In Charles Dickens’ “Oliver Twist”, when the henpecked Mr Bumble is told by a lawyer in court that he’s responsible for his wife’s actions, “for the law supposes that your wife acts under your direction,” he indignantly retorted, “If the law supposes that, the law is an ass — an idiot.” The point, of course, is that the law cannot be applied in a formulaic manner, but must take into consideration the concrete circumstances in question.
And when the law doesn’t even specify a formula but the court willfully concocts and dogmatically applies one in a nationally groundbreaking case, it simply makes the law into an ass to the Nth degree! And this is exactly what transpired in our Appellate Court, posing a grave danger to our democracy by undermining a pivotal institution.
And that’s what the Appellate Court did when two of its members chose to overturn the decision of the Chief Justice in the High Court – that in an Assembly of 65 members, the “majority” is 33. Now bear in mind that the Article of the Constitution being interpreted was Art 106 (6), which says quite simply and clearly: “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.”
The Article talks of a “majority” – as indeed the entire constitution does — and in no way, shape or form is ever qualified or distinguished into a “simple” or “absolute” majority. So to pass bills, including Budgets or the AML/CFT Bill, all it took was a majority, which over the last four years was the 33 seats of the APNU/AFC coalition.
In fact, when the PPP moved the NCM, Amna Ally screamed, “Bring it on!! We have the needed 33-seat majority!!”
When the Government – as appellants to the Speaker’s ruling that the NCM was validly passed – raised the distinction, the Chief Justice did note that, in parliamentary democracies, a “simple majority” is the majority of the members of the Assembly PRESENT and voting, while an “absolute majority” demands a majority of ALL the members of the assembly. So in India’s lower house, for instance, with 645 members, the “absolute majority” is 273 – the greater of two portions.
In the NCM, here in Guyana on Dec 21, 2018, since all the 65 members were present and voted, then the “simple majority” and “absolute majority” were one and the same.
So what do you say when 2 Appellate Justices INSERTED into Art 106 (6) the need for not just an ABSOLUTE majority, but one that demanded rounding off HALF BODIES and then making them whole??
That the law is an ass?
…going to be exploited?
As the Opposition Leader pointed out, when the Chief Justice in the High Court ruled that the President and Cabinet should’ve resigned on Dec 31, and that the Government would end on March 21, the PNC-led Government blithely went along as if nothing had changed. They just thumbed their noses at the Court and the ruling by renaming the Cabinet meetings as “plenary” meetings.
The Opposition Leader wondered, after the Appellate Court shock ruling, whether the Government would now NOT call elections. Of course they won’t!! He’d thrown them into panic mode with the successful NCM, because of their plans for gaming the elections machinery – read the GECOM head; the Dep CEO, and 90 per cent of the Secretariat from the PNC’s “constituency”.
Now the pressure’s off they’ll get to work on the voters list – a nip here and a tuck there will go a long way to “fixing” their majority. Especially when they now have to “get” 34 seats!!
…now making the courts a laughing stock?
After the Appellate Court’s thunderbolt, even ordinary folks started mocking them. They wanted to know whether their 2-1 decision was a “majority” by their “rule”.
Dividing 3 by 2 gives 1.5; rounding it upwards gives 2, and then adding 1 requires 3 votes!!