Private Guyanese citizen, Compton Reid on Friday said then government parliamentarian, Charrandass Persaud did not own his seat and could not have constitutionally voted against the party list, but he could not reconcile his argument with the provision for a no-confidence motion.
Through his lawyer, Senior Counsel Neil Boston, Reid told the Caribbean Court of Justice (CCJ) that Persaud never campaigned for his seat but urged the electorate to vote for A Partnership for National Unity+Alliance For Change (APNU+AFC) coalition.
“Loyalty to the party is the norm based on shared belief. To vote against your list is disloyalty. Voting with the other side smacks of conspiracy…Mr Charrandass has never faced the electorate to say vote for Charrandass. You say you voted for a list,” Boston told the CCJ on the second and final day of oral arguments in consolidated appeals on the no-confidence motion.
Boston emphasised that Persaud’s votes could not be considered as having been “thrown away”. “Mr. Charrandass has no constituency. He is put there as a front for the APNU+AFC list. That is his function there and he has to carry out the mandate and the dictates of the list. Nobody voted for him.
Boston urged the CCJ to decide what sanctions should be imposed on parliamentarians, who vote against the list without informing the House Speaker that they intend to do so. Justice Jacob Wit asked whether political parties have to check on whether their candidates held dual citizenship.
Persaud is a Guyanese-Canadian who, according to Boston, subjected himself to the party rather than a conscience vote. “The whole idea of Article 156(3) (a) and (b ) is to curb the evil of political mischief, of political defection motivated by the lure of consideration; unknown to your party can collect on the side and vote and overthrow a government,” Boston said.
After Justice David Hayton observed that Guyana’s constitution does not say so in clear language that if parliamentarians vote against their list those votes would become invalid, Boston said the CCJ has to construe that they could not vote against their party list without sending a notice to the House Speaker.
Boston conceded that, “there is no section in the statute that says if you vote against your party from which your name has been extracted, your vote is not valid. It doesn’t say so. It is the court (that) has to construe Article 156(3) and come to the conclusion if this is the spirit and intention of Article 156(3) that you can’t vote against your list without sending a letter to the list representative or the Speaker of the National Assembly. That the court is duty bound to give effect to that spirit of the constitution. If you say that is it, then you will be abdicating the function of the court if you do not give effect to the spirit,” he said.
In response to Justice Winston Anderson’s query on how Boston reconciled his position that “you can’t cross the floor” with the Article 106(6) that provides for a no-confidence motion, the lawyer said, “That issue will have to be decided by the National Assembly at some moment. The legislature will have to deal with that conflict,” he said.
The lawyer, when questioned pointedly, whether the government could fall on a vote of no-confidence, he conceded that that was possible, but at the same time agreed with CCJ President, Justice Adrian Saunders that voting in the House was merely a formality.
“Yes, unless party whip at caucus before a legislation is passed says, ‘well, listen you vote against that’. If in the absence of that, you have to follow the party list,” the well-known Guyanese lawyer said. At the same time, Boston also agreed with Saunders that it is only the government’s Chief Whip who can “free the members on the list from the requirement of voting with the list” as part of an internal issue.
The Senior Counsel said while voting is a form of freedom of speech, it is not absolute to which Justice Kenneth Benjamin uttered “you can speak out against the list but not vote against it.”
Asked by Justice Benjamin whether a parliamentarian could abstain, Boston said “he couldn’t abstain because it is implicitly voting against the list… It is an expression of non-support for the list”.
Justice Hayton sought to stress that the operative word “if” in the constitutional provision that states if a member declares an intent to vote against his own party list he or she ceases to be a Member and must be immediately be expelled from Parliament. Boston countered that while there was no expressed provision, the court had to look at the provision to determine what was the intention of the framers.
“It doesn’t say that if someone is not going to support the list from which his or her name is extracted, then that person must declare in writing that he is not going to support the list and therefore will cease to be a Member of the Assembly. That’s what we need to have to support your view,” Hayton said. But Boston said, the court has to seek to determine what was the intention of the article.
Justice Wit said on December 21, 2018, no one said the no-confidence motion was impossible, no one objected and House Speaker Dr. Barton Scotland certified the vote of 33-32.
At the same time, Boston said the invalidated vote is not counted and that vote does not invalidate the proceedings.