AG seeks stay of confidence vote rulings
-says elections funding can’t be released without Cabinet
Attorney General (AG) Basil Williams SC on behalf of government yesterday asked the Court of Appeal for orders to stay the effects of two of Chief Justice Roxane George-Wiltshire’s judgments on the December 21st no-confidence vote against government and to keep the president, the Cabinet and government in place until the appeals he filed last week are heard and determined.
Williams has applied to the court to grant the orders pending the appeal of the decision in the action he brought against Speaker Dr. Barton Scotland and Opposition Leader Bharrat Jagdeo and the decision in the action initiated by chartered accountant Christopher Ram. One of his arguments is that without a Cabinet, no funding can be made available to the Guyana Elections Commission (GECOM) for the holding of elections. Identical reasons were also listed in the affidavits in support by State Counsel Raeanna Clarke.
In each case, the court is being asked to grant an order for an interim stay of the effect of the judgment and order(s) of Justice George-Wiltshire until the hearing and determination of the Summons filed; an order for a stay of the effect of the judgment and order(s) until the hearing and determination of the appeal filed, a conservatory order, preserving the status quo ante that the President, Cabinet and all Ministers of the Government remain in office until the hearing and determination of the appeal; and such further or other order as the Court may deem just.
Up to press time last evening, there was no word on when the court intends to hear the appeals filed by Williams last Tuesday and those filed by attorneys Roysdale Forde and Olayne Joseph on behalf of General Secretary of A Partnership for National Unity (APNU) Joseph Harmon last Thursday.
In the Ram matter, Clarke in her affidavit said that she believes that the judge erred and misdirected herself in law in several instances, including the calculation of the vote and when she said that the passage of the motion effected the immediate resignation of the Cabinet.
She said that she has been advised that the framers of the Constitution by requiring the vote of a majority of all the elected members of the National Assembly as set out in Article 106 (6) have set the requirement as an absolute majority instead of a simple majority and that the absolute majority is calculated as half plus one and where mathematically, half of all the elected members of the Parliament would result in a fraction the method of calculation of the absolute majority is that the fraction is rounded to the next whole number and one added to result in a number greater than half.
Clarke said that she was further advised by her attorneys that the National Assembly comprises 65 members which is an uneven number and therefore using the half plus one principle would result in 34 being the absolute majority.
“I am further advised by my Attorneysat-Law and verily believe that 33 is the number when calculated results in the absolute majority for an even number 64 member Parliament and cannot therefore also be the same number for a 65 member Parliament,” she said adding that the 33 votes in favour of the motion did not amount to a majority of all the elected members of the National Assembly.
She said that she was advised that in the circumstances the motion of no-confidence is void and has no legal effect to defeat the Government on a vote of noconfidence in accordance with Article 106 (6) of the Constitution.
She further contended that the effect of Article 106 (2) is that once there is a Government, “there must be a Cabinet; once there is a President there must be a Cabinet, and once there is a Parliament there must be a Cabinet. Therefore insofar as Article 106 (6) purports to sever the connection between Cabinet and Government it is inconsistent with the clear provisions of Article 106 (2).”
That article provides that “The Cabinet shall aid and advise the president in the general direction and control of the Government of Guyana and shall be collectively responsible therefor to Parliament.”
Further she argued that the word “notwithstanding” connects article 106 (7) to article 106 (6) of the Constitution and provides the timeframe for the resignation of the Cabinet which being part of the Government exists as long as the Government exists and the Cabinet would accordingly resign when the Government resigns. Further, she said the time for resignation of the President, Cabinet and Government is when elections are held and the President takes the oath of office following the elections as set out in Article 106 (7). Clarke also made reference to Article 171 (2) of the Constitution
“It is contended that the effect of the ruling of the Chief Justice that Cabinet ceased with immediate effect on the night of the no-confidence motion on 21st December, 2018 will mean that the Government will be unable to introduce any financial bills for passage because in accordance with Article 171 of the Constitution these bills require the recommendation and or consent of the Cabinet signified by a Minister. In these circumstances, the Government will be unable to fund the preparation and holding of elections by Guyana Elections Commission (GECOM) if the effect of the ruling of the Chief Justice is not stayed as prayed for