Ministry of Legal Affairs

AG wants court to determine absolute majority in no-confidence vote - The Chronicle Newspaper - 8th January, 2019

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Published: 10 January 2019

Attorney General and Legal Affairs Minister Basil Williams Photo by Adrian Narine

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.

Press Statement - 31st December, 2018

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Published: 31 December 2018

PRESS STATEMENT BY HON BASIL WILLIAMS, SC, MP

The Motion of No Confidence

The National Assembly debated the motion of No Confidence on the 21^st December 2018. At the time 65 members of Parliament were in the House and voting. Upon voting a claim for division was made and the Clerk of the National Assembly recorded the result of the vote as 33 for the motion of No Confidence and 32 against the motion.

Following the vote, Speaker of the National Assembly Dr. Barton Scotland announced that the National Assembly will convene on January 3, 2019 to deal with the “consequences” of the vote.

If validly passed the consequences inhere in Articles 106 (6) and (7): to wit-

Article 106 (6) of the Constitution of the Cooperative Republic of Guyana requires that “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.”

Article 106 (7) provides that “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.”

Articles 106 (6) and (7) are to be read together with Articles (61) and (70) (2) of the Constitution.

Article (61) provides for an election to be held on such day within three months after every dissolution of Parliament as the President shall appoint by proclamation.

Article (70) (2) provides that the President may at anytime by proclamation dissolve Parliament.

It is the Government’s position that there was a miscalculation of the majority of all elected members as required under Article 106(6) of the Constitution for the Government to be defeated on a vote of no confidence. 

To this end, a Legal Memorandum was sent to Dr. Barton Scotland, OR, CCH, MP, the Speaker of the National Assembly, setting out the legal issues that we wish for him to consider but not before its contents were unfortunately leaked to the press.  

The APNU+AFC Government of Guyana is concerned with the determination of the following issues: -

(1)  Whether 33 votes in favour of the motion of no-confidence amounted to a majority of all elected members in accordance with Article 106 (6) of the Constitution?

(2) Whether Resolution 101 is constitutional and effective and passed in accordance Article 106 (6) of the Constitution?

(3) Whether Mr. Charrandas Persaud was disqualified to vote as an elected member of the National Assembly?

(4) Whether the Speaker can reverse the ruling that the no-confidence motion was carried?

(5) What is the effect of the sub judice rule should the Speaker’s ruling be legally challenged in the Courts?

(6) Whether the Speaker’s ruling on the vote can be nullified by the Courts?

In relation to those issues the Government contends: -

Issues 1 and 2-

This Government was not defeated by a majority as required under Article 106(6) of the Constitution. In order for the Government to be defeated on a vote of confidence, 34 or more votes of all the elected members in favour of the motion were required instead of 33. This assertion is grounded in established Parliamentary precedent and practice and case law in the Commonwealth.

The ordinary and legal meaning of a majority is a number greater than half. According to the Merriam Webster Dictionary (1828), “majority rule” is defined as:

“A political principle providing that a majority usually constituted by fifty percent plus one of an organized group will have the power to make decisions binding upon the whole.”

The National Assembly comprises 65 members. Mathematically, half of all the elected members of the current National Assembly would result in a fraction of 32.5. There are judicial authorities to show that where a number results in a fraction it is rounded up. In the instant case as half of 65 results in the fraction of 32.5, this figure should then be rounded to the next whole number being 33 which would now represent half of the elected members. In accordance with the practical application of the meaning of majority ‘1’ must now be added to ‘33’ to derive at a majority of 34 votes.

It must be noted that the Constitutional requirement for voting on a motion of no-confidence is distinct from voting on the passage of legislation and ordinary motions in Parliament. The framers of the Constitution by requiring the vote of a majority of all the elected members of the National Assembly have set the requirement as an absolute majority. The passage of legislation and motions outside of Article 106 (6) procedurally only requires a vote of those members present and voting (Article 168) i.e. a simple majority. Therefore, resolution 101 was not passed by the required majority of elected members of the National Assembly.

Issue 3-

As a citizen of both Guyana and Canada Mr Persuad is disqualified to be an elected member of the National Assembly pursuant to Article 155 (1) (a) of the Constitution.

Issue 4-

The Speaker of the National Assembly is in duty bound to observe the Constitution as the supreme law of Guyana, therefore, if there is a ruling of the Speaker which is unconstitutional that error can be revisited and corrected by the Speaker.

 Issue 5-

The Speaker can reconsider the resolution and reverse any decision he may have made and is not barred by the sub judice rule.  This assertion is grounded in Parliamentary practice and precedent.

Issue 6-

The Judiciary which is one of the three arms of the State will intervene where the Constitution, the supreme law of the land, is abridged. Therefore, the Court can nullified the Speaker’s decision if it is found to be unconstitutional.

