The implication of the CCJ’s consequential orders for business in Guyana A presentation by Mohabir A. Nandlall MP, Attorney-at-Law at an American Chamber Guyana (AmCham) event at the Guyana Marriott 5 th August 2019 It is now recognised as a fundamental truth that there is an inexorable causal nexus between the rule of law and economic and social progress in any given society. A most peripheral glance around the globe will result in the ineluctable conclusion that nations which subscribe to the rule of law and whose legal system is strong, independent, competent and respected, are the nations that are flourishing economically and in turn, socially. Therefore, it can hardly be disputed that obeisance to the rule of law is a sine qua non of development. The rule of law is a multi-dimensional concept. But a strong, independent judiciary whose decisions bind those to whom they relate, constitutional compliance, adherence to the doctrine of separation of powers, respect for the inalienable basic human rights of the citizenry and a culture of respect for the laws of the land generally, are all indispensable ingredients of that aggregated concept commonly referred to as ‘the rule of law’. One famous Indian jurist, V.G Ramachandran views the rule of law as “ the cornerstone of civilized life itself…the last bulwark of a state is its courts of justice. In the free world of today, wherever responsible governments exist, concept of special respect to seats of justice, attended with punishment in the case of contumacious behaviour, prevails. ” A No-Confidence Motion (NCM) is a permanent fixture in the democratic architecture of constitutions the world over. The first NCM in recorded English history was passed in the House of Commons a gainst Her Majesty’s Government nearly 250 years ago. When Britain granted independence to its over 50-odd colonies, it inserted in their constitutional instruments, drafted at Westminster, a power in their parliaments to pass a NCM against their sitting Governments with the uniform consequences being that the 1 | P a g e
Government would have lost the support of the people and must return to the electorate within a time specified, either for a renewal of its mandate, or for a new Government to take its place. My research informs me that NCMs were passed in India, Canada, the United Kingdom, in several African countries, Australia and of course, right here in the Caribbean. In its over 250 years, of parliamentary democracy, there is no recorded instance where a Government has refused to abide by the constitutional consequences of a NCM being passed, until on December 21 st , 2018 in the Cooperative Republic of Guyana, South America. An unenviable distinction indeed. Articles 106 (6) and 106 (7) of the Guyana Constitution are expressed in language whose simplicity and clarity can hardly be disputed by the rational mind. It reads thus, 106 (6)- “The Cabinet including the President shall resign if the Government is defeated by the vote of a majority of all the elected members of the National Assembly on a vote of confidence.” 106 (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.” Despite their clarity and simplicity, these two constitutional provisions have violently lacerated the mental psyche of this nation for the past eight months. Only last Friday, no other than the Attorney General of the land argues before the Chief Justice that there is no need for Cabinet to resign. It does not require the acumen of a genius to conclude that it is this type of extraordinary legal advice that the Government receives which results in me speaking to you this evening. It is now a fact of public notoriety that the NCM was passed since December 21, 2018 and accordingly, Articles 106 (6) and 106 (7) was immediately triggered. To every rational mind, the Government was defeated, the Cabinet inclusive of the President was 2 | P a g e
required to resign, a date for elections was required to be fixed within three months thereof and the Government was to remain in Office with limited powers until a new President is elected. As I said, those consequences were clear to every rational mind but not those in the Government. They took the unprecedented move of returning to the Speaker to ask him to reconsider the vote. Naturally, he refused to do so; for he had no authority to do so. In contumacious defiance and in willful disobedience to the clear language of the constitution, they ran to the judiciary for respite. The Honourable Chief Justice rejected them; Her Honour upheld the validity of the NCM and ruled that Cabinet inclusive of the President was resigned on December 21, 2018 and the other prescriptions outlined in Article 106 (6) and 106 (7) of the Constitution, must be carried out. The Government obdurately refused to comply with the Chief Justice’s ruling and launched appeals against it. They were able to persuade the Court of Appeal in a 2:1 judgement that 33 votes did not constitute a majority of the 65 members of the National Assembly and therefore the No-Confidence Motion was not carried. Naturally, the matters culminated at the Caribbean Court of Justice, the nat ion’s apex court. That court had no difficulty whatsoever, in dismantling and rejecting every legal contention which they advanced and ruled that the NCM was validly passed. By this time, GECOM was added as a party in clear recognition of its role in the holding of the elections which Article 106 (7) mandates. The CCJ delivered its judgement on June 18, 2019. One June 12, 2019, the then Chairman of GECOM whose appointment was also being challenged at the CCJ, and the decision of that case was also fixed for June 18, decided to issue an order to commence House to House registration. This process, by GECOM’s own work plan, was scheduled to last some 120 days. From its conclusion, its work plan says that it will take another 119 days before a list of electors can be extracted and prepared, thereby, effectively putting the possible holding of an election until June 2020. No one can convince me that this process was not embarked upon to intentionally frustrate and undermine any judgement the CCJ was going to render on June 18. 3 | P a g e
Similarly, no one can convince me that this decision of GECOM was not taken to carry out the directives of the Government. So you have GECOM, a creature of the constitution, which is subservient to the constitution and most naturally bound by the orders of every court including the apex court, taking a decision that not only flouts the clear language and spirit of the constitution but a decision that was also intent to defeat and disobey the decision of the highest court of the country. On June 18, when the court delivered its decision, it invited the parties to make submissions in terms of what consequential orders it should make. On July 12, the CCJ issued the following consequential orders: 1. … 5. The National Assembly properly passed a motion of no confidence in the Government on 21 December 2018; 6. Upon the passage of this motion of no confidence in the Government, the clear provisions of Article 106 immediately became engaged. Quotes from the ruling ▪ The judiciary interprets the Constitution. But, as we intimated in our earlier judgment, these particular provisions require no gloss on the part of the Court in order to render them intelligible and workable. Their meaning is clear and it is the responsibility of constitutional actors in Guyana to honour them. Upon the passage of a vote of no confidence, the Article requires the resignation of the Cabinet including the President. The Article goes on to state, among other things, that notwithstanding such resignation, the Government shall remain in office and that an election shall be held “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 …” The Guyana Elections Commiss ion (“GECOM”) has the responsibility to conduct that election and GECOM too must abide by the provisions of the Constitution. 4 | P a g e
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