Govt must follow letter, spirit of Constitution if court rules against it – CCJ President
– as Court Judge frowns upon Guyana’s slothful judicial, elections system despite urgent circumstances
– despite urgency of preparing for elections in 3 months after no-confidence vote
As the actions of Guyana’s Judiciary and the Guyana Elections Commission (GECOM) were discussed at the Caribbean Court of Justice on Thursday, the court frowned upon the slothfulness of these systems in Guyana despite the urgency necessary after a no-confidence motion (NCM) is passed.
This was as action got underway on day one of hearing the three consolidated court cases which relate to the NCM. As he wrapped up the session, CCJ President, Justice Adrian Saunders, informed the Government team that if they rule against them, they have to follow both the letter and spirit of Guyana’s Constitution.
“You have the Constitution. You have the courts. You have the President and the Cabinet and you have the National Assembly. We have to make this thing work. And we have to make it work according to the letter and spirit of the Constitution,” Justice Saunders stated.
Attorney General Basil Williams had argued for time for the Elections Commission, noting that without a credible list, any elections could prove difficult. However, the CCJ President noted that since the vote was held in December, it has been known that from that date there may be a need for fresh elections.
But Justice Saunders noted that it will therefore be very disappointing if GECOM is unable to hold elections, “if the appellants succeeded” and the political parties are unable to have a two-thirds majority in National Assembly.
The Judge stated there must be some reconciliation between the call for credible elections and having those elections within a particular time. When asked if he had any final words, Williams went on to allude to elections violence if a voters list is seen as not credible.
Meanwhile, Justice Winston Anderson remarked that the judicial system in Guyana should have deployed all resources to ensure the cases were heard in a timelier manner. Local lawyer Sanjeev Datadin, who is in Trinidad representing former Alliance For Change (AFC) parliamentarian Charrandas Persaud, agreed that the Judiciary should have taken such steps.
And Datadin noted to the CCJ that GECOM should have held elections by March 21, as set out by the Constitution. He pointed out that the Court of Appeal decision that allowed Government its reprieve in office came after that constitutional deadline had elapsed.
“Until there’s an order to stop a proceeding, you should proceed. That would apply to the Guyana Elections Commission,” Datadin told the court. “Being well aware that there is a challenge that can go one of two ways, they should be getting themselves ready and being on the ready, so they can fulfill the mandate of the people.”
“I understand,” Justice Anderson replied. “And I’m curious. If the final decision is that the No-confidence Motion was carried, then the logical implication is that elections ought to have been held by March 21 (2019).”
“Should not the judicial resources be used in such a way to ensure that the Constitution is followed? Obviously the President (David Granger) must obey the Constitution… and so must the court. And the Constitution ordained that in these circumstances, a NCM is carried, elections must be held in three months,” the CCJ Judge stated.
Anderson noted that if Guyana’s courts ruled the NCM not validly passed, then this would have been no problem. But describing himself as “astonished”, the legal luminaire made it clear that in the absence of such a ruling, all efforts should have been made to have elections held in those three months.
Charrandas Persaud had voted in favour the Opposition-sponsored No-confidence Motion on December 21, 2018. The vote, according to some interpretations, would have seen the Government being ousted from power.
But the coalition has since challenged the validity of the Motion, suffering defeat at the High Court before being thrown a lifeline by the Appeals Court. If the CCJ finds that the Motion was indeed validly passed, the parliamentary Opposition has argued that this would mean an illegal Government has been in place since March 21, 2019.
This is why Trinidadian Senior Counsel Douglas Mendes, one of a battery of lawyers representing Opposition Leader Bharrat Jagdeo in the proceedings, requested that the court issue an order for general elections to be held in the shortest possible time, should it be determined that the no-confidence motion was validly passed.
He also warned that the Government is trying to create an environment to deter party members from ever crossing the floor and voting against it again. Mendes noted that if every Member of Parliament who votes against the Government is then required to give up his seat and have his vote invalidated, it therefore means the Government can never be defeated on a vote of no- confidence.
According to Mendes, the coalition Government is trying to implement an “anti-crossing the floor” measure to ensure it cannot be brought down when members of its party lose confidence in them.
Mendes noted that if the Government is to have its way, then Article 106 (6) of the Constitution would be pointless, as the Government would always be able to defeat any no-confidence motion. And CCJ President, Justice Adrian Saunders remarked that it went beyond this, as it meant voting on anything requiring a majority in Parliament would become a charade.
Article 106 (6) and (7) of the Constitution states, respectively: “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.”
And “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.”
The three No-confidence Motion cases deal with Christopher Ram v the Attorney General of Guyana, the Leader of the Opposition and Joseph Harmon; Opposition Leader Bharrat Jagdeo v the Attorney General of Guyana, Dr Barton Scotland and Joseph Harmon; and Charrandas Persaud v Compton Herbert Reid, Dr Barton Scotland, Bharrat Jagdeo and Joseph Harmon; the last of which deals with Persaud’s eligibility to vote in the House. The oral arguments will conclude today, after which a ruling will be expected.