The Caribbean Court of Justice (CCJ) has already given a clear indication of its liberal and purposive attitude to constitutional interpretation in the Richardson case last year in which the constitutionality of the two-term presidential limit was challenged. Despite a majority Court of Appeal decision declaring the amendment to the Constitution limiting a President to two terms, and an apparently unassailable argument before the CCJ, supporting the Court of Appeal’s decision, the CCJ would have none of it. In a majority decision, it upheld the amendment thereby sparing Guyanese the potential of a life President, which the amendment was designed to prevent.
In the hearings last week, the two cases heard were the challenges to the appointment of the Chairman of the Elections Commission and to the validity of the no confidence motion passed in the National Assembly on December 21 last which required the Government to call elections by March 21 but which it had steadfastly refused to do on the flimsy argument that it was awaiting rulings from the court.
In the case of the appointment of the Chairman of the Elections Commission, the issues that took centre stage during the arguments were consultation and accountability. Should there have been consultation between the President and the Leader of the Opposition prior to the latter providing a list of nominees so that the parties can agree to which names are not unacceptable to the President? And is the President required to give reasons for the rejection of a list?
These arguments were advanced with compelling lucidity by Senior Counsel Douglas Mendes of Trinidad and Tobago, representing Zulficar Mustapha of the PPP, who is the claimant/appellant in the case. While the judges were questioning, they appeared to be broadly neutral. Senior Counsel Hal Gollop and Ralph Thorne of Barbados representing the Government were subjected to keen questioning. If it turns that the CCJ rules in favour of consultation and transparency, it will mark a substantial advance to the dimensions of “meaningful consultation” hitherto applied in Guyana, the import of which has been a subject of charged debate in Guyana since Independence in 1966.
The major issue in the no confidence motion case, of course, is the validity of the motion passed on a 33-32 vote, the argument being that a vote of 34-31 is required for a majority, described as an absolute majority, being a majority of all the members National Assembly. The judges appeared to reject, with occasional impatience, the argument that a 34-vote majority is required.
There were other arguments of equally doubtful cogency. Charandass Persaud, venomously assailed as an “imposter,” a “usurper” and by other epithets, by lawyers representing the Government’s interests, for sitting in the National Assembly while a dual citizen, apparently forgot that Carl Greenidge, Joe Harmon, Rupert Roopnarine and Dominic Gaskin, Ministers of Government, were all as guilty as Charandass Persaud. The argument was that because he was a dual citizen, he was not a lawful member of the National Assembly and did not have, and never had, a vote. Those defending the validity of the no confidence vote countered with the argument that unless a member’s right to sit in the National Assembly is challenged within 28 days of the election results under the National Assembly (Validity of Elections) Act, his or her status is unimpeachable and his or her vote is valid.
Other arguments were that only the Government can table a confidence (as opposed to a no confidence) motion as provided for in article 106(6) of the Constitution and that that once Charandass Persaud decided not to support his List, he was required to inform the Speaker – in other words, he was prohibited from voting against his list on the no confidence motion or on any other matter. The lawyers who advanced these arguments were subjected to searching questions for the judges. They struggled without success to explain the purpose of article 106(6) providing for a confidence vote if the government could not be defeated.
The President of the Court, in response to the arguments that house to house registration is ongoing and that elections cannot be held until November, had enquired whether it was not the duty of the Elections Commission to always be prepared to hold elections within three months having regard to the possibility of a no confidence motion being passed. Relevant, but not mentioned by the President, is the fact that the President of Guyana can at any time dissolve the National Assembly and call elections and, therefore, that was a paramount duty of the Elections Commission, even if it did not have a perfect list of voters.
Two very important legislative provisions were referred to. Section 22 of the Election Laws (Amendment) Act provides that the Elections Commission can by order amend the Representation of the People Act or the National Registration Act if they present any difficulty in complying with the Act. It also provides for a non-resident electoral roll to be constituted. The effort of the Elections Commission to purge the new list being compiled of non-residents is therefore questionable and is the subject of a court case. This power will enable the Elections Commission to extend the life of the list which expired on April 30 last so that it can be used for the elections.
The other provision of importance is section 6(4) of the National Registration Act which provides for continuous registration, and not house to house registration, which is apparently being conducted, unlawfully according to the section. The section also provides for verification of the list by any means determined by the Commission. The Elections Commission did not respond to these arguments but he case ended with the President of the Court informing Mr. Marcus that if they overrule the decision of the Court of Appeal, they will require to hear arguments from him. Mr. Marcus had raised in argument that the Elections Commission needed funds. He was apparently not instructed that the recent budget has provided $5 billion for elections, as revealed in court.