CCJ rulings for no-confidence appeals, GECOM chairmanship case, set for June 18. 2019

Last month, the Trinidad-based Court heard arguments in the consolidated no confidence matters as well as appeals in relation to the challenge over the legality of the appointment of the GECOM chairman. 

The panel of five judges, comprising President of the CCJ, Justice Adrian Saunders, and Justices Winston Anderson, Jacob Witt, David Hayton and Maureen Ragnauth–Lee, had reserved their decision to decode, inter alia, the complexity of two major constitutional provisions arising out of the arguments presented in the no confidence appeals as well as legal arguments surrounding the GECOM chairman matter.

The Constitutional challenge to the appointment retired Justice James Patterson’s appointment is now before the CCJ for final determination after People Progressive Party (PPP) Member of Parliament Zulfikar Mustapha, who instigated a challenge against it, was unsuccessful in both the High Court and the Appeal Court.

Last month, in his argument, Trinidadian Senior Counsel Douglas Mendes held that the President needs to consult with the Leader of the Opposition (Bharrat Jagdeo) and that they may, during open discussions, come up with a name they are both happy with. SC Mendes said that the President needs to be “open and transparent about his thinking.”

Mendes is representing the Opposition member in the case. Although he acknowledged that the President has the power to make a unilateral appointment, SC Mendes had argued that the Head of State ought to have provided reasons for his rejection of the lists, since the provision of that Article 161 (2) is to achieve an appointment that is acceptable to both the President and parliamentary Opposition.

While this was SC Mendes’s position, Queen’s Counsel Hal Gallop, one of the lawyers representing the State, submitted that on appeal to the Court of Appeal, one of the Judges held that the President did indeed gave reasons for rejecting the lists.

Government-appointed Attorney and Queen’s Counsel Ralph Thorne, who also represented the State along with Attorney General Basil Williams, reasoned that the Leader of the Opposition needed to submit a list for consideration and it was up to the President to determine if it is acceptable.

“We are arguing that acceptability is not a joint exercise,” said Queen’s Counsel Thorne. There is nothing in the Constitution, which provides for dialogue between the President and Leader of the Opposition. He said that such dialogue is held after the Leader of Opposition submits his list of nominees. But Justice Saunders questioned the worth of consultations afterwards.

But Thorne reasoned that it was not required for the President to disclose which person on the list was not acceptable.
Meanwhile, the CCJ is said to rule on the case arising out of the no confidence appeals.

In this case, the CCJ must determine among other things whether Guyana’s National Assembly requires an absolute majority of its 65 members to pass a no-confidence motion and formula constitutes such a majority.

Last December’s no-confidence motion attracted 33 votes when then government parliamentarian, Charrandass Persaud, voted with the opposition. The vote was accepted by Parliament. However, the CCJ is considering government’s argument 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.

In a split decision, Chancellor of the Judiciary Yonette Cummings-Edwards and Justice of Appeal Dawn Gregory held that 34 votes, which constitute an “absolute majority” of all members of the National Assembly, were needed for a motion to be successfully passed.

The Appellate Judges held that in calculating the “absolute majority”, the 65 members of the National Assembly had to be divided by two, which would result in 32.5, but since the .5 represents half and there is no half-member, that number needs to be rounded off to 33, and add one more, making the majority 34—an absolute majority—which is needed to topple a government.

The Court of Appeal essentially reversed a ruling made by Chief Justice Roxane George who held that 33 votes were needed for the motion to be successfully passed. The Chief Justice had ruled that its passage should have triggered the immediate resignation of the President and Cabinet.

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