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No-confidence cases
As day two of the arguments on the validity of the No-confidence Motion was heard before the Court of Appeal on Tuesday, Attorney Anil Nandlall submitted that the judges ignore applications made to extend the life of the coalition Government.
Nandlall, who is representing Opposition Leader Bharrat Jagdeo in the matter, in his submissions to the court stated that if the honourable judges grants the extension being sought by the Government then they will be directly interfering in the work of the National Assembly, a separate branch of Government, and the political landscape of the country.
“If your honours are to accede to such a request, your honours would be falling into conflict with the separation of powers doctrine,” he said in while outlining that the framers of the Guyana Constitution clearly resided that power of extension beyond that three months, by not putting it in the Judiciary.
“And that your honour is not coincidental… is not an omission but it placed it in the National Assembly. They put it in the Legislature because it is a political issue and the court must not be dragged into solving political matters that politicians can’t solve. And that’s part of the problem in this case,” he added.
Nandlall submitted that the Constitution makes provision for the eventuality that the three months is passed based on a no-confidence vote that the Government and the Opposition should sit down and find a solution by a two-thirds vote in the National Assembly to extend the life of Government.
But now with just a few days left before the March 21 deadline for the constitutionally date for election, the attorney said it is clear that that cannot be solved. “There is a political impasse that the politicians cannot overcome. They are trying to drag the honourable Speaker (Dr Barton Scotland)…but with great tenacity he sidestepped. And now the Judiciary is left to fetch this horrible burden.”
During his arguments, the former Attorney General told the court that Cabinet and Government are two distinct groups. And in the case where a no-confidence motion is passed successfully, the President and the Ministers must remain in office until elections are held and a new President is sworn in. However, the Cabinet and the President must resign immediately after a no-confidence motion is passed.
GECOM
As it relates to the Guyana Elections Commission’s (GECOM) role in this matter, Nandlall argued that based on the Constitution, the Commission must always be ready for an election. “It’s a universal position…It is presumed to be ready…GECOM must always be ready,” he stated.
The attorney also criticised the move made by the Government team to advocate for GECOM to be given time. “No way in the Constitution provides a consultation before an election,” he said, explaining that GECOM is an independent agency. He asserted that Attorney General (Basil Williams) nor Government have any neither place nor authority to direct or consult with GECOM on elections.
Further, Nandlall also accused Williams of trying to create panic when he entered in his arguments that finances totalling $3 billion for the holding of elections can only be granted based on the approval of Cabinet and the National Assembly. Instead, he told the court that the Constitution allows for the finances to be drawn from the Contingency Fund which allows for access for urgent need for expenditure.
“If GECOM determines that it needs financial aid to access that…by the Contingency Fund and where the advance is made, as soon as practical a statement to that effect shall be laid in the Parliament so in the next life of Parliament that person (next Finance Minister) will lay it in the House which was accessed from the Fund for GECOM if that is the situation. There is no need to go back to Parliament.”
The Opposition Leader’s attorney argued also that when the now Government which formed the Opposition back in 2014, they relied on the 33 seats that they had in the National Assembly to pass a motion of no-confidence. However, they are now claiming that it does not add up to a majority vote.
In describing their arguments on the votes as “mathematical gymnastics,” Nandlall reminded the court that these same 33 votes helped the then Opposition to pass bills, defeat and cut budgetary allocations; and even passed yearly budgets. This is before Parliament was pirogue and an election was called in 2015.
Nandlall maintained that the Constitution is clear and nothing is ambiguous in it. He said that it contained rules catered for almost any eventuality. However, he said the Government is trying to make the issue more complex and complicated, to remain in office and using the courts in vein. “I think the issues are very clear and the matters will be resolved in favour of the Constitution,” he added.
Empowered
Meanwhile, the attorney representing political commentator Christopher Ram in the no-confidence matter, Kamal Ramkarran, argued that Constitution is the country’s rule book and the court must act to uphold the provisions of the Constitution and ensure that the rule of law is not violated.
Ramkarran argued that the court is empowered to determine a timeframe for elections. “In order for that decision of the Court of Appeal to have meaning, the court is empowered to say that elections have to be held forthwith or within a period no later than 31 days from the date of the decision,” he said.
The attorney argued that the court is the protector of the Constitution and noted that if elections could not be held on March 21, 2019; there is no extension and no proposed date which would lead to violation of the Constitution and crisis starting March 22, 2019. And unless there is an extension for the holding of election, then the country will have an unconstitutional Government.
Ramkarran argued that GECOM was required to take action and is obligated to set a date. “They have the right to do that in order to act impartially, fairness and in compliance with the Constitution. The court cannot stand idly by and allow the March 21 deadline to pass.”
He said the court should enquire from GECOM why it did not comply with the Constitution to conduct the elections within 90 days following the passage of the No-confidence Motion on December 21, 2018.
The lawyer said, “There was a mandatory duty of the President and GECOM to ensure the elections were held within three months or within such extended period as provided for in the supreme law.”
The court was also reminded that while these legal arguments are being made before the Appeal Court, the time for the 90-day period in which the country should have an election is slowly approaching.
The defence will continue their submissions today before Acting Chancellor of the Judiciary Yonette Cummings-Edwards, and Justices of Appeal Rishi Persaud and Dawn Gregory.
