ABUSE OF THE COURT’

Chief Justice throws out PPP application for Cabinet to resign
…deems action wholly misconceived, vexatious and an absolute abuse of the court

ACTING Chief Justice, Roxane George-Wiltshire, on Wednesday, threw out a Fixed Date Application (FDA) filed by People’s Progressive Party/Civic (PPP/C) Attorney-at-Law, Anil Nandlall, for an order, compelling Cabinet, including the President, to resign, deeming the case vexatious and an abuse of the court.

“This application is not only wholly misconceived, it is vexatious and an absolute abuse of the process of the court,” Justice George-Wiltshire said as she handed down the judgment in the High Court.

In the case brought against the Attorney General and Minister of Legal Affairs, Basil Williams, Nandlall sought three orders, among them an order compelling the Cabinet, including the President to resign on the basis that Government was defeated by way of a No-Confidence Motion in the National Assembly on December 21, 2018. This, he had argued, was in keeping with Article 106 (6) of the Constitution of Guyana. He had also sought a ‘mandatory order’ and a ‘conservatory order’ to restrain Cabinet, inclusive of the President, from meeting, making decisions, or performing the functions of Cabinet but no such orders were granted.

Upholding AG’s application
Instead, the Chief Justice upheld the Attorney General’s notice of application for the FDA to be struck out on the grounds that the FDA was an abuse of the process of the court. She explained that the No-Confidence Motion matter and its effects which included the resignation of Cabinet were ventilated at Guyana’s final appellate court – the Caribbean Court of Justice (CCJ), for which, the applicant was integrally involved.

The Chief Justice (ag) detailed that the CCJ, upon handing down the consequential orders on July 12, 2019, addressed the issue of the resignation of the President and Cabinet.
“It is important, however, that the Court makes this point.

In mandating that the Government shall remain in office notwithstanding its defeat and the resignation of the President and the Cabinet, Article 106 envisages that the tenure in office of the Cabinet, including the President, after the Government’s defeat, is on a different footing from that which existed prior to the vote of no confidence,” Justice George-Wiltshire said as she read an excerpt from the CCJ’s July 12, 2019 judgment.

In its deliberations, the CCJ said too that the Chancellor, Yonette Cummings-Edwards was correct in citing Canadian Constitutional Expert Peter Hogg, when she noted that: “…The government continues in office as a caretaker government or interim government until the next elections ensue and a President is appointed (or reappointed) depending on the results of that election.”

The Chief Justcie (ag) said given the pronouncement of the CCJ, there could not have been, and there cannot be any requirement for a mandatory order compelling Cabinet including the President to give effect to the resignation of the Cabinet, including the President.

“In any event, given that the issue was a live one before the CCJ, a court of first instance sitting as I am, cannot say that the CCJ omitted to make an order which a party or counsel for a party in the appeals thinks the Court should have made, more so, one that was actually sought; or that it somehow fell into error in its pronouncements or in its considerations of the effect thereof as the applicant as argued. This court is bound by the pronouncements and decision of the CCJ pursuant to the doctrine of stare decisis or doctrine of precedent,” Justice George-Wiltshire explained.

It was Nandlall who had said that the High Court should do what the CCJ ‘failed’ to do, and that was to issue the order compelling Cabinet to resign. According to him, the CCJ had fallen short in its ruling, but the Chief Justice (ag), on Wednesday, made it clear that the High Court is bound by the decisions of the CCJ.

Referencing to her pronouncements in the case of Ram v Chief Elections Officer, Commissioner of National Registration, GECOM and the AG, Justice George-Wiltshire iterated that the CCJ’s July 12 judgment should be read dispassionately and objectively. “While the applicant may be dissatisfied with the conclusion of the CCJ – he cannot seek to overturn or reinterpret it by filing an application such as this. The CCJ did not omit to pronounce on the issue as has been contended. On the contrary, the CCJ emphasised that it was making an important point in stating that the Cabinet including the President, and the Government are to act as a caretaker or interim government,” the Chief Justice (ag) clarified.

Application struck out; Nandlall to pay $500,000
It was on those grounds that the CCJ denied the application filed by Nandlall, who was present in the Court on Wednesday along with his Attorney Kamal Ramkarran. She emphasised that he was integrally involved in the hearing of the consolidated appeals before the CCJ. “The notice of application for the FDA to be struck out is granted as the FDA is an abuse of the process of the court with costs to the respondent in the sum of $500,000,” the Chief Justice (ag) said in her final words of her ruling.

Weighing on the matter prior to the ruling President David Granger was asked what would be his Government’s position should the court rule that Cabinet, including the President, should resign. He stated: “I don’t see the likelihood of that arising. The country cannot be without a government; the country cannot be without a President. Our interpretation of the Constitution is that I remain until another President is elected after the General Elections.”

He stated that the Government has complied with all orders of the CCJ and continues to serve in its interim capacity by abstaining from planning a 2019 Budget. “We are an interim administration and I’m observing those regulations but the country cannot be without a government and I cannot be removed unless elections are held,” he said.

The President has set March 2, 2020 for the holding of elections and has called on the parliamentary opposition to return to the House to grant an extension of the government for the purpose of holding elections. While the Opposition continues to refuse, the President Granger said that he is seeking in-house advice on a suitable way forward.

He stated: “The Leader of the Opposition has stated repeatedly and clearly that he has no intention of going back to the National Assembly. In any event, I have not prorogued the National Assembly; I’ve not dissolved Parliament and I am awaiting the advice of my Attorney General on a date for the dissolution of Parliament.”

The Head of State said that the government will also keep its options open so that in the case of a national or financial emergency the National Assembly can be convened to deal with the emergency. “In the final analysis, I will dissolve Parliament when the time comes but Parliament will remain in session…so, if it’s necessary, I can reconvene Parliament.”

Vexatious litigant

Meanwhile, outside of the High Court, the Attorney General, who was present in court with the Solicitor General Nigel Hawke, said he was pleased with the decision. “The decision of the Chief Justice has restored the position with the rule of law in Guyana, and it is a very important principle for a hierarchical system of courts that you follow precedence and the principle of stare decisis is that you follow the precedence set by the higher courts, and since the CCJ had already determined this issue…it was not fit nor proper and it was of no legal effect for you to come to the lowest court to seek to have that decision of the CCJ, the apex court, overturned,” Minister Williams said.

He said the courts have been exhibiting great patience, while again alluding to the fact that the matter was ventilated at the level of the CCJ. “Mr. Nandlall has to be careful that he does not become a vexatious litigant because he was part and parcel of the representation of the Leader of the Opposition at all levels – CCJ, Court of Appeal, High Court – and it was not fit for him, and right as an officer of the court to try to seek to come to the first instance judge and try to raise the same issue,” Minister Williams said, noting that the court should not be abused.

Nandlall disappointed, to file appeal
Nandlall, on the other hand, expressed his disappointment. He maintained that Article 106 (6) and (7) of the Constitution is clear, that the Cabinet inclusive of the President shall resign. “Here it is, we have approached the court, there is a Cabinet that is refusing to resign and the Constitutional Court of the country is telling us, that because the CCJ didn’t make that order, then forever we are in perpetual error. In other words, the doctrine of precedent and the doctrine of stare decisis are now superior to the Constitution of the country,” Nandlall told reporters. He has since promised to appeal the case.