The Chief Justice ruled last week in the case brought by Christopher Ram in connection with the house to house registration that it is unlawful to remove names from the registration list during the current exercise merely because they are not present at the addresses or had migrated. The stated objective of the house to house registration was to remove the names from what was described as a list ‘bloated’ by 200,000 names. It was not quite clear how the ‘bloating’ occurred, or how the figure of 200,000 was conjured up, but it was assumed that these were persons who had died or migrated.
The Attorney General described the decision of the Chief Justice as a “statement” regarding the removal of persons from the National Register of Registrants and as more like a “suggestion” to the Guyana Elections Commission. It is not an “order,” he said, and the Chief Justice could not have intended to direct GECOM. This must be a hint to GECOM that it can ignore the Chief Justice’s decision and continue the house to house registration.
As is now well known, the Constitution makes no distinction between a ‘simple’ and an ‘absolute’ majority. It refers only to ‘majority.’ But the Court of Appeal ruled that such a distinction exists and under Article 106(6) an absolute majority of 34 out of 65 is required for the passage of a no confidence motion. It defined an absolute majority as half plus one. For a 65-member National Assembly, half is 32½. Since there is no half person, then 32½ has to be rounded up to 33. Then adding one will make an absolute majority of 34.
The Constitution recognizes only a ‘majority’ and a ‘vote of not less than two-third ,’ or the ‘support of not less than two-thirds.’ It does not use the word ‘majority’ when describing the two-third vote, as set out below. Article 168(1) 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.”
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.”
Ivor Archie has been the Chief Justice of Trinidad and Tobago (TT) for ten years and is a prominent judicial personality in the Caribbean. On 12 November 2017 the Sunday Express alleged that the Chief Justice had tried to influence Supreme Court Justices to change their state-provided personal security in favor of a private company with which his close friend, Dillian Johnson, a convicted felon, was associated. On 19 November the Sunday Express published another article alleging that Dillion Johnson was among 12 persons recommended for Housing Development Corporation units by the Chief Justice. On 4 December the Express reported that the Chief Justice, 57, was joined by Dillion Johnson, 36, while on official business abroad (Guyana). Photographs were published apparently showing Johnson lying in a bed and the Chief Justice sitting at the edge, backing the camera, on the telephone and another showing Johnson with a lanyard around his neck holding an identification card allegedly with the printed name of the Chief Justice. The Chief Justice claimed that the photographs were photoshopped.
On 29 November the Law Association of Trinidad and Tobago (LATT) appointed a committee to “ascertain/substantiate” the facts upon which the allegations made against the Chief Justice were alleged to be based. On 30 November the President of the LATT met with the Chief Justice and informed him that having regard to the seriousness of the allegations and his failure to respond, the LATT has decided to investigate the allegations to determine whether they are true or not. The LATT offered the Chief Justice the opportunity to respond to the allegations even though it recognized that it had no power to compel him to do so. It, however, mentioned that it intended to refer its report to the Prime Minister which falls within its statutory mandate.
It has long been recognized that the judiciary and its decisions are not and should not be immune from criticisms. It’s quite a different matter to attribute motives to the judiciary that can be construed as improper such as failing to consider or to implement executive policy. Two contrasting approaches were displayed recently by Mr. Aubrey Heath-Retemeyer, Deputy Director of the State Agency for the Recovery of Assets (SARA) and Minister Khemraj Ramjattan, Minister of Public Security.
Mr. Aubrey Heath-Retemeyer’s, in an interview by KN on June 22, accused the judiciary of resisting the government’s drive to reduce corruption because they are not willing to facilitate SOCU or SARA. He said that there is a “stark disconnection between the judiciary and the thirst of the nation for an end to corruption…I feel that sometimes the legal system here…doesn’t want to be in step with the honest desire of the law enforcement people (like SOCU) to ensure that they get the job done. I feel that if there was a greater sense of urgency and understanding on the part of the legal people and the system, they would be more willing to facilitate what SOCU or SARA would be doing.”