…former CCJ judge knocks ruling that government must resign immediately
…insists administration continuance in office constitutional
…says articles 106 (6) and 106 (7) must be read conjunctively
FORMER Judge of the Caribbean Court of Justice (CCJ), Professor Duke Pollard, has asserted that President David Granger’s government is in full compliance with the constitution of Guyana and charged that Chief Justice (ag), Roxane George-Wiltshire misdirected herself in ruling that the Cabinet ought to have resigned immediately after the passage of the no-confidence motion.
Attorney General Basil Williams has since applied to the Court of Appeal for an interim stay to halt the decision of the High Court, and to preserve the status quo of the Cabinet. The court will hear the application for a stay on Wednesday.
Justice Pollard who was also Director of the CARICOM Legislative Drafting facility for some two years, made the comments in an interview with the Guyana Chronicle on Saturday.
Political leaders and newspaper commentators have been arguing that the government was acting unconstitutionally and that Cabinet ought not to meet and must resign. Some of these commentators have even gone as far as suggesting that the country was heading into its worst constitutional crisis since independence. “Firstly, I wish to make it quite clear that up to this point in time in my respectful submission, the government has acted in full compliance with the constitution of Guyana,” Justice Pollard stated, adding “ the learned chief justice in my respectful opinion has misdirected herself in some important particulars.”
Professor Pollard advanced that as concerning the alleged requirement for the government to resign, “this is clearly not consistent with the language of commitment employed by the drafters of the constitution.” He said the relevant provisions of article 106 (6) of the constitution require the government to resign if it is ‘defeated’ by the vote of a majority of all the elected members of the National Assembly on a vote of confidence. However, Justice Pollard said the timeline and procedure to effect such resignation are set out in Article 106 (7), which states: “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.”
Consequently, Professor Pollard stated, “Articles 106 (6) and 106 (7) must be construed conjunctively and not disjunctively as the learned chief justice did.” Justice Pollard said in this context, the chief justice’s ruling that the Cabinet should have resigned on the night of December 21, 2018 immediately on the passage of the motion of confidence is misdirected.
He told this newspaper that “If this is what the draftsman intended he would have said “the government shall be deemed to have resigned on the passage of the confidence motion.” “Clearly, the draftsman did not intend this since his intention was definitively set out in article 106 (7).
According to Justice Pollard, in the result, there is no requirement of automaticity or resignation by the operation of law and further argued that “in the premises it is respectfully submitted that the government’s continuance in office is entirely consistent with the language of commitment employed by the draftsman and the conditions required for demitting office have not yet been satisfied.”
STAY OF JUDGEMENT
Justice Pollard also weighed in on the chief justice not granting the interim stay of her decision, saying “in the normal course of events, it is expected that the Court of Appeal will grant a stay and conservatory order to properly ventilate the issues in the chief justice’s decision. He stated however that it is “in the nature of a curious curiosity that the learned chief justice was reluctant to grant a stay of her judgement, given that it was taken for granted that the plaintiffs would have appealed her decision right up to the Caribbean Court of Justice if necessary.”
VALIDLY PASSED
The chief justice had ruled that the no-confidence motion was validly passed with the opposition securing a majority (33) over the government (32). Justice George-Wiltshire had also ruled that with the government being defeated, the Cabinet, including the President, ought to have resigned with immediate effect. She handed down the judgements in the cases– The Attorney General v The Speaker and Leader of the Opposition, and Christopher Ram v The Attorney General and the Opposition Leader.
The attorney general has filed appeals in both cases; however, in the interim, he is asking the Appellate Court to issue an order for an interim stay of the effect of the judgements and orders of the chief justice, and a conservatory order preserving the status quo ante of the Cabinet. He wants the President, Cabinet and all ministers of the government to remain in office until the hearing and determination of the appeal in the matter.
Subsequent to the ruling, the AG had maintained that the chief justice’s assessments failed to comprehend the difference between a simple majority and an absolute majority; the latter would have required the motion to secure 34 votes to be carried. The argument is based on the sitting members of the National Assembly being 65, an odd number; half of the House would be equal to 32.5 members.
Considering there can be no “half of a person”, the legal minds had contended that 33, therefore, represents half of the House, while 34 would then constitute an absolute majority. Williams reminded the media that former CCJ President, Sir Charles Byron, had similarly determined Guyana’s Assembly to have both a simple and absolute majority. The legal affairs minister stated further, that similar rulings on the simple and absolute majority in other jurisdictions have been pronounced upon by current President of the CCJ, Justice Adrian Saunders.
