Speaker erred in rul­ing no-con­fi­dence mo­tion passed – AG says

-ad­vises gov’t to seek re­ver­sal

Stabroek News Sunday - - FRONT PAGE - By Than­deka Per­ci­val

At­tor­ney Gen­eral Basil Wil­liams has ad­vised gov­ern­ment that Speaker of the Na­tional Assem­bly Dr Bar­ton Scot­land erred in rul­ing that the PPP/Cspon­sored no-con­fi­dence mo­tion against the gov­ern­ment was car­ried and has urged that the Speaker be in­vited to re­verse the rul­ing.

“The quin­tes­sen­tial fact is that there has been an er­ror on the part of the Speaker in rul­ing that the vote was car­ried. The in­eluctable con­clu­sion is that the vote was im­proper and un­con­sti­tu­tional. The Con­sti­tu­tion’s ethos and norms must be main­tained in or­der that Par­lia­ment do not act or pur­port to act in a man­ner sub­ver­sive to the Con­sti­tu­tion,” Wil­liams said in a Le­gal Mem­o­ran­dum sub­mit­ted to the gov­ern­ment and which was seen by the Sun­day Stabroek.

Op­po­si­tion Leader Bhar­rat Jagdeo last night dis­missed the Le­gal Mem­o­ran­dum as the “lat­est act of des­per­a­tion of a power drunk group who wish to cling to power at all cost and in the process, to sub­vert and tram­ple upon our Con­sti­tu­tion, the in­tegrity of the Na­tional Assem­bly and in­deed, the Rule of Law”.

Jagdeo had on Fri­day warned of “in­sta­bil­ity” in the coun­try should there be a re­ver­sal of the ac­cep­tance of the De­cem­ber 21 no­con­fi­dence vote. For­mer APNU+AFC par­lia­men­tar­ian Char­ran­das Per­saud had de­fected from the gov­ern­ment benches and voted in sup­port of the mo­tion which was passed 33-32 against the gov­ern­ment. Jagdeo had said that the PPP would not ac­cept any re­ver­sal.

Wil­liams’ con­clu­sion rests on sev­eral grounds in­clud­ing the ar­gu­ment first ad­vanced by at­tor­ney Nigel Hughes that a ma­jor­ity of all elected mem­bers in the 65-mem­ber House is 34 rather than 33. Other ar­gu­ments raised in­clude that Per­saud, a Cana­dian cit­i­zen, by ac­tively ac­knowl­edg­ing his al­le­giance to a for­eign power by us­ing his Cana­dian pass­port to travel, is dis­qual­i­fied from sit­ting in the House and cast­ing a vote.

Ac­cord­ing to Wil­liams, there was a mis­cal­cu­la­tion of the ma­jor­ity of all elected mem­bers as re­quired un­der Ar­ti­cle 106(6) of the Con­sti­tu­tion for the gov­ern­ment to be de­feated on a vote of no-con­fi­dence.

“In or­der for the gov­ern­ment to be de­feated on a vote of con­fi­dence, 34 or more votes of all the elected mem­bers in favour of the mo­tion was re­quired in­stead of 33. This as­ser­tion is grounded in es­tab­lished Par­lia­men­tary prece­dent and prac­tice and case law in the Com­mon­wealth,” Wil­liams said.

He said that the Speaker now has to con­sider whether 33 votes in favour of the mo­tion of no-con­fi­dence amounted to a ma­jor­ity of all elected mem­bers in ac­cor­dance with Ar­ti­cle 106(6) of the Con­sti­tu­tion, and whether the mo­tion was passed in ac­cor­dance with Ar­ti­cle 106(6).

Ar­ti­cle 106(6) pro­vides that the “Cabi­net in­clud­ing the Pres­i­dent shall re­sign if the Gov­ern­ment is de­feated by the vote of the ma­jor­ity of all elected mem­bers of the Na­tional Assem­bly on a vote of con­fi­dence.”

Wil­liams also noted that Ar­ti­cle 168 which deals with vot­ing on mo­tions gen­er­ally, pro­vides that “Save as oth­er­wise pro­vided by this Con­sti­tu­tion, all ques­tions pro­posed for de­ci­sion in the Na­tional Assem­bly shall be de­ter­mined by a ma­jor­ity of the

votes of the mem­bers present and vot­ing.”

Point­ing to the re­quire­ments of a “ma­jor­ity of all elected mem­bers of the Na­tional Assem­bly” as dis­tinct from “a ma­jor­ity of the votes of the mem­bers present and vot­ing” as out­lined in the re­spec­tive Ar­ti­cles, the AG rea­soned that the con­sti­tu­tional re­quire­ment for vot­ing on a mo­tion of no-con­fi­dence is dis­tinct from vot­ing on the pas­sage of leg­is­la­tion and or­di­nary mo­tions in Par­lia­ment.

