Ministry of Legal Affairs

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.

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.