ATTORNEY General and Legal Affairs Minister, Basil Williams has filed a Fixed Date Application challenging the passage of the no-confidence motion against the government on the basis that the opposition did not secure a majority as required by the Constitution.
He is therefore calling on the court to set aside or nullify the Speaker of the National Assembly’s ruling that the motion was carried. The application, by way of Case stated pursuant to Rule 61:03 of the Civil Procedures Rules, was filed in the High Court on Monday with Speaker of the National Assembly, Dr. Barton Scotland and Leader of the Opposition, Bharrat Jagdeo, the mover of the motion, named as the respondents.
By way of his application, the attorney general is asking the court to determine whether the Speaker’s declaration that the no-confidence motion was carried by a majority in the National Assembly is unlawful, null and void on the basis that its contradicts Article 106 (6) of the Constitution of Guyana.
Article 106 (6) reads: “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.”
On December 21, 2018, the Speaker had declared that the opposition-sponsored motion was passed after 33 Members of Parliament voted in its favour and 32 against; however, some legal luminaries have since argued that the 33 votes did not constitute an absolute majority as required by the Constitution. As such, the attorney general is asking the court to determine if the motion of no-confidence was validly passed or whether the requisite majority of all the elected members of the National Assembly ought properly to be 34 votes.
REMAIN IN OFFICE
He is also seeking an order to allow for the President and all ministers of the government to remain in office on the basis that a majority vote was not duly carried in accordance with Article 106 (6) of the Constitution.
The government, through the attorney general, is therefore seeking an order setting aside or nullifying the Speaker’s ruling that the motion was carried, and another, staying the enforcement of Resolution 101.
A conservatory order preserving the status quo ante that the President and all ministers of the government remain in office until the hearing and determination of the questions is also being sought.
“The Conservatory order is necessary to preserve the status quo ante as Article 106 (7) of the constitution requires that the President and all Ministers of the Government remain in office and hold elections within three (3) months. However, the period for the hearing and determination of the matter may expire before that time,” he explained while justifying the need for the order.
It was further explained that if the court grants the conservatory order it will preserve the status quo ante particularly in the relation to the time of three (3) months that was set in motion for the process of National Elections and the resignation of the President and other ministers of government.
“The stay of the enforcement of the resolution is necessary in order avoid the process being rendered nugatory and in all the circumstances the applicant is satisfied that there exist an arguable case on the questions in controversy with a realistic prospect of success on the part of the government,” he noted.
Article 106 (7) of the Constitution provides that “notwithstanding its defeat, the government shall remain in office and shall hold elections in three months, or such longer period as the National Assembly 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.”
34 VOTES REQUIRED
In laying his grounds for the case, the attorney general alluded to the fact that the National Assembly has 65 members while arguing that mathematically, half of all the elected members of the current National Assembly would result in a fraction of 32.5.
“In the instant case as half of 65 results in the fraction of 32.5, that figure should then be rounded to the next whole number being 33 which would now represent half of the elected members, the majority thereby being a number greater than half means that ‘1’ ought to have been added to the whole number ‘33’ to calculate an absolute majority of 34,” he continued.
He maintained that with the total elected members of the National Assembly being 65 members, the majority half plus one or a vote of 34 or more members.
On December 21, 2018 when the motion was put to a vote, the attorney general contended that it was not validly passed by 34 or more of all the elected members of the House.
“In the circumstances the motion of no confidence is void and has no legal effect to defeat the government on a vote of no confidence in accordance with Article 106 (6) of the Constitution,” he stated.
He noted that the Speaker’s ruling on January 3, 2019 reinforced the necessity for the Court to intervene by giving guidance to the National Assembly in the matter.
“It is in the interest of justice that the Court deals with this Application expeditiously having regard to the imminent consequences which flow from Article 106 (6) and (7) of the Constitution,” the attorney general stated while urging that the matter be dealt with expeditiously.
The matter will be heard on Tuesday January 15, 2019 before Chief Justice (ag) Roxane George-Wiltshire in the High Court. Also on Tuesday, the chief justice will hear another Fixed Date Application which is challenging the validity of the vote cast by Charrandass Persaud in the National Assembly on the basis that he breached the Constitution by having dual citizenship. That application was filed by Compton Herbert Reid, a farmer, through his attorney Rex McKay, S.C.