“The framers of the Con­sti­tu­tion by re­quir­ing the vote of a ma­jor­ity of all the elected mem­bers of the Na­tional Assem­bly have set the re­quire­ment as an ab­so­lute ma­jor­ity,” Wil­liams said, em­pha­sis­ing that it is clear that the in­ten­tion of Ar­ti­cle 106(6) is that there must be a ma­jor­ity of all the elected mem­bers of the Na­tional Assem­bly as a vote of con­fi­dence falls out­side the am­bit of Ar­ti­cle 168.

He noted that the pas­sage of leg­is­la­tion and mo­tions out­side of Ar­ti­cle 106(6) pro­ce­du­rally only re­quires a vote of those mem­bers present and vot­ing.

Ap­pel­late

Wil­liams cited two cases in sup­port in­clud­ing the 2013 ap­pel­late rul­ing in the case of Kil­man Kil­man v Speaker of Par­lia­ment of the Repub­lic of Van­u­atu on the mat­ter of a closely con­tested no-con­fi­dence mo­tion. The Court ruled that “if the mo­tion re­ceives at least one half plus one, it re­ceives a ma­jor­ity of the mem­bers of par­lia­ment…this is what the con­sti­tu­tional framers in­tended in the in­ter­est of sta­ble gov­ern­ments.”

The case sought to in­ter­pret Ar­ti­cle 43(2) of that coun­try’s con­sti­tu­tion which states that if (a no con­fi­dence mo­tion) is sup­ported by an ab­so­lute ma­jor­ity of the mem­bers of Par­lia­ment, the Prime Min­is­ter and other Min­is­ters shall cease to hold of­fice forth­with but shall con­tinue to ex­er­cise their func­tions un­til a new Prime Min­is­ter is elected.

Van­u­atu’s Par­lia­ment con­sists of 52 mem­bers as op­posed to Guyana’s 65mem­ber House. Ac­cord­ing to Wil­liams, math­e­mat­i­cally half of all the elected mem­bers of the cur­rent Na­tional Assem­bly would re­sult in a frac­tion of 32.5. He said that there are ju­di­cial au­thor­i­ties in the Com­mon­wealth to show that where a num­ber re­sults in a frac­tion, the next high­est whole num­ber would rep­re­sent the ma­jor­ity.

“In the in­stant case as half of 65 re­sults in the frac­tion of 32.5, that fig­ure should then be rounded to the next whole num­ber be­ing 33 which would rep­re­sent half of the elected mem­bers. In ac­cor­dance with prac­tice ap­pli­ca­tion of the mean­ing of ma­jor­ity means that ‘1’ must now be added to ‘33’ to cal­cu­late a ma­jor­ity,” he ar­gued.

Con­se­quently, he said, the ma­jor­ity le­gally re­quired in Ar­ti­cle 106(6) for a vote of no con­fi­dence to pass shall be 34 or more of elected mem­bers of the Na­tional Assem­bly.

An­other ar­gu­ment ad­vanced is in re­la­tion to Per­saud’s Cana­dian cit­i­zen­ship. Since nom­i­na­tion day in 2015 and up to the time of vot­ing on the no-con­fi­dence mo­tion, Per­saud held a pass­port and pos­sessed the rights and obli­ga­tions as a cit­i­zen of Canada.

Wil­liams ar­gues that in keep­ing with Ar­ti­cle 155(1) of the con­sti­tu­tion which pro­vides that “No per­son shall be qual­i­fied for elec­tion as a mem­ber of the Na­tional Assem­bly who: (a) is by virtue of his or her own act, un­der any ac­knowl­edge­ment of al­le­giance, obe­di­ence or ad­her­ence to a for­eign power or state,” Per­saud was not qual­i­fied for elec­tion as a mem­ber of the Na­tional Assem­bly. Vol­un­tary It was em­pha­sised that it is not the ow­ing of al­le­giance to the for­eign State by virtue of be­ing a cit­i­zen of that coun­try that is grounds for dis­qual­i­fi­ca­tion from sit­ting in the Na­tional Assem­bly but rather the “vol­un­tary tak­ing of steps to ac­knowl­edge that cit­i­zen­ship that causes the dis­qual­i­fi­ca­tion.”

Case law cited in­clud­ing the Ja­maican case of Dab­doub, Abra­ham v Daryl Vaz, Carl­ton Har­ris and At­tor­ney Gen­eral Claim No. 2007 HCV 03921.

A copy of Per­saud’s Travel Record was ref­er­enced. Stabroek News un­der­stands that the record shows Per­saud us­ing his Cana­dian pass­port for travel on sev­eral oc­ca­sion be­fore and af­ter he as­sumed his

seat in the House.

