Suspended APNU/AFC MPs: Nandlall, Forde clash over High Court’s jurisdiction to hear case

…Judge to rule on December 8

Justice Damone Younge is slated to rule on December 8 on whether the High Court has jurisdiction to hear the case filed by eight APNU/AFC Members of Parliament (MPs) who are challenging their suspension from the National Assembly. Opposition Chief Whip Christopher Jones, Ganesh Mahipaul, Sherod Duncan, Natasha Singh-Lewis, Annette Ferguson, Vinceroy Jordan, Tabitha Sarabo-Halley, and Maureen Philadelphia (the applicants) were, in July, officially suspended for breaching the National Assembly’s Standing Orders by participating in the infamous grabbing of the Speaker’s Mace — the most significant symbol in the National Assembly – and for disrupting the sitting of the National Assembly on December 29, 2021, during their protest against the second and third readings of the Natural Resource Fund (NRF) Bill.

At a hearing on Friday, Justice Younge heard arguments from lawyers for the applicants and the three respondents, namely Attorney General Anil Nandlall, SC; House Speaker Manzoor Nadir; and Clerk of the National Assembly, Sherlock Isaacs, on the preliminary issue of jurisdiction.
Senior Counsel Roysdale Force, Selwyn Pieters, and Khemraj Ramjattan are representing the applicants, while Nandlall is among the battery of attorneys for the respondents.

Clash
In his address to the court, Nandlall submitted that it is clear and common ground that the applicants’ case challenges a resolution passed by the National Assembly, a report of the Parliamentary Sessional Select Committee of Privileges, a Privilege Motion passed by the National Assembly, and certain ancillary and incidental matters arising therefrom and in relation thereto.
Considering this, he said that it cannot be disputed that the applicants’ application contests “what can be described as the internal proceedings of Parliament/ the National Assembly.”

For centuries, he contended that this compendium of privileges has amalgamated to imbue Parliament with a power to regulate its own proceedings, including a power to discipline its members, without interference or review by any authority, other than Parliament itself.
According to the Senior Counsel, these principles and doctrines were inherited by colonies of Great Britain, including Guyana, and upon independence, with the advent of a written Constitution, self-declared to be supreme, they became subject to that Constitution.
“Significantly, the Constitution expressly codified and thereby preserved these principles and doctrines. Article 165 (1) of the Constitution of Guyana provides as follows: (1) Subject to the provisions of this Constitution, the National Assembly may regulate its own procedure and may. make rules for that purpose,” the Attorney General outlined in his oral arguments.
Nandlall said, too, it is common ground that the National Assembly makes rules for that purpose, as constitutionally prescribed and that they are called Standing Orders.
Standing Orders, he pointed out, are not legislation, either primary or subsidiary but constitute the network of rules by which Parliament is governed procedurally.
He added that Standing Orders, unlike laws, are not debated in the legislature and are not passed by the Parliament in the exercise of its legislative function pursuant to Article 65 (1) of the Constitution which states: “Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good governance of Guyana.”
“Standing Orders are further are not assented by His Excellency, the President, and are not gazetted as laws are required to be under the Constitution. Further, Standing Orders are not contemplated within the meaning of ‘written law’ pursuant to the Interpretation and General Clauses Act [which] provides in Section 5 (1): ‘written laws mean the constitutional instruments, Acts of Parliament, subsidiary legislation and applied laws…”
For all these reasons, breach of the Standing Orders and their enforcement do not attract the jurisdiction of the courts, as the function of courts is to interpret and apply laws, Nandlall argued. He, therefore, contended that Standing Orders are to be interpreted and enforced by the Speaker of the National Assembly and the National Assembly, and no other authority.
Forde, on the other hand, contended that the respondents have failed to establish that the court does not have jurisdiction to try the matter. By filing an application under Article 153 (1) of the Constitution seeking constitutional relief on the ground that their constitutional rights have been contravened, Forde submitted that the High Court by Article 153 (2) of the Constitution is conferred with original jurisdiction to hear the proceedings.
“It is submitted that Articles 153 (1) and particularly 153 (2) of the Constitution clearly confer jurisdiction on the High Court to hear and determine any application made by a person in pursuance of the preceding paragraph,” Forde told Justice Younge.
He said that the jurisdiction of the High Court under Article 153 is activated whenever a proceeding is filed raising the contravention of a fundamental right. “Equally, the High Court’s jurisdiction is activated whenever a proceeding is filed to the High Court raising the contravention of a human right enshrined in the International Treaties set out in the Fourth Schedule and requires the Court to determine whether the Legislature operated and upheld such rights.”
Forde, in citing a plethora of case laws, submitted that beyond the Caribbean, courts have also recognised that they can question the decision of the legislature (Parliament).

