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Attorney General asks Court of Appeal to keep President, Cabinet in office

Courtroom, Court of Appeal.

Guyana’s Attorney General Basil Williams has asked the Court of Appeal to keep President David Granger and his Cabinet in office until a decision is reached on whether to overturn or uphold a High Court ruling that the no-confidence motion was validly passed.

Chief Justice Roxane George-Wiltshire in January also refused an application by Williams for a stay of her decision and a conservatory order because the three-month deadline on March 20, 2019 by which elections should be held after a no-confidence motion is approved is approaching quickly.

Instead, the Chief Justice told Williams that he could apply to the Court of Appeal.

On Monday the Attorney General asked the Court of Appeal to grant a stay of the decision and a conservatory order preserving the President and Cabinet in office.

The applications are against the Chief Justice’s decision in favour of Chartered Accountant and Attorney-at-Law Christopher Ram, and another against House Speaker Dr. Barton Scotland and Opposition Leader Bharrat Jagdeo.

The conservatory order seeks to preserve “the status quo ante that the President, Cabinet and all Ministers of the Government remain in office until the hearing and determination of the appeal in the matter herein and such further or other order as the Court may deem just.”

The application was taken out by Mr. Nigel Hawke, Solicitor General; Ms. Deborah Kumar, Deputy Solicitor General, and Ms. Beverley Bishop-Cheddie, Assistant Solicitor General for and on behalf of the Attorney General, Mr. Basil Williams S.C. and whose address for service and place of business is at the office of the Attorney-General’s Chambers, 95 Carmichael Street, North Cummingsburg, Georgetown, Demerara, and it is filed behalf of the Applicant/Appellant.

In an affidavit in support, State Counsel at the Attorney General’s Chambers, Raeanna Clarke said Chief Justice Roxane George-Wiltshire erred and misdirected herself in law when she ruled that the motion of no-confidence upon a division vote of 33 to 32 by Members of the National Assembly was validly passed as the requisite majority of all the elected members.

“There was a miscalculation of the majority of all elected members of the National Assembly as required under Article 106(6) of the Constitution for the Government to be defeated on a vote of no confidence. In order for the Government to be defeated on a vote of no confidence, 34 or more votes of all the elected members in favour of the motion was required instead of 33,” she said. “I am further advised by my Attorneys-at-Law and verily believe that the absolute majority is calculated as half plus one and where mathematically half of all the elected members of the Parliament would result in a fraction the method of calculation of the absolute majority is that the fraction is rounded to the next whole number and 1 added to result in a number greater than half,” she said.

In relation to the decision in favour of Ram, State Counsel Raeanna Clarke said the conservatory order is necessary to preserve the status quo ante as the period for the hearing and determination of the matter may expire before that time prescribed in Article 106 (7) of the Constitution which requires that the President and Government resign and hold elections within three (3) months.

“That I will contend that the appeal has good prospects of success and the Honourable Court ought to grant a stay and a conservatory order in order to ensure that if the appeal is successful it is not rendered nugatory,” she said.

Clarke said the Court of Appeal has jurisdiction to grant a stay of execution of a declaratory judgment in matters that would affect the public interest.

The State says the Constitution provides for the Cabinet to aid and advise the President in the general direction and control of the Government of Guyana and shall be collectively responsible therefore to Parliament.

“It is contended that the effect of Article 106 (2) is that once there is a Government, there must be a Cabinet; once there is a President there must be a Cabinet, and once there is a Parliament there must be a Cabinet. Therefore in so far as Article 106 (6) purports to sever the connection between Cabinet and Government it is inconsistent with the clear provisions of Article 106 (2).

It is further contended that the word notwithstanding connects Article 106 (7) to Article 106 (6) of the Constitution and provides the time frame for the resignation of the Cabinet which being part of the Government exists as long as the Government exists and the Cabinet would accordingly resign when the Government resigns. Further, the time for resignation of the President, Cabinet and Government is when elections are held and the President takes the oath of office following the elections as set out in Article 106 (7).