Ministry of Legal Affairs

KN article represents misinformed view of AG Chambers - The Chronicle Newspaper - 8th April, 2019

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Published: 08 April 2019

I REFER to an article featured in the Tuesday, April 2nd, 2019 edition of the Kaieteur News, titled: “AG’s Chambers lacks expertise to fine tune oil laws.” The Attorney General’s Chambers and Ministry of Legal Affairs is of the view that this headline and the contents of the article represent a misinformed view of the role of the Drafting Division of the Attorney General’s Chambers.  However, not only is this view misinformed, but it seeks to diminish the work of a division, though short-staffed, drafts the laws of the land under immense pressure and time constraints. Therefore, permit the Chambers to clarify their important functions.

The persons who draft the laws of this country are lawyers admitted to practise in Guyana and because of their unique role, they are known as parliamentary counsel. These lawyers have various years of experience, ranging from over 30 years to one year. Some possess the LLM in Legislative Drafting and others are currently engaged in post-graduate studies in legislative drafting. Further, all staff of the Drafting Division have received training in other areas of the law: for example, anti-money laundering and countering terrorism financing and proliferation financing, nuclear and chemical weapons, cybercrime, Hague Conventions, intellectual property, anti-corruption, human rights and law revision.

The lawyers of the Drafting Division are responsible for translating the government’s policy into legislation. Through the drafting of laws they give effect to the constitutional, political, social and economic goals and aspirations of the government. Additionally, they ensure that the draft is constitutionally sound, complies with fundamental legal principles, does not repeal existing laws, is workable and effective and is in a form acceptable to Parliament. Further, when requested, they offer legal advice on laws, contracts and international agreements and contracts (e.g. IDB, UN and CARICOM). In essence, they are the government’s advisers with respect to legislation. They also coordinate and facilitate consultations on draft bills, laws and nationwide seminars on Anti-Corruption and Anti-Money Laundering and Countering the Financing of Terrorism.

Particularly because of the nature of the job of the parliamentary counsel, the only expertise required is that of legislative drafting.  Therefore, they can draft any legislation that is required by the government and this is what they have been doing since the division was established.  One can be an expert in a particular field of law, but if that person does not possess the skill to draft, then he/she is not suitable to be a legislative drafter.  This is what distinguishes the parliamentary counsel from all other lawyers.  It is impossible for the parliamentary counsel to be specialist in all the areas of law that the government will require legislation. However, what the lawyers of the Drafting Division do possess are the skills required to give effect to the government’s policies. These are the skills that another lawyer who has the expertise, for example in oil and gas law, does not possess, since drafting is a skill that is developed over time.

It must be stated that drafts done by consultants/experts are oftentimes not in a form fit for Parliament and the parliamentary counsel has to engage in a process of dismantling the draft and reworking it to ensure it is fit for purpose. This simply means that being an expert is not synonymous with being a drafter. It is at this juncture that one can see the measure of the magnitude of our drafting expertise. The final product is always that of the Chambers as consultants are often too far removed from the realities of what is needed. Against this backdrop, persons should be careful about making disparaging and reckless remarks about the expertise that the Drafting Division possesses.

The author of our disparagement should be careful of his remarks. His arrangement in relation to oil and gas covers vast tracks of space and time, but he has committed an error by arrogating to himself, knowledge of which he is denuded.  Perhaps it would be apt to mention the Constitutional Reform Commission Bill drafted by a consultant, guided by a Steering Committee and sent to this Chambers.  The Bill had to be salvaged by the Chambers, because of a lack of knowledge by the consultant, and his failing to take into consideration certain key aspects of the laws of Guyana.

It is important to also note that drafters do not usurp the role of the government. It is the government and the respective ministries and departments that should have the requisite specialisation in the policy area that requires legislation.  Moreover, drafters do not work in a vacuum, but rather work along with the experts or consultants employed by the relevant ministry or department who is there to serve as the instructing officer. Also, we have worked with oil and gas experts from the Commonwealth and in other areas of the law with experts from the International Senior Lawyers Project (ISLP). Therefore, if the government wishes to have laws dealing with oil and gas, then it is the government who must ensure that they have the requisite experts to formulate what is known as drafting instructions.

This expert is the one responsible for explaining the aims of the legislative proposal to the drafter, give the drafter the requisite information to help the drafter to compose a product that is legally effective and responds to the policy, and make decisions on issues arising during the drafting. These instructions the drafters will use to guide them in drafting the law with clarity and precision, thus giving effect to the legislative aspirations of the government.

As noted by the late renowned legislative drafter, Professor V.C.R.A.C Crabbe, “Parliamentary Counsel must have some basic knowledge of indeed every subject matter.  They supplement their basic knowledge with research.  Their industry and discipline help them to ask the right questions.  In the end, Parliamentary Counsel becomes Jacks of all trades and masters in legislative drafting.”
In conclusion, there is no challenge that the Drafting Division cannot handle

Regards
Attorney General’s Chambers

Press Release - 21st February , 2019 - Erroneous media Reporting of No Confidence Motion in the Court of Appeal.

