Court of Appeal urged to order elections to be fixed

– as Chancellor promises to send out notices on decision

In closing arguments for the validity of no-confidence cases, which came to an end on Thursday at the Court of Appeal, Attorney representing the Opposition Leader, Anil Nandlall, urged the three-member panel of judges to order elections to be fixed, given the impending constitutional crisis.
Nandlall said the court has limitless powers to do that which is necessary to correct what he described as a clear violation of the Constitution. He cited the successful passage of the no-confidence motion, and argued that the court have to step in now.
“The court has the power to do that which is necessary, and to ensure that this court can order elections to be fixed, because that is what the Constitution contemplates by March 21,” he said.
He deemed it unfortunate that the issue had to be taken to the court, but continued, “Yours Honours, this court (Appeal Court) has a duty (the judiciary) has a duty under the doctrine of the separation of powers to guard our Constitution and to ensure that all of its creation act in the manner contemplated and provided for by the Constitution.”
In explaining the role of Government in holding an election, Nandlall said the President has to issue the proclamation, fixing the date for elections and dissolving Parliament. However, he explained that none of these developments has taken place, although the motion was carried.
“It doesn’t mean Government must hold elections. It means that they should initiate the process for the electoral machinery to begin its natural course. GECOM can’t start the process; that is why there is need for continuity and the relationship between all these agencies for the Constitution to work,” he added.

The former attorney general also brought news arguments regarding the financing of general and regional elections, stating that the Guyana Elections Commission (GECOM), as a constitutional body, receives lump sum financing under the Constitution.
“It is one of those agencies enjoying overarching financial independence. They can use their monies as they see fit, but it must be tempered. They must exercise this right judiciously and lawfully, and must take into account the laws of the land,” he asserted.
And if, by some constitutional event, a process is triggered that requires an election, the attorney said, it is a constitutional duty of GECOM to alter its agenda accordingly to accommodate the holding of elections within the constitutionally prescribed time.
“And it doesn’t need the President to babysit, it nor the executive. Because it is an independent body, and this court, as the guardian of the Constitution, because when they depart from their duty they are departing from their mandate in which the Constitution has imbued them with, set out in Article 160 (6) and (7),” Nandlall submitted in his arguments.
Nandlall also raised the point that GECOM has the responsibility to hold elections, and the court has a duty to ensure that the Constitution is obeyed in this process. “Not the executive. The executive has no business requesting work plan and that sort of thing. That is why GECOM must always be in a state of readiness, because our law prepares them. If the Constitution wanted such discretion be given to GECOM, the framers would have put it there.”
In responding to other arguments made by several of the Government’s lawyers, Nandlall told the court that although they have attempted to make the issue complex by arguing what is a majority from what is meant by a simple and absolute majority, it does not change what the issue boils down to, and that is a majority meaning 33 is more than 32 votes.
“Don’t fall into error and read into what is not there,” he told the Appeal Court judges, rejecting the arguments about fractions being applied to the situation of the no-confidence case.
Nandlall also submitted in his arguments that Opposition Leader Bharrat Jagdeo was qualified to take a motion of no-confidence, based on Article 170 of the Constitution, which authorises any member of the National Assembly to table a motion in their name.
In conclusion, Nandlall said the arguments from the Government side have been conflicting. He said, “It is like shooting a shotgun with scattered bullets, hoping that something will stick.”

Contingency Fund
During Thursday’s closing arguments, Attorney General (AG) Basil Williams told the court that going to the Contingency Fund to finance the holding of elections is not a viable alternative. According to the AG, by law, that fund could only be accessed in cases of an emergency, such as a disaster, and this cannot be done when the Parliament has still not been dissolved.

“There is a Parliament, and it has not been dissolved, so that cannot happen…the first choice would be to go to the Contingency Fund and not the Consolidated Fund. If the court restores the cabinet, then 99 percent of the problems will be resolved. I am asking this court to set aside the decision of the Chief Justice that the cabinet is no more after March 21,” he stated.
Williams also argued that it won’t qualify as an emergency fund either, because the no-confidence motion came before the most recent budget was debated in the National Assembly. He noted that Christopher Ram, who filed one of the cases, asked for the Cabinet to be removed, but as an accountant, he must be aware that a financial bill cannot go to the House without a Cabinet in place.
Meanwhile, one of the lead attorneys representing the Government in the no-confidence cases, former Attorney General of Grenada and now Senior Lecturer at the University of the West Indies Cave Hill, Barbados, Dr Francis Alexis, sought to explain the legal position of the administration.
He said that based on the research of the Government’s legal team, in the case of Guyana, where there is an odd number of 65 seats in the National Assembly, there has to be a vote that results in practically thirty-four members voting in favour of the motion.

Plus one
“There is a two-stage process. The first stage, you divide the total membership of the house, 65 by two, you will get 32 and a half. That figure has to be rounded up to 33. The research of the Attorney General and his staff here in Georgetown proved that conclusively,” he explained.
The attorney said the next stage, which he described as the “plus one stage,” is applied when the 33 members’ votes are rounded up and then one is added to it. He made reference to the appeal case called Kilman v. Speaker of Parliament of Vanuatu, where in a 47 member National Assembly, the majority was 24 plus one making it 25.
“It makes no difference whether the fraction is upfront, whether the framers said one-third or one-half, or whether the fraction results from the dividing of the total membership of the house into two…;once you get to a fraction, you have to round it up to a whole number, and you add one. That, in a nutshell, is what we are asking the court to do,” he added.
Dr Alexis claims that in Chief Justice Roxane George’s ruling, she got to 33 and did not add the one. He claims that without adding the one, the submission is not yet completed and the motion is not passed in accordance with Article 106 (6) & (7) of the Constitution of Guyana.
Further, lawyers representing the Government had varying views, starting with the fact that they submitted to the court that the Act that amended the Constitution to bring in the no-confidence vote is unconstitutional. They also argued that the no-confidence vote does not exist in the Constitution, while others presented arguments about what is a majority.
Presiding over the cases were acting Chancellor of the Judiciary, Justice Yonette Cummings-Edwards, and Justices of Appeal Rishi Persaud and Dawn Gregory.
At conclusion of Thursday’s hearing, the acting chancellor said notices would be sent with a decision shortly. She did not provide a date.