancellor of the Judiciary, Justice Cecil Kennard, has stated that the Constitution of Guyana is clear in what constitutes a majority, pointing out that there was no mention of an “absolute” majority but a majority of “all elected members of the National Assembly”.
Last Friday, however, the Court of Appeal by a 2:1 majority ruled that the Opposition’s No-confidence Motion was invalid since it needed an “absolute” majority of 34 votes in the National Assembly, and not a “simple” majority of 33, to successfully pass.
However, Justice Kennard posited that nowhere in the Constitution of Guyana were the terms “absolute” or “simple” majority mentioned. In fact, he noted the Constitution only spoke of a majority of all elected members in the National Assembly, which would be 33 of the 65 members.
“The Constitution is clear; it doesn’t say absolute majority. It speaks about majority of all the members of the National Assembly and so, one have to interpret that and insert it in every context… One has to look at the spirit of Constitution and the Constitution says majority (of all members)”.
Article 106 (6) of the Constitution states that “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.”
But after the December 31, 2018 passage of the Opposition-sponsored No-confidence Motion, the coalition Government challenged the validity of the motion and after failing to get the Speaker of the National Assembly, Dr Barton Scotland, to reverse it, they approached the High Court.
However, acting Chief Justice Roxane George in January upheld the passage of the motion, ruling that it was validly passed with the 33 majority. She noted that apart from the fact that the House Speaker had deemed the motion carried by a 33-32 majority, 33 must always be obtained for such a motion’s successful passage.
“In our 65-member National Assembly, a majority of all elected members, in accordance with the principle of ‘one over all rivals combined’, is 33 members,” the Chief Justice reasoned.
According to Justice Kennard, he is in “total agreement” with the Chief Justice’s interpretation.
“There is no question about that; her decision was a very firm one,” the former Chancellor asserted. He added that with the Appeal Court having overturned the High Court’s ruling by a majority dissenting decision, it is now for the Caribbean Court of Justice (CCJ) to have the final say on what the Constitution meant with regards to majority votes on a motion of no confidence.
“But to me when one looks at the Constitution and what it says, does the Constitution use the world absolute, definitely not,” Justice Kennard stressed.
He went on to say that the framers of the Constitution and even those on the Constitutional Reform Commission, which included distinguish individuals such as Ralph Ramkarran and Justice Desiree Bernard, would have known that the words “simple” and “absolute” could have been inserted to qualify a majority. But instead, they stayed away from that and defined that a majority to be of “all the elected members” of the National Assembly, which is 33.
“So you see, one cannot read into the Constitution what is not there; one cannot review the question, when the question (never) arose of whether it’s ‘absolute’ or what not,” Justice Kennard stated.
While appellate Judge, Justice Rishi Persaud, during last week’s ruling dismissed the Government’s appeal and upheld the Chief Justice’s ruling that the motion was validly passed with a 33 majority, his two colleague appellate Judges allowed the State’s appeal.
Both Justices Yonette Cummings-Edwards, the acting Chancellor; and Dawn Gregory opined that while 33 is the majority of the 65-member National Assembly, the successful passage of a no-confidence motion requires an “absolute” majority of 34, and not the “simple” majority of 33 that has been used to pass ordinary business in the House.
According to the two appellate Judges, half of the National Assembly would be 32.5 and since there is no half vote then that would be rounded up to 33, which is a “simple” majority of the House, and so in order to make it “absolute”, one more has to be added to bring about a 34 majority.
This was the argument submitted by Grenadian Queen’s Counsel, Dr Francis Alexis, who was hired by Government. He had reasoned during his oral submissions that the incorrect formula was used to determine the votes needed to validate the passage of the motion.
But according to the former Chancellor, the Constitution in other countries was crafted to fit practices in that jurisdiction and as such, Guyana cannot import interpretations that do not fit with constitutional practices here.
“We should not have grabbed onto what the court would have ruled in another jurisdiction. I don’t know what the Constitution of other countries says, but our Constitution is clear on this. Nowhere in the Constitution, is the word ‘absolute’ mentioned, Justice Kennard insisted.
Following last Friday’s ruling, the coalition Government has indicated that it will continue with the State’s business as usual and is preparing to resume sitting of the National Assembly.
However, Opposition Leader Bharrat Jagdeo had stated that the People’s Progressive Party Opposition would not be attending Parliament until the CCJ rules. Earlier this week, a team of lawyers led by former Attorney General Anil Nandlall, appealed the Court of Appeal decision. A case management hearing on the matter is scheduled for today.