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Published: 25 February 2019

In an attempt to correct the misinformation being peddled in various sections of the media as it relates to yesterday’s standstill of the appeal for a stay of execution, in the Court of Appeal the Attorney General's Chambers and Ministry of Legal Affairs wishes to unequivocally state the facts.

A Notice of Appeal was initially filed on February 5, 2019 on behalf of the Appellant, the Attorney General challenging the Chief Justice’s ruling on January 31st, 2019 in both FDAs No. 22 and 29.

Consequently, the parties were invited settle the records of appeal on February 15, 2019. During the course of settling the records of appeal some clerical errors were recognized and the judge was subsequently informed. This session was attended by the State Solicitor and lawyers representing the interest of the other parties.

Attorney at Law, Mr. Anil Nandlall who is representing, the Leader of the Opposition noticed that his client’s name was inadvertently omitted from the rubric of the initial Notice of Appeal.

At this juncture, the State Solicitor committed to amend the omission on the rubric and it was agreed by all the parties present that the Notice of Appeal would be amended, to now reflect the inclusion of the Leader of the Opposition and served on all parties. All parties noted that it was a mere inadvertent clerical error and should not adversely affect the hearing of the matter.  

As was instructed, the State Solicitor amended the Notice of Appeal in accordance with  Order 2 rule 6 (1) (b) and this was filed and served on Monday, February 18th, 2019 ahead of Wednesday’s hearing before Justice of Appeal, Mr. Rishi Persaud. 

It is quite appalling that the media would characterize an inadvertent slip as an array of glaring errors.

Further, it is crucial that the media operatives should exercise some degree of due regard and caution when reporting matters of this magnitude.

The matters have been filed and the appellant anticipates a hearing date for the said matters in the coming week. 

Solicitor General never resigned - The Chronicle Newspaper - 22nd February, 2019

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Published: 22 February 2019

Solicitor General Nigel Hawke (Adrian Narine photo)

– tells SN to issue retraction and apology for falsity

SOLICITOR General Nigel Hawke has called on the Stabroek News to recant and issue a public apology regarding its false article that he resigned, with immediate effect, on Wednesday, February 20, 2019, following the Court Appeal matter regarding the no-confidence motion.

The article in question was published in the newspaper’s Thursday, February 21, 2019 edition and titled: ‘Solicitor General Resigns’.

Although the Stabroek newspaper hinged its report on being “reliably informed”, Hawke confirmed to the Chronicle Newspaper yesterday (Thursday, February 21) that the report was both misguided and void of the truth.

“When I saw the article, I was taken aback because I knew, for a fact, that there was no resignation and the first thought that came to me is how would we have sunken so low. The first and carnal rule of journalism is simply [where] they could have confirmed from me and if not me, the better place to confirm was the Permanent Secretary of the Ministry as to whether she’s in receipt of a resignation,” he said.

His disappointment expressed in the newspaper’s ethics and standards was coupled with his regret that the viral story caused his family much worry.

“This thing has caused much trepidation to my family. It’s gone viral; people calling me: my mother, my grandmother, my father, everybody,” he said.

The article, which Mr. Hawke believes was intended to create mischief, stated that: “Shortly after returning from court, he [Hawke] was locked in a closed- door meeting with [Attorney General Basil] Williams for about 15 minutes. Reports are that the former magistrate, who spent some time in Belize, emerged from the building with his belongings and left the area in a taxi. A vehicle had been assigned to him.”
However, Hawke has discredited these reports.

“The report has a litany of inaccuracies. They said I left in some taxi; it was my brother who came to pick me up. I left with my bag, my books that I usually [carry]. They said I left the vehicle that I was assigned. The vehicle sometimes is left there many nights. Sometimes I go home with it; sometimes I don’t, that’s the reality,” he cleared up.
Hawke regrets that there were hints of connections, linking the issues which arose, during the appeal challenging the ruling of the High Court in the no-confidence motion cases on Wednesday, to his presumed resignation.

“The way that they put the story over is as though, because of the error or the inadvertent slip in the Court of Appeal, that somehow I resigned. But I was not involved in the filing of those matters,” he said.

He added that such a time in the country’s history was not for the sowing of “seeds of discord” but for the nation to come together toward a solution to the matter at hand.
“I’m asking Stabroek News to do the correct thing: issue a public apology to me; recant the story because it is absolutely false and inaccurate. It is calculated clearly to cause mischief,” he stated.

“I’m really disappointed that Stabroek News would do that and, in fact, I’m of the view that if they don’t want to recant it, I will take advice from my lawyers.”

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.