Mon | Jul 15, 2019

Guyana gov't suffers major setback as CCJ rules no-confidence motion valid

Published:Tuesday | June 18, 2019 | 12:32 PM

PORT OF SPAIN, Trinidad, CMC – The Guyana government has suffered two major setbacks in its efforts to continue in office as the Trinidad-based Caribbean Court of Justice (CCJ) ruled that the opposition-inspired motion of no confidence against it in December last year was valid.

The CCJ, which is also Guyana’s highest and final court, also ruled that the process through which Reverend Justice (Retired) James Patterson was appointed chairman of the Guyana Elections Commission (GECOM) by President David Granger, was flawed and in breach of the Guyana Constitution.

In a ruling lasting just over an hour, CCJ President Justice Adrian Saunders, said that the parties will meet on June 24 when the possible consequential orders arising from the rulings will be discussed. He said the costs will also be discussed then.

One of the options open to the parties is the provisions within the Guyana Constitution requiring that regional and general elections be held within three months of the defeat of the government on a motion of confidence, unless two-thirds of the National Assembly determined a longer period before the holding of elections.

Despite the speaker of the Assembly declaring that the motion had been validly passed, the government neither resigned nor announced impending elections, with the opposition People’s Progressive Party (PPP) labelling it at times “illegitimate” and boycotting the sittings of the National Assembly.

Opposition Leader Bharrat Jagdeo had challenged the ruling of the Court of Appeal in his country that invalidated the motion of no confidence that he had successfully piloted in the National Assembly in December 21, last year.

One of the main issues in that case was whether 33 or 34 votes were required to carry the motion given that the membership of the National Assembly totalled 65 members.

Charrandass Persaud, who was then a government legislator, voted in support of the motion ensuring that the Granger-led coalition administration lost its one-seat majority in the 65-member legislative body.

When the matters came before the High Court in Guyana in January, it ruled that only 33 votes were required. However, on appeal to the Court of Appeal, the three-member panel by a 2-1 majority held that 34 votes were required.

Justice Saunders, who delivered the ruling of the five-member panel of judges following the main arguments in May, said the CCJ found that 33 is the majority in the Guyana Parliament and therefore the motion was passed by a majority.

“The Court held that since the Assembly comprised an odd number of persons, that is 65, when all the members are present and vote, all that is necessary is to determine whether the motion has garnered 'a majority of all the elected members'."

“Such a majority in the Court’s view is clearly, at least 33 votes,” Justice Saunders said, noting that in determining that majority, the Court was of the opinion that the ‘half plus one’ rule as argued by the State, was not applicable.

He said that the CCJ was also asked to determine whether Persaud was ineligible to vote as he was a dual citizen since dual citizens are not allowed to put themselves up for candidacy in elections to the National Assembly.

The CCJ found that the National Assembly (Validity of Elections) Act required that a petition alleging that Persaud was disqualified from running for office would have had to be filed in the High Court of Guyana within 28 days after the publication of the results of the 2015 election.

Justice Saunders said that since this case was filed in January 2019, the CCJ held that the challenge to Persaud’s election to the Assembly had been out of time and also ejected the submission that the former government legislator was absolutely required to vote against the motion of no confidence along with other members of the Government.

Two of the five-member panel noted that while the Constitution contained provisions that prevented members from ‘crossing the floor’, it gave the representative of both the Government and the Opposition the power to recall and replace a member.

They felt that those provisions could not, and were not, meant to prevent members from so voting.

Justice Anderson said that there may be need for drafters to revisit the language of ‘confidence motions’ provisions in the Constitution to bring about more clarity.

He said also that while challenges to disqualifications for elections were generally barred after 28 days after the election, in his opinion, there may be cases such as fraud where the Court would have jurisdiction to hear the matter.

Justice Rajnauth-Lee in her judgment stated that “there was nothing which prevented Persaud from voting in favour of the no confidence motion” and she urged all to bear in mind that the rule of law was an important guiding constitutional principle of a sovereign democratic state like Guyana.

“Having concluded that the Court lacked jurisdiction to impeach Mr Persaud’s election, the Court found that there was no real need to ascertain whether Article 165(2) preserved the validity of Mr Persaud’s vote on the motion. However, even if the Court had jurisdiction to declare Mr Persaud’s election to the Assembly to be void from the outset, the Court agreed with the courts below that Article 165(2) would have preserved the validity of his vote,’ Justice Saunders noted.

The CCJ was also asked to interpret the differences between a ‘motion of no confidence’ and ‘a motion of confidence,” with the arguments being that the provisions in the Constitution only applied to ‘motions of confidence’ which could only be raised by a member of the Government.

But the CCJ held that the reference to ‘a vote of confidence’ in the Constitution included ‘a motion of no confidence’ which could be raised by any member of the Assembly, including the leader of the Opposition.

Regarding the appointment of a GECOM chairman, Justice Saunders said that while the CCJ found the section to be flawed,  the Court wanted to emphasised that nothing in its judgment was intended “in the slightest degree” to cast aspersions on Justice Patterson’s competence and suitability for the post.

He said also that there should not be any suggestion that Granger had not acted in good faith.

The CCJ ruled that the Constitution stated that the GECOM chairman had to be appointed by the president from a list of six persons, not unacceptable to the president, submitted by the leader of the Opposition.

The Court heard that three lists, with a total of 18 nominees for the post of the GECOM Chairman, were submitted for consideration by Jagdeo and rejected by Granger.

The CCJ noted that there could be a “reasonable and responsible” manner in selecting the future GECOM chairman, with both the President and the opposition Leader meeting before to agree on the names of possible nominees.

It said that this would show “true partisanship and seek the best interest of the Republic and the Guyanese people.

“”The Court is also of the view that the employment of the double negative, not unacceptable signals  an onus is placed on the President not to find a nominee unacceptable merely because the nominee is not a choice the President would have himself made.  By a majority, the Court found that the President should only find a nominee unacceptable for some good reason on objective grounds,”

It was also found that the president could not, as a precondition to considering a nominee, include eligibility requirements that were additional, or different, from those stated in the Constitution.

In a concurring judgment, Justice Rajnauth-Lee stated that by giving reasons why nominees are rejected, the president will engender greater public trust and confidence in the Elections Commission, with Justice Anderson agreeing that the process was flawed but did not think that, at the consultative stage, it was necessary for reasons to be given. T

The Court concluded that the most sensible approach to the process of appointing the Chairman of GECOM is for the Leader of the Opposition and the President to communicate with each other in good faith and, perhaps, even meet to discuss eligible candidates for the position of Chairman before a list is submitted formally.

The CCJ in ruling that the present appointment was in breach of the Constitution, invited both sides to present further arguments on how the issue should be rectified.