RAMJATTAN v NAGAMOOTOO [2019] AFC 1


As the general elections draw near, and the speculation surrounding the choice by the PPP’s of its presidential candidate is over, attention is now focused on the AFC’s choice of its prime ministerial candidate. The AFC apparently anticipates that there will be another coalition with APNU and that it will be offered the opportunity to choose the prime ministerial candidate. But no public indication has been forthcoming about the renewal of the coalition.

The Cummingsburg Accord, which is the foundation document for the coalition, has expired and the parties went their separate ways for the local government elections. Even if there is another coalition the prime ministerial candidate may well come from APNU. Amna Ally and Ronald Bulkan are available. APNU may well consider that the performance of the AFC at the local government elections, obtaining only four percent of the votes, does not qualify it for the prime ministerial slot. It could propose that the AFC now only deserves ministerial seats and far less than the forty percent agreed to in the Cummingsburg Accord.

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THE STATUS QUO NO LONGER EXISTS AND THERE CAN BE NO BUSINESS AS USUAL. A NATIONAL GOVERNMENT THE ONLY WAY OUT.


The Chief Justice ruled that the no confidence motion was lawfully passed on December 21 in the National Assembly by a 33-32 vote, and that the vote of Charandass Persaud was lawful, notwithstanding that as a dual citizen he was unlawfully occupying his seat in the National Assembly. Consequent upon those findings, the Chief Justice ruled that the Cabinet automatically resigned on the passing of the no confidence motion. The Chief Justice granted neither a stay of execution nor a conservatory order which would have preserved the status quo ante. Yet the Government announced that the status quo remained and Government business will be conducted as usual.

This statement, disrespectful and defiant of the Chief Justice’s ruling, presumably means that the Cabinet will continue to meet and function and take decisions affecting the governance of Guyana, even though it is unlawful to do so. In effect, the Government’s functions must be limited to the implementation of existing decisions as no new ones can be made by the non-existent Cabinet. The statement also means that those Members of the National Assembly who hold dual citizenship will continue to occupy their seats even though the effect of the Chief Justice’s ruling in relation to CharrandassPersaud’s means that their membership is unlawful. Such bold, brazen and open defiance of lawful authority, of the Constitution and of the rule of law by a Government, have never been seen in Guyana after the Burnham era, or in the Commonwealth Caribbean, or in any democratic country for that matter.

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ARE A FEW MORE MONTHS IN OFFICE WORTH THE TROUBLE?


By virtue of the now familiar Article 106(7) of the Constitution of Guyana, elections are due to be held within three months of the passage of a no confidence motion in the National Assembly on December 21, 2018, that is, by the end of March. The court has no power to alter the Constitution by extending the time. Only the National Assembly, by a two-third majority, can do so.

The first step after the passage of the no confidence motion ought to have been a directive from the President to the Chair of the Elections Commission to provide a timetable for the holding of elections before the end of March, 2019. This is what the Opposition Leader, Mr. Bharrat Jagdeo, ought to have insisted on at his meeting with President Granger on January 9. Instead the Opposition allowed itself to be ensnared in a charade of fruitless consultation with the Elections Commission. That it would have been fruitless was later signaled by a chorus that a new electoral list was neededand by a delay in the meeting. The most recent, flimsy, excuses are that time is needed for the training of elections day staff and the mobilization of supplies. These can be accomplished in weeks. Existing trained staff for local government elections only need to be upgraded and supplies can be acquired by emergency procurement.

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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.”

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THE PRESIDENT AND CABINET MUST RESIGN IN ACCORDANCE WITH THE CONSTITUTION


Both the President and Prime Minister accepted the outcome of the confidence vote. The President said that the Government will abide by it and “facilitate the smooth functioning of the general and regional elections…”. The Government has now changed his mind, will question the Speaker’s ruling, has reneged on his commitment that “the relevant constitutional provisions will kick in” and has grabbed a flimsy lifeline thrown to the Government by Mr. Nigel Hughes. Ridiculously puerile excuses by the Prime Minister, reflecting a desperate attempt of the Government to stay unlawfully in office in violation of all norms of democratic, constitutional and lawful conduct, were relied on.

The Speaker will now be asked to act as a policeman and investigate whether Mr. Charrandass Persaud was bribed, and also whether the majority should have been 34 and not 33, having repeatedly ruled since 2015, and having been accepted by the Government since 2011, that a majority is 33. These are ominous developments, which will bring ridicule to Guyana and to the APNU+AFC Government, derail the democratic process and have grave implications for Guyana’s future and for Parliamentary democracy.

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