Harmon appeals judge’s rulings on no-confidence motion
General Secretary of A Partnership for National Unity (APNU), Joseph Harmon, yesterday filed appeals challenging two of the decisions handed down by Chief Justice (ag) Roxane George-Wiltshire, regarding the controversial December 21 no-confidence motion.
His attorneys, Roysdale Forde and Olayne Joseph, in the Notices of Appeal, contend that there is dissatisfaction with both decisions in their entirety, including that the vote of Charrandass Persaud was valid even though he was disqualified from being an elected member of the National Assembly given his Canadian citizenship.
The attorneys lodged appeals in the cases brought by private citizen Compton Reid against Dr. Barton Scotland, the Speaker of the National Assembly, Persaud and the Attorney General (AG), as well as the case brought by the AG against Scotland and Bharrat Jagdeo, the Leader of the Opposition. In both cases, the court granted Forde’s application for Harmon to be added to the proceedings as an interested party.
These appeals are the second set to be filed following the CJ’s rulings last Thursday. AG Basil Williams, on behalf of the government, filed two appeals on Tuesday. One regards the case he filed against Scotland and Jagdeo and the other relates to the case brought by chartered accountant Christopher Ram.
Checks by Stabroek News revealed that the Guyana Court of Appeal has not yet set a date for the hearing of those appeals. Observers have expressed hope that the court would expedite the appeals in the manner that Justice George-Wiltshire did.
One of Reid’s attorneys, Neil Boston SC, had also indicated to the court that he would be filing an appeal but would like to have a copy of the written judgement. The CJ had indicated that this would be available by Wednesday but when this newspaper made inquiries, her office said that it was not yet available. This newspaper understands that “some cleaning up” has to be done and that it may be available as early as today.
There was no indication from Reid’s camp yesterday if and when the appeal will be filed.
Forde and Joseph, in both appeals, stressed that the CJ erred in law numerous times and asked that costs be awarded in both the Court of Appeal and the High Court. At the end of each judgment, the CJ had said that she was not awarding costs to any of the parties involved.
In the first Notice of Appeal, which deals with Persaud’s ineligibility to vote given his dual citizenship, Forde contends that the Learned Judge erred in law when she held that the no-confidence motion was a vote of confidence within the meaning of Article 106 (6) of the Constitution of Guyana.
The attorneys said that she also erred in law when she failed to construe the phrase “vote of a majority of all the elected members of the National Assembly…” in Article 106 (6) of the Constitution of Guyana; when she found that the no-confidence motion was lawfully passed by “a majority of all the elected members of the National Assembly” in accordance with Article 106 (6) of the Constitution of Guyana and when she held that Persaud validly and lawfully voted in favour of the motion despite having found that he was not capable of being lawfully nominated for election to the National Assembly.
They also contend that the CJ erred in law when she did not find that the no-confidence motion and Resolution 101 were unconstitutional and constituted an unlawful and unconstitutional Act by the National Assembly; when she did not find that the Constitution of Guyana conferred on the Court the Jurisdiction to ensure that votes by members of the National Assembly on a motion of no-confidence are in fact and law made by validly elected members of the National Assembly and she held that the Court had no Jurisdiction to entertain the issues raised on the Fixed Date Application and consequently refused to grant certain Declarations sought.
Further, they said that the CJ erred when she relied on the Authorities of ELSROY NATHANIEL DORSET v. ASTAPHAN SKBC 2007/0259 and ATTORNEY GENERAL OF GRENADA v. PETER CHARLES DAVID GDAHCV2006/0018, in that those Authorities were decided in the context of Constitutions “materially different” to the Constitution of Guyana.
Forde and Joseph contend further that the CJ erred when she failed to appreciate the significance of the fact that at the date of the institution of the Fixed Date Application, Persaud was not a sitting member of
the National Assembly; when she did not find that the nomination and purported election of Persaud to the National Assembly was void; when she construed the Fixed Date Application, as filed as a challenge to the election of Persaud as opposed to a legitimate constitutional challenge to the casting of a vote by him on the motion when disqualified from the National Assembly; and when she failed to have regard to the scheme of the provisions of the Constitution applicable to the disqualification of a person to be elected as a member of the National Assembly provided for in Articles 155 and 156 of the Constitution of Guyana and the consequences of such disqualifications.
Further, the attorneys contend that the CJ erred in law when she failed to have regard to the provisions of Article 156 (1) (d) of the Constitution of Guyana, in that the disqualifying acts referred to in Article 156 (1) (d) of the Constitution of Guyana includes the disqualifying act set out in Article 155 (1) (a) of the Constitution of Guyana.
They state too that errors in law were made when Justice George-Wiltshire failed to give effect to the purpose and intent of Articles 155 and 156 of the Constitution of Guyana, which was to ensure and prevent persons with foreign loyalties and obligations from ever being or becoming a member of the National Assembly; when she failed to find that Article 155 (1) (a) and Article 156 1 (d) of the Constitution of Guyana operated to prevent an unqualified person being nominated and standing as a candidate for election to the National Assembly from becoming a member of the National Assembly; and when she failed to find that Articles 155 (1) (a) and 156 1 (d) of the Constitution of Guyana, by operation of law, vacates the seat of an unqualified person even if purportedly elected to the National Assembly pursuant to Section 98 of the Representation of the People Act Cap. 1:03.
According to the duo, the judge erred in law when she failed to find that Article 165 (2) of the Constitution of Guyana was in the nature of Ouster Clause, which permitted enquiry by the Court to determine whether any unconstitutional act existed in the proceedings of the National Assembly and to save only lawful acts and proceedings of the National Assembly from invalidation; when she held that the Fixed Date Application as filed was seeking to invoke the Jurisdiction conferred on the Court by Article 163 of the Constitution of Guyana; and when she misconstrued the provisions of Article 163 (1) of the Constitution of Guyana to mean that all issues relating to the qualification of a person to be elected to the National Assembly as well as the tenure of seats of members of the National Assembly had to be determined pursuant to Article 163 of the Constitution of Guyana.
Additionally, they said that the Learned Judge erred in law when she failed to consider arguments presented to the Court.
In the second Notice of Appeal, which deals with the vote count, Forde and Joseph contend that the CJ erred in law when she failed to construe the word “vote” in the phrase “vote of a majority of all the elected members of the National Assembly…” in Article 106 (6) of the Constitution of Guyana.
They argue too that she also erred when she found that the principle in HUGHES v. ROGERS No. 99 and 101 of 1999 Anguilla, was only applicable where the Constitution of Guyana refers to the members in factional terms and when she found that the no-confidence motion was lawfully passed by a majority of 33:32 votes in accordance with Article 106 (6) of the Constitution of Guyana.
The government has been under pressure to call elections in wake of the passage of the motion. In the last week, there have been calls by the United Nations, the European Union and the Private Sector Commission for it to uphold the constitution, following the Chief Justice’s rulings last week.
Government, however, has maintained that it will be business as usual until its appeals are settled and up to Sunday, at the commissioning of the PNCR’s office at Vreed-en-Hoop, in Region 3, President David Granger gave no indication that the Cabinet had resigned, despite the court’s ruling that it should have immediately after the vote was taken and the motion declared passed. Instead, he told his cheering supporters that the government will challenge the motion all the way to the Caribbean Court of Justice (CCJ).
It is expected that when the appeals come up for hearing, the court will be asked to grant a stay of the CJ’s judgement and a conservatory order to preserve the status quo.