Findings
The decision to suspend the eight APNU/AFC MPs was made by the Parliamentary Committee of Privileges. Following investigations, the Parliamentary Committee of Privileges delivered its report in mid-July, recommending the suspension of the eight MPs for violating Standing Orders and established customs and practices regarding acceptable behaviour of Parliamentarians. The Committee of Privileges was tasked with considering a Privilege Motion which stated that the eight Opposition Members, in attempting to prevent the second and third readings of the Natural Resource Fund (NRF) Bill, had conducted themselves in a gross, disorderly, contumacious, and disrespectful manner, and had repeatedly ignored the authority of the National Assembly and that of the Speaker, thereby committing contempt and breaches of privileges.
According to the Committee’s report, its recommendations were based on video recordings, statements by staff of the Parliament Office and the Arthur Chung Conference Centre (ACCC), eyewitness accounts by other Members of the National Assembly, media reporters, and the public, both locally and internationally.
Additionally, each of these Opposition Members had been written to and asked to “show cause” why sanctions should not be meted out to them. Their responses were received and considered by the Committee. Armed with those responses, the Committee “found that the named MPs were in violation of the Standing Orders and established Customs and Practices regarding acceptable behaviour of Members in the Assembly.”
It was therefore determined that the appropriate sanction available for the National Assembly to impose is suspension from service in the House.
Reliefs
Against Attorney General Nandlall, House Speaker Manzoor Nadir, and Clerk of the National Assembly, Sherlock Isaacs, the Opposition MPs are seeking, among other things, a declaration that the report of the Parliamentary Committee of Privileges is unconstitutional, null, void, and of no legal effect; and that their suspension is a breach of the principles of natural justice, because their rights, as guaranteed under Article 144 (8) of the Constitution, have been infringed.
Their request for an interim order suspending any decision, resolution, or other determination made by the National Assembly to suspend them and for another interim order allowing them to perform their duties until they have been afforded the right to be heard before the Parliamentary Committee of Privileges, pending the hearing and determination of their case, have been refused by both Justice Younge and by the Demerara Full Court.
‘Unaware’
Notwithstanding the findings of the Committee of Privileges, the APNU/AFC Parliamentarians, in legal documents seen by this publication, contend that they are “unaware of any act of ours on the day in question falling in the category of gross disorderly conduct, contempt, and breaches of privileges, and that to the best of our recollection, on the day in question, our posture was no different from all other Members of Parliament who were present…”
According to them, they had specifically requested that the Committee of Privileges identify to them the Standing Orders or privileges they had supposedly violated, as this was essential if they were to effectively exercise the opportunity to show cause.
They complained that at no time were they invited to appear before the Committee of Privileges to be allowed a hearing, nor were they told what action of theirs had violated established customs and practices regarding acceptable behaviour of MPs.
The Parliamentarians have argued that the report of the Committee of Privileges would be a published record that would forever inevitably affect their character and reputation. They argued that any suspension would further hinder them from representing the people who elected them to sit in the National Assembly, and would also prevent Mahipaul from functioning as a member of the Public Accounts Committee (PAC).
They contend, inter alia, that “any suspension will deprive (them) of their full salaries and of the opportunity to be representatives of the National Assembly and people of Guyana at national, regional, and international forums.”
Further, they submitted that their likely suspension is part and parcel of an unconstitutional scheme and/or device by the Government to utilise its majority in the National Assembly to silence and to reduce the numbers of sitting Parliamentary Opposition Members of Parliament.
No salaries, allowances
The Clerk of the National Assembly has already written the suspended MPs, informing them that, during the period of their suspension, they would not be paid salaries and allowances, and would not be entitled to some of the other benefits enjoyed by other Members of the House.
The Privileges Committee recommended that Jones, Mahipaul, Duncan and Singh-Lewis be each suspended for four consecutive sittings: for attempting to prevent the second and third readings of the NRF Bill; for conducting themselves in a gross, disorderly, contumacious and disrespectful manner; and for repeatedly ignoring the authority of the Assembly and that of the Speaker, thereby committing contempt and breaches of privileges.
A recommendation was also made for MPs Ferguson and Jordan to each be suspended for six consecutive sittings for similar offences. However, their suspension was higher, since the Committee concurred that they had committed “serious violations which were severe and egregious, by unauthorisedly removing the Parliamentary Mace from its rightful position in a disorderly fashion, causing damage to the Mace; and injuring and assaulting a staff of the Parliament Office while attempting to remove the Mace from the Chamber”.
And a similar recommendation of suspension for six consecutive sittings has been made against Sarabo-Halley, whose violations were found to be “severe and egregious with regard to unauthorisedly entering the Communication Control Room of the ACCC and destroying several pieces of audio-visual equipment, being public property”.
MP Philadelphia is also facing a suspension recommendation of six consecutive sittings over her severe and egregious violations, by which she “verbally assaulted a staff of the Parliament Office within the precincts of the National Assembly”.
The Privileges Committee is chaired by the House Speaker, and its members comprise both Government and Opposition MPs. Representing Government are: Prime Minister Brigadier (ret’d) Mark Phillips; Attorney General Anil Nandlall; Parliamentary Affairs and Governance Minister Gail Teixeira; Culture, Youth and Sport Minister Charles Ramson; and Attorney-at-Law Sanjeev Datadin. Representing the APNU/AFC are Khemraj Ramjattan; Roysdale Forde; Geeta Chandan-Edmond, and David A Patterson. It is understood that the Opposition Members did not participate in the last three of five Privileges Committee meetings.
Hence, the other members, including the Chairman, had gone ahead and concluded the report with recommendations for the suspension of the eight Opposition MPs. (G9)