Wisdom prevailed - The Chronicle Newspaper - 31st December, 2018

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Published: 31 December 2018

Attorney General and Legal Affairs Minister Basil Williams and veteran broadcaster Enrico Woolford during the live programme broadcast on NCN

–AG says gov’t acted wisely during confidence vote 
— believes opposition to ‘33 majority’ might have activated other moles on gov’t benches

ATTORNEY General and Legal Affairs Minister Basil Williams said it was not government’s place to alert the opposition that it needed 34 votes to successfully pass the no-confidence motion as he holds fast to his position that in the 65-Member National Assembly, 34 constitutes an absolute majority.

In a legal memorandum to be submitted to the Speaker of the National Assembly, Dr. Barton Scotland, the attorney general argued that there was a miscalculation of the majority of all elected members as required under Article 106(6) of the Constitution for the government to be defeated on a vote of no-confidence.

On Friday, December 21, 2018, the Speaker had announced that the motion was carried with 33 Members of Parliament voting in favour of the motion and 32 against.
But though AFC back bencher Charrandas Persaud defected and voted in favour of the motion to give the opposition People’s Progressive Party/Civic (PPP/C) a simple majority, Williams said the motion is null, void, and of no effect.

“In order for the government to be defeated on a vote of confidence, 34 or more votes of all the elected members in favour of the motion was required instead of 33. This assertion is grounded in established parliamentary precedent and practice and case law in the Commonwealth,” the attorney general stated in the legal memorandum leaked to the Guyana Chronicle.

On Sunday, during a live programme broadcast by the National Communications Network (NCN) and moderated by veteran broadcaster Enrico Woolford, the attorney general said that if he had interjected during the voting process to bring the House’s attention that 34 votes constitute an absolute majority and not 33, the opposition could have possibly alerted another mole, if there was another compromised person.

“As it is, we are in a beautiful position, because I did not interject,” the attorney general told Woolford. Unsure whether there were other APNU+AFC MPs compromised, he said government was cautious in treating with the no-confidence motion.

“I was trained to be cautious, and I wasn’t trained to telegraph whatever tactics I propose to deploy in relation to the opposition’s position. It is not my business to alert the opposition that they need to get two of my members in order to win the vote,” he said.
According to him, government has managed the situation fairly well.
“As we understood it, there were supposed to be several, and I think that situation was handled adequately, because we are in a position to nullify that vote.”

EXPERIENCE KICKED IN 
He added: “I certainly acted in accordance with the intelligence that I had and with all the experience [and] instincts acquired over the years, working with three presidents, I believe that we did very well to be in this position, rather than if I had interjected and the count restarted, and the other moles were then activated, we would not have had a position, the vote would have been legally carried.”

In the legal memorandum, the attorney general pointed to the meaning of a majority, which according to the Merriam Webster Dictionary (1828) is a number greater than half.
“A political principle providing that a majority usually constituted by 50 per cent plus one of an organised group, will have the power to make decisions binding upon the whole” – majority as defined by the Merriam Webster Dictionary.

According to the attorney general, the case of Kilman v Speaker of Parliament of the Republic of Vanuatu [2011] VUCA 15; Civil Appeal 09 of 2011 (13 May 2011) validates and subscribes to the definition of a majority.

As such, the he is arguing that with the National Assembly comprising 65 members, and mathematically, half of all the elected members would result in a fraction of 32.5, a majority would be 34, because there is no half human being and the number is therefore rounded off to 33. As such, a majority is 33 plus one.

“There are judicial authorities in the Commonwealth to show that where a number results in a fraction, the next highest whole number would represent the majority. In the instant case as half of 65 results in the fraction of 32.5, that figures should then be rounded to the next whole number being 33 which would now represent half of the elected members. In accordance with practice application of the meaning of majority means that ‘1’ must now be added to ‘33’ to calculate a majority,” he explained.
Government in the legal memorandum will this week ask the Speaker to reverse his ruling.

International Anti-Corruption - December 9, 2018

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Published: 11 December 2018

A Message from the Honourable Basil Williams, SC, MP

Attorney General and Minister of Legal Affairs 

The ninth of December is designated by the United Nations General Assembly as International Anti-Corruption Day to commemorate the adoption of the United Nations Convention against Corruption (UNCAC).  In the spirit of solidarity, the Attorney General’s Chambers and Ministry of Legal Affairs joins the rest of the international community to mark this important day for the promotion of principles of good governance including integrity, accountability and transparency.  These values are important, especially considering that Guyana is transitioning to an oil economy; and it is the promotion and implementation of these values that will ensure that corruption does not stymie our development.

