Constitution – Page 2

February 6, 2019February 7, 2019

In its determination to cling to power at any cost, the Granger Administration seems willing to abuse the legal process

Mr. Ronald Bulkan graciously seeks to educate me even as he himself seems to lack the appreciation or the understanding that two or more persons can have the same interpretation of the plain meaning and implications of the Constitution’s provisions on a No Confidence vote without being part of an “organised group”. Among the persons suspected by Mr. Bulkan of being part of that group promoting the argument that general elections must be held by March 21, 2019 are “the Private Sector Commission, AmCham Guyana and even external ones.”

Mr. Bulkan must be very dismayed that the group promoting what Mr. Bulkan still considers an argument now includes the labour movement in Guyana, almost every independent thinker in Guyana, the European Union, the United Nations and I dare say most respectfully, the Hon. Chief Justice of Guyana. Perhaps Mr. Bulkan needs to be reminded – if not educated – of the stipulation of Article 106 (7) of the Constitution which provides as follows:

“(7) 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.”

February 3, 2019February 3, 2019

The President needs to dissolve the National Assembly and demonstrate his commitment to democracy

The High Court has now pronounced on the December 21 vote of no-confidence in the National Assembly. The Honourable Chief Justice, in separate decisions in three cases arising out of the vote, reaffirmed the ruling of the Speaker of the National Assembly that the ‘yes’ vote by an AFC Member of Parliament was valid and by a majority of 33 – 32, the Cabinet, including the President, automatically fell. A further consequence of the vote was that elections must be held within the constitutional timeframe of 90 days, meaning that those elections must be held no later than March 21, 2019, less than seven weeks from today.

The decisions in all three cases were well-researched, reasoned and argued. The delivery was commanding, with a good measure of grace and gravitas that makes one easily forget that these cases were started and completed within a fortnight, all by a single judge. By any standard, that is not only remarkable but probably unprecedented in Guyana’s legal history. If any proof was required to justify the confirmation of her position, the Chief Justice not only met but over the four hours of her oral delivery, exceeded the standard. It is time that we end this farce that seems to condemn their Honours Yonnette Cummings-Edwards and Roxane George-Wiltshire to acting positions.

Within the three cases, there was one other major issue decided by the Chief Justice. And that is that under Article 155 of the Constitution, a person who by his/her own act acquires a passport of a foreign power or state, cannot be a candidate for membership in the National Assembly. The effect is that members of both the APNU+AFC and the PPP/C who hold such dual citizenship can no longer sit in the National Assembly, and perhaps, more practically, those persons have to decide, well before the new elections, whether or not to give up their prized foreign passports.

Vice President Carl Greenidge, Minister Joseph Harmon and Opposition Chief Whip Gail Teixeira have admitted to being foreign passport holders and can no longer remain a member of this current Parliament which is still to be dissolved. There is word that Ms Volda Lawrence is also the holder of a foreign passport, a matter which she needs to address with a simple admission or denial. Incredibly, Opposition members Messrs. Odinga Lumumba and Adrian Anamayah do not seem to know whether they are citizens and the Leader of the PPP/C List for the 2015 elections should call on them to clarify their status. Unless they do so immediately, they should be removed from the National Assembly. This applies too to Professor Harold Lutchman, the Leader of the APNU+AFC List for the 2015 elections.

January 16, 2019January 17, 2019

Qualification provisions for MPs were there long before the post-Herdmanston reforms

In his letter published in the Stabroek News of January 15, 2019, Mr. Lincoln Lewis accuses former Attorney General Mr. Anil Nandlall of “being deceptive in his claim that the extant article was probably there since independence and all political parties are in violation, which gives the impression that this violation has been happening for more than 50 years.” In Mr. Lewis’ typically emphatic style, he describes Nandlall’s claim as “Not true” and makes his own claim that “The constitutional requirement came into effect in 2000.”

It is unusual for Mr. Lewis to get his facts wrong but on this occasion he does and I believe this is due to the side note to Article 155 in the current version of the 1980 Constitution which refers simply to Act 14 of 2000. In fact, the question of qualification and disqualification for election as members of the (Guyana) National Assembly was addressed in Articles 59 and 60 respectively of the 1966 Independence Constitution. Under the said Article 59 a Commonwealth citizen was so qualified but such a person was disqualified under Article 60 if that person was, “by his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state”. The 1980 Constitution had similar provisions with the important distinction that “Commonwealth citizen” was replaced by “citizen of Guyana” as a qualification for election to the National Assembly (Article 53). The disqualification condition was however framed in identical terms (Article 155) as its predecessor.

January 7, 2019January 17, 2019

AFC included foreign passport holders in its 2011 candidates list, its hypocrisy over Charrandass Persaud is boundless

I can agree with only one of the two points made in a letter by my UG Law Department colleague and friend Professor Justice Duke Pollard, appearing in the Stabroek News of January 3, 2019. The one on which we agree is the abuse of the constitutional provision for qualification for membership of the National Assembly, while on what the Professor describes as calls for the Government to resign following its defeat in a No Confidence Motion in the National Assembly, I must disagree. Let us deal with the second matter first.

Professor Pollard suggests “condign sanctions” against what he describes as “public mischief to require at this stage the resignation of the Government …” With respect, the Professor seems to misrepresent the distinction between the observance by the Granger Administration of the Constitution in relation to the resignation of the “Cabinet, including the President” under Article 106 (6), and that of the Government under Article 106 (7) which takes place after a new President has been sworn in following elections within three months of the passage of the No Confidence Motion.

With his sharp intellect and judicial mind, the Professor would have noticed that the 106(7) resignation of the Government takes place in the future but that no such latitude applies to the resignation of the Cabinet, including the President. The ineluctable conclusion is that under Article 106 (6), Cabinet’s resignation is an immediate consequence of the vote announced by the Speaker. Indeed, instead of calling for condign sanctions against what he himself describes only as allegations, it would have been helpful for the Professor to have lent his undoubted weight to expressing an opinion on what happens in “well-functioning democracies” when a Government loses a vote on a motion of no confidence.

January 3, 2019January 7, 2019

APNU+AFC Gov’t now effectively a caretaker administration, President and Ministers have diminished powers

In my letter of December 29, 2018, I focused on the interpretation given by Attorney-at-Law Mr. Nigel Hughes of the word “majority” in Article 106 (6) of the Constitution of Guyana. With your kind permission I wish to return to the other operative words of the same paragraph. The first thing to note is that Article 106 (6) uses mandatory language and imposes a duty on the Cabinet, including the President, to resign if the Government is defeated on a no confidence motion (NCM).

This resignation under Article 106 (6), brings to a halt their functions, including aiding and advising the President in the general direction and control of the Government, proposing legislation, reviewing of contracts over fifteen million dollars and the making of appointments. They can no longer meet as a Cabinet but there is nothing to prevent the former members meeting and offering advice to the President informally.

While the Constitution is silent on the specific date for the resignation under Article 106 (6), for the reason set out below, that resignation seems to be automatic, or intended to be with immediate effect. In any case, Article 232 (9) provides that the Interpretation and General Clauses Act (ICGA) shall apply for the purpose of interpreting the Constitution. Since no time is prescribed therefore, section 39 of the ICGA provides that “where no time is prescribed within which anything shall be done, such thing shall be done with all convenient speed.”