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Absolute majority needed to pass no-confidence motion, CCJ President says

-Charrandass Persaud concedes GECOM has “significant discretion” on holding elections

President of the Caribbean Court of Justice, Adrian Saunders.

President of the Caribbean Court of Justice (CCJ), Adrian Saunders on Friday indicated that the regional court believes that Guyana’s National Assembly requires an absolute majority of its 65 members to pass a no-confidence motion, but the issue is deciding on the formula.

“No one is doubting that an absolute majority is required in this case,” he said during final submissions on the last day of oral arguments on the consolidated appeals of last December’s no-confidence motion that attracted 33 votes when then government parliamentarian, Charrandass Persaud, voted with the opposition.

Justice Saunders added that “the only issue is: what constitutes an absolute majority?” even as he declined to entertain further arguments on that point.

The CCJ President said the two questions facing the Trinidad-headquartered regional court are what is an absolute majority of 65 and if that requires dividing by two and adding one, as had been the case in the Solomon Islands, or whether what is the majority of an uneven number.

Guyana’s legal team maintains that an absolute majority of 65 is 34, an argument that was upheld on March 22, 2019 by the Guyana Court of Appeal to invalidate the no-confidence motion that the Guyana High Court had ruled had been validly passed by 33 votes.

However, lawyers for then government parliamentarian, Charrandass Persaud, who had voted for the opposition-sponsored no-confidence motion, Opposition Leader Bharrat Jagdeo and Christopher Ram argue that there is no reference to simple or absolute majority in Guyana’s constitution.

GECOM’s Attorney-at-law, Stanley Marcus appearing at the Caribbean Court of Justice.

Justice Saunders told Attorney-at-law Stanley Marcus, who is representing the Guyana Elections Commission (GECOM), that he might be asked to make further submissions based on the CCJ’s decision on that very date or at some other time, based on the nature of that decision.

Saunders said “we wouldn’t be able to give a decision next week” after Marcus told the Court that he would be out of the jurisdiction at that time.

Meanwhile Persaud on Friday conceded that GECOM has “significant discretion” in delaying elections. Justice Winston Anderson, a member of the panel of judges, asked Persaud’s lawyer, Sanjeev Datadin to concede that the seven-member electoral Commission could delay the conduct of general and regional elections to a point.

Anderson told Datadin that he was not denying that that electoral management authority could delay the elections to a point it considers appropriate, “but I’m just asking you to, if you agree, concede that they do have that power.”

Replying, Datadin, said, “yes I do” while remarking that GECOM’s discretion has to be exercised in light of “where we are now” given the seeming reference to the appeal against President David Granger’s unilateral appointment of Retired Justice James Patterson might be more important. The CCJ heard oral arguments in that matter on Wednesday and a decision is now pending.

The Attorney-at-law also told the CCJ that Guyana has no law that mandates house-to-house registration, but the constitution was amended to provide for using the 2001 voters’ list as the basis for ongoing updating. “There is nowhere in the law that house-to-house registration has a statutory underpinning. It used to be there. It was removed for a reason,” he said.

Attorney-at-law, Kamal Ramkarran

Christopher Ram, through his lawyer Kamal Ramkarran, told the CCJ that GECOM could only exercise its discretion if there is danger or serious hardship such as severe natural disasters, but ultimately that elections management authority must exercise its power in good faith, fair, impartial and in compliance with the law that provides for accountability and fundamental rights.

“Since the court has raised it, the court should make it clear that this is not a power to be invoked except in the direst of circumstances which are clear to all right thinking persons of society,”  Ramkarran said. He highlighted that the Guyana constitution was being breached for 45 days as of May 10, 2019, if the court accepts that the no-confidence motion was validly passed.

Representing government, Attorney General, Basil Williams said there was no constitutional provision with the list; rather that it is a political position on which the Chief Whip could inform parliamentarians whether they could vote by their conscience as has been the case concerning lesbian, gay, bisexual and transgender rights and capital punishment.

Attorney-at-Law, Robert Corbin, who is a former Opposition Leader and former Leader of the People’s National Congress Reform (PNCR), urged the CCJ to consider that there is a distinction between voting against the list and voting against certain measures such as those touching on conscience when a unanimous position could not be reached in caucus.

“That vote, while appearing to be a vote against the list, is not really against a list, is against a measure and that must be distinguished from a vote in (Article) 106(6) because that really affects the list itself and its survival of the government of the day,” he said.

Justice Saunders said such a situation poses a challenge to determine which measures could affect the stability of the list, all of which are not in Guyana’s constitution but the court was being asked to read into that supreme law.

Corbin, in reaction to comments by the panel, said such situations would have to eventually be tidied up in future constitutional reform by the National Assembly, based on guidance that the CCJ might be. “If this court gives the guidance that there is a possibility, as you have just done, Your Honour, that it is possible that the conscience vote could be mistaken for a vote against the list even though that person has the sanction of the list and its representatives, then perhaps it’s a sufficient hint for those who would be involved in reforming the constitution to take that on board and ensure that there is no future misinterpretation of it,” said the veteran Guyanese politician.

Corbin, who is also representing appellant Compton Reid, cautioned the court against falling prey to misinformation and to consider the implications of the financial and administrative arrangements for GECOM as they relate to the Fiscal Management and Accountability Act, the separate and distinct lists for general and local government elections, and the two-fold registration process of all persons in Guyana and the extraction of names for the voters’ list. “I think the important point has been made that one should examine all the factors before one yields to all the misinformation which have been presented to this Honourable Court,” he said.

Attorneys-at-law Douglas Mendes (left) and Sanjeev Datadin at the Caribbean Court of Justice.

In apparent response to arguments by private citizen, Compton Reid, who challenged the validity of the no-confidence motion in Guyana’s courts through his lawyer, Senior Counsel Neil Boston, the lawyer for Persaud said in the past government parliamentarians, including current members, had abstained from voting without informing the House Speaker or faced sanctions afterwards.

Opposition Leader Bharrat Jagdeo’s Attorney-at-Law, Douglas Mendes rebutted Senior Counsel, Eamon Courtenay’s arguments. Mendes reiterated that even if a parliamentarian votes for a no-confidence motion, he is still a party member and it does not mean that he ceases to support the government.

Mendes disagreed with Justice Winston Anderson that if a parliamentarian votes against the government, he or she would be voting against the list. “I am not agreeing with you. You can support your party but not the government,” he said.

The Trinidadian lawyer also rejected his Belizean counterpart’s contention that Persaud was a usurper. Mendes said no evidence was led to prove that the former MP had knowingly sworn that he did bear allegiance to any other foreign power and that he had known that he had not been eligible to vote in the National Assembly.