Corruption has a corrosive effect on society and as expressed by His Excellency President David Granger, “it subverts institutions, inflicts injustices and impairs good governance”.  Corruption leads to erosion of public confidence in the Government as citizens will no longer trust State institutions. However, not only does corruption adversely affect Government institutions, financial institutions also feel the ramifications of corruption. Failure of financial institutions to implement preventative measures to deal with financial crimes such as money laundering and terrorism financing results in de-risking, which is the withdrawal of correspondent banking. Ultimately, the effects of corruption result in the breakdown of the rule of law and lead to poverty. For these reasons, the Government has a zero tolerance to corruption and since coming into office has taken a proactive approach to combating corruption.

The Government has strengthened the legislative framework to deal with corruption and since coming into office has enacted the State Asset Recovery Act, Witness Protection Act and the Protected Disclosures Act. The State Asset Recovery Act is in consonance with the United Nations Convention against Corruption and deals with the recovery of the stolen assets of the State.  The Witness Protection Act fulfills Guyana’s obligations under the UN Convention against Transnational Organised Crime and its Protocol, the UN Convention against Corruption and the Inter-American Convention against Corruption. The Protected Disclosures (Whistle-blower) Act marks another step by the Government towards full compliance with the Inter-American Convention against Corruption. Both the Witness Protection and Whistle-blower Acts, promote the integrity in the justice system and strengthen the mechanisms for crime detection and prosecution by empowering citizens to address and report corruption. Collectively all three new laws add to Guyana’s legislative framework to combat corruption, which already consists of  the Anti-Money Laundering Act, Integrity Commission Act and the Access to Information Act.

While having the requisite legislative framework in place is important, the Government is cognisant that changing public attitudes towards corruption requires sensitising them about the ills of corruption. To this end, as part of the Government’s anti-corruption policy, the Attorney General’s Chambers and Ministry of Legal Affairs along with the Office of the Director of Public Prosecutions and the State Assets Recovery Agency, travelled to eight regions of Guyana and successfully conducted sensitisations and outreach training in Anti-Corruption. We have operated within the context of His Excellency David Granger’s call for an ‘unbribable’ public service and have targeted members of the public service and municipalities. The reality is that persons in the public service are integral to ensuring the Government’s resources are properly managed. Fraud and other corrupt activities committed by corrupt public officials and public servants, remove resources from the Government, which should be directed towards improving the quality of life of all Guyanese.

However, the Government’s initiatives alone cannot combat corruption.  Combating corruption requires partnership between State and citizens who must work together to protect Guyana against corruption's destructive impact. Corruption does not discriminate and affects both the rich and poor. It affects all of us irrespective of race, religion or political persuasion. However, it is the poor and vulnerable who will suffer the most. Therefore, on this Anti-Corruption Day, I urge all Guyanese to become active participants in the global anti-corruption efforts by adopting a zero tolerance to corruption in all its nefarious forms.

MESSAGE BY THE STATE ASSETS RECOVERY AGENCY (SARA)

The State Assets Recovery Agency (SARA) recognises that corruption is a serious crime that can undermine social and economic development in all societies. Therefore, since we commenced our operations in 2017, our mission has been to aggressively fight against corruption, the theft of State Assets, and to nurture transparency in the use of Government and public Assets. SARA has retrieved stolen assets and has received case referrals from Ministries, Boards, the Special Organised Crime Unit, other government agencies and individuals; and has investigated more than twenty-five (25) cases. 

 Land is one of Guyana’s most important patrimonies and its strategic management and stewardship by all land management stakeholders is critical to the sustainable development of Guyana as a Green State.  To this end, SARA has established a monthly Land Patrimony Committee that includes the Ministry of Agriculture, the Guyana Lands & Surveys Commission, the Guyana Forestry Commission, the Guyana Geology & Mines Commission, the MMA-ABA, Central Housing and Planning, the Ministry of the Presidency and the Environmental Protection Agency. These meetings have resulted in greater collaboration among Agencies and a better understanding of the responsibilities of each. The group is currently working towards a National Land Policy.

Currently, Guyana is losing significant amounts of gold on a weekly basis as reported by international law enforcement organisations. To effectively deal with this issue, SARA has established a Working Committee and has been meeting with representatives from Brazil, Suriname and the USA to address this serious problem. Additionally, SARA intends to gather sufficient information that would allow for actual requests to be made to Foreign Governments to return gold seized and held in their jurisdictions. At the same time, SARA is feverishly working to plug leakages in the system.

