Unlawfully holding on to office

The Speaker of the National Assembly, Dr. Barton Scotland, having declined to reverse his declaration on December 21, 2018, that the no confidence motion against the Government had been carried on a vote of 33-32 in favour, has shifted the arena of contest to the Court.

The constitutional provisions which have been automatically triggered by the passage of the no confidence motion, by now well-known, state: “106(6) The Cabinet including the President shall resign if the Government is defeated by a vote of a majority of all the elected members of the National Assembly on a vote of confidence. (7) Notwithstanding its defeat, the Government shall remain in office and shall hold an election within three months, or such longer period as the National Assembly shall by resolution supported by not less than two-thirds of the votes of all the elected members of the National Assembly determine, and shall resign after the President takes the oath of office following the election.”

Until the resolution is declared by the court to have been unlawfully passed, it remains valid and binding and time is running. Because Article 106(6) provides no time within which the resignation should take place, it should “be done with all convenient speed,” as provided by section 28 of the Interpretation and General Clauses Act. Not yet having acted in compliance with Article 106(6) by resigning, the Cabinet including the President are unlawfully holding on to office. A court would be approbating this illegality if it allows even a temporary respite from compliance with Article 106(6), especially having regard to the fact that it is not the end of the life of the Government. Under Article 106(7) the Government, which includes the Cabinet and President, remain in office until new elections. This obviously means that the resignation is stayed until the next elected President is sworn in.

Minister Ramjattan is reported to have said that there has not been a resignation of the President or the Government nor will there be such a resignation. He said that the country cannot be left without any government at all; “a governance vacuum is never permitted.” He further said that “the Government retains its full panoply of legal powers….and is with jurisdiction to exercise its legal authority.” It is not known if Minister Ramjattan, an experienced lawyer, realizes that Article 106(7) specifically provides that there shall not be a “governance vacuum” and, in fact, emphasizes that the Government will only resign after a President is elected by the election to be held. Also, it is not known if Minister Ramjattan is aware of the “Caretaker Conventions” which apply when a government is facing elections.

The “Caretaker Conventions” apply during the period from the dissolution of the Parliament to the election of the new government. It exists because there is no parliamentary oversight. In summary, the conventions are that no major policy decisions are taken to commit an incoming government or limit its freedom to act, no major contracts or agreements are entered into and the use of government resources in a manner to advantage a particular party is avoided. In our case, the “Caretaker Conventions” should be applied from the moment the no confidence motion is passed because Article 106(6) dictates the resignation of the Cabinet, which suggests a caretaker role for the Government thereafter.

The passage of the Natural Resources Fund legislation and Minister Ramjattan’s remarks signify quite clearly that the Cabinet including the President have no intention of resigning and of observing any caretaker conventions.

Reports suggest that a court case has been filed by Compton Herbert Reid against the Speaker, Charrandass Persaud and the Attorney General seeking to set aside the no confidence vote of December 21, 2018. The ground is that the vote of Charrandass was invalid because he holds a Canadian passport. An order to stay the no confidence resolution is also being sought. The reports make no mention that the motion required 34 votes to be passed.

No doubt Article 165(2) of the Constitution will arise for consideration. It provides that: “The Assembly may act notwithstanding any vacancy in its membership… .and the presence or participation of any person not entitled to be present at or to participate in the proceedings of the Assembly shall not invalidate those proceedings.” This article clearly suggests that an act of the National Assembly is lawful even if a person who is not entitled to be present and to participate in the proceedings does so.

Consideration would no doubt also be given to the right or power of a court to interrupt a constitutional process, set in train by a parliamentary motion, on which a vote was taken and deemed to have been carried. If the power exists, should it be exercised, ad interim, upon an allegation that is prima facie answerable by article 165(2) and in circumstances where the notional applicant, the Cabinet, is committing a continuing wrong by not resigning?

The question will no doubt be: How can a court allow a Cabinet to stay in office when the Constitution, a superior instrument to the court, by which the court is bound, says that it should resign?