Wil­liams also raised the is­sue of whether the Speaker can re­verse the rul­ing that the no-con­fi­dence mo­tion was car­ried. He ar­gued that the Speaker can. He said that the Speaker is duty bound to ob­serve the Con­sti­tu­tion as the supreme law of Guyana and if there is an er­ror on the face of a Rul­ing by the Speaker that is con­trary to the Con­sti­tu­tion, that er­ror can be re­vis­ited and cor­rected by the Speaker, with­out the aid of Par­lia­men­tary process, once he recog­nises his con­sti­tu­tional mishap.

With spe­cific re­gards to the no-con­fi­dence mo­tion, Wil­liams said that the Speaker can re­visit and re­verse his de­ci­sion on the prin­ci­ple that Ar­ti­cle 106(6) was not com­plied with in that the req­ui­site ma­jor­ity ought to have been 34. He ar­gued that the Speaker’s rul­ings must ac­cord with what the Law re­quires and in this par­tic­u­lar in­stance, “the rul­ing has to ac­cord with what is con­sti­tu­tion­ally re­quired as a ma­jor­ity in ac­cor­dance with Ar­ti­cle 106(6).”

Mean­time, Wil­liams also ad­dressed the ef­fect of the sub ju­dice rule should the Speaker’s rul­ing be chal­lenged in the courts. Stand­ing Or­ders 20 (1)(i)(a), 26(g) and 41(2) state that ques­tions, mo­tions and ref­er­ence shall not be made to matters that are sub ju­dice or un­der ad­ju­di­ca­tion by the courts. Wil­liams sub­mit­ted that re­view of the rul­ing by the Speaker and any sub­se­quent de­bate that fol­lows does not of­fend against the sub ju­dice rule. He cited sev­eral prece­dents in this re­gard.

On the ques­tion of whether the Speaker’s rul­ing on the vote can be quashed by the courts, Wil­liams ar­gued that if the vote is con­trary to the Con­sti­tu­tion, the court can in­ter­vene and quash the Speaker’s de­ci­sion. He cited sev­eral rul­ings in sup­port and said “the golden thread that runs through all the cases is that once the Speaker acts in a man­ner con­trary to the con­sti­tu­tion, the Courts are duty bound to void his de­ci­sion.” “In this case the vote in Guyana is con­trary to Ar­ti­cle 106(6) and must be set aside as be­ing ul­tra vires and re­pug­nant to the Con­sti­tu­tion,” Wil­liams ar­gued. He noted that in one case in The Ba­hamas, the court in­di­cated that it can in­ter­vene where ir­repara­ble harm would be caused. “The vote in the Guyana Par­lia­ment is an in­stance in which ir­repara­ble harm would be caused and re­quires the Court’s in­ter­ven­tion,” Wil­liams sub­mit­ted.

In his state­ment last night, Jagdeo said that it would be re­called that the Speaker has al­ready ruled that the mo­tion was car­ried and con­se­quently, the Clerk of the Na­tional Assem­bly has al­ready is­sued a res­o­lu­tion pur­suant to the said mo­tion. He also pointed out that on the very night of the 21st De­cem­ber, 2018, the Prime Min­is­ter in­formed the press that the Gov­ern­ment was de­feated by the no con­fi­dence mo­tion and com­mit­ted that the Gov­ern­ment would com­ply with the en­su­ing con­sti­tu­tional process of go­ing to elec­tions within 3 months.

Fur­ther, the fol­low­ing day the Pres­i­dent con­ceded that the Gov­ern­ment was de­feated by the no con­fi­dence mo­tion and pub­licly an­nounced the Gov­ern­ment’s pre­pared­ness to com­ply with the con­se­quen­tial con­sti­tu­tional pre­scrip­tion.

Jagdeo de­clared that the Speaker has no fur­ther role to play in re­la­tion to the no con­fi­dence mo­tion and has no re­view pow­ers what­so­ever over the al­ready com­pleted process.

He added that the Le­gal Mem­o­ran­dum “con­sti­tutes an amal­gam of mis­con­ceived and ill-con­ceived le­gal ar­gu­ments and the ci­ta­tion of a host of case law au­thor­i­ties that are ab­so­lutely ir­rel­e­vant to the propo­si­tions which they pur­port to sup­port. In the cir­cum­stances, we re­ject this “Le­gal Mem­o­ran­dum” as vex­a­tious, friv­o­lous and wholly ir­rel­e­vant. The Speaker is urged to do like­wise.

“Again the Leader of the Op­po­si­tion calls on the Gov­ern­ment to im­me­di­ately be­gin the prepa­ra­tions for the hold­ing of elec­tions in ac­cor­dance with Ar­ti­cle 106 of the Con­sti­tu­tion”, Jagdeo stated.

(Ter­rence Thomp­son photo)

And the win­ner is….These `A’ Field Sophia chil­dren were test­ing their sprint­ing skills yes­ter­day.

Basil Wil­liams

The no­ti­fi­ca­tion of the suc­cess of the mo­tion which was trans­mit­ted to Op­po­si­tion Leader Bhar­rat Jagdeo by the Clerk of the Na­tional Assem­bly.

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