 Our Media team has held anti-corruption workshops and seminars with over 1100 public sector workers from key constituencies such as the Guyana Police Force, the Guyana Revenue Authority, Guyana Defence Force, Schools and Ministries. The media Team has also held radio and TV interviews on corruption and have developed material on corruption for public edification.  SARA has held two major public events under the theme, “The Fight Against Corruption is Everybody’s Business”, to create awareness and to motivate stakeholders to get involved in the fight against the corruption. The first included Ministers and members of the Diplomatic Community, NGO and Private Sector communities and was labelled  “Walk Against Corruption”. The second was a Celebrity Cricket Mash (“Lash it Out).

SARA has also organised and provided training for several entities including the Guyana Revenue Authority, the Finance Intelligence Unit, the Security and Exchange Commission, E-Governance, the Special Organised Crime Unit, the Guyana Lands & Surveys Commission, the Bank of Guyana, the Ministry of Finance and the Audit Office.

Our appeal to the Guyanese people on Anti-Corruption Day 2019 is to get involved in this fight against corruption. We need you!

‘They’re punishing our students’ - The Chronicle Newspaper - 9th December, 2018

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Published: 10 December 2018

Minister of Legal Affairs and Attorney General Basil Williams SC

…AG calls on Guyanese to join fight for law school
…accuses Nandlall of blackmail; says CLE shifting positions

ATTORNEY General and Minister of Legal Affairs Basil Williams SC has said that all Guyanese including the parliamentary opposition should work together to push for the establishment of the JOF Haynes Law School here in Guyana. Additionally, he accused his predecessor of blackmailing the government by writing secret letters to the Council of Legal Education saying Guyana was never given approval to open a school.

The minister made the statement as he spoke at the 2019 Budget Debates on Friday. “The hardships suffered by our young people in Trinidad—we can’t even begin to describe…They are punishing our students,” Williams said emotionally. As such, he posited: “This nation must call for this law school to be built”. According to him, it is urgent now more than ever to establish this school because of the continued discriminatory practices against Guyanese students and because of crucial need for local skills, when Guyana transforms into an economic “hub” by 2020. The minister spoke in detail about the continued hardships faced by Guyanese students studying at the Hugh Wooding Law School (HWLS), in Trinidad and Tobago.

“They (HWLS) are allotting to us, Guyana—a founding member of CARICOM [and] a signatory to the Council of Legal Education (CLE)… they are reducing us to 25 students while they are churning out students there,” he said.

He contended that 250 students graduate each year from the law schools in Trinidad and Jamaica, yet only 25 Guyanese are allowed entry. The minister further highlighted that by 2020, Guyana will undoubtedly become an economic hub that will need lawyers to boost local capacity. And while acknowledging that the quota of emerging Guyanese lawyers will be significantly less, he explained: “That means we are going to employ all those lawyers that they are churning out at the expense of Guyanese lawyers.”

This, he noted, is a gross injustice to Guyanese minds and the nation must continue to press for the establishment of the local Law school so that more students would be able to pursue studies in law. Just recently, he noted that his ministry successfully hosted stakeholders in the law field- including representatives of the CLE, the Caribbean Court of Justice (CCJ) and personnel from the three Caribbean Law schools (Trinidad and Tobago, Jamaica and Bahamas).

Despite this, he said: “The Joseph Haynes Law School (JHLS) was subjected to another shifting of the CLE’s position to deny Guyana its right to establish a law school.” In September of this year, CLE Chairman Reginald Armour announced that the Government of Guyana and its joint-venture partners, the Law School of the Americas (LCA) and the University College of the Caribbean (UCC), have been asked to revisit the feasibility study for the establishment of the school. Citing the study submitted as non-compliant to the standards of the CLE, Armour has also indicated that study does not satisfy the quality assurance that the CLE requires and the body needs to see a proposed curriculum.

Nevertheless, the AG affirmed on Friday that the government will make every effort to ensure that this law school comes to fruition. The Government of Guyana and the Council of Legal Education (CLE) had previously agreed to revisit the feasibility study and business plan for the establishment of the law School.

“We will continue pressing the CLE, the Bar Association, the Judiciary, the Department of Law at the University of Guyana and the opposition for their support of the establishment of this law school,” he stressed.

The AG’s statements came at the heels of the contentions raised by Opposition Parliamentarian and Former Minister of Legal Affairs, Anil Nandlall that the current AG’s office is “devoid” of any substantial programmes and was operating in a “piecemeal manner”. Antagonising members of the government, Nandlall said: “It is one thing to say that you lose law books, it is another thing to say that you lose cases, it is another thing to say that you lose chairmanship of your party… but when you lose a whole school that is cause for concern.”

Responding to this, the AG Williams accused Nandlall of writing the chairman of the CLE to block the setting up the school. “He wrote, he emailed the chairman of the CLE to tell him don’t worry with this school. We didn’t get permission to support it. That is what he did and that is why he had to leave in disgrace,” Williams said of Nandlall, who had stepped out of the National Assembly Chambers at the time.