Charrandas Persaud
January 5 2018
-no action filed yet on 34 as majority
Private citizen Compton Herbert Reid yesterday filed an action, challenging the validity of former government parliamentarian Charrandas Persaud’s election as a Member of Parliament (MP) given his Canadian citizenship – the consequence of which, he contends, is that the no-confidence motion against the APNU+AFC government could not be regarded as having been passed.
In his action, which essentially seeks a declaration that Persaud could not have been qualified for election as a member of the National Assembly in the first place since he has pledged allegiance to Canada, Reid is also asking for an order setting aside the order of the Speaker that the no-confidence motion was passed. He is also asking for an order staying the enforcement of the December 21 no-confidence motion.
Additionally, he is asking the court for a conservatory order, preserving the status quo ante that the government remains in office until the hearing and determination of his application before the court.
On December 21st, a ‘yes’ vote from Persaud to an Opposition PPP/C sponsored no-confidence motion against the APNU+AFC government tipped the scales 33-32 in favour of the motion. Consequently, Speaker of the National Assembly Dr Barton Scotland ruled that the motion had been carried.
Scotland has refused to reverse his recognition of the December 21 no-confidence motion and Attorney General Basil Williams on Thursday signalled government’s intention to approach the courts to challenge the validity of Persaud’s vote and to seek an order staying the holding of general elections within the legally stipulated 90 days.
Up to the point of closure of the Registry yesterday afternoon, however, the government had not filed any action.
The action filed by Reid (applicant), lists Scotland, Persaud and the attorney general, as respondents.
Represented by a battery of attorneys from the chambers of Senior Counsel Rex McKay, who Williams had said formed part of government’s legal team in the issues to be contested, Reid is arguing that Persaud could not have been qualified for election as an MP since he also has allegiance to a foreign country—Canada.
The effect of Persaud’s nomination as an MP, given that he had been a citizen of Canada since at least 1998, Reid argues, is a contravention of Article 155 (1) (a) of the Constitution as he knew fully well that he had allegiance to another country.
That provision states, “No person shall be qualified for election as a member of the National Assembly who: (a) is by virtue of his or her own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state.”
The applicant reasons in his action, that since Persaud would not have been qualified for election as an MP, he would therefore not have been qualified to vote in the no-confidence motion of December 21st.
Against that backdrop, Reid is seeking from the court, a declaration that the vote cast by Persaud in favour of the vote of no-confidence was “null, void and of no legal effect,” while adding that by reason of the unlawful ‘yes’ vote cast, the no-confidence vote was also not passed.
The applicant is also hoping to be granted an order setting aside Scotland’s order that the no-confidence motion was passed by the National Assembly; an order staying any enforcement and declaration by the Clerk of the National Assembly that the motion was passed; as well as a conservatory order, preserving the status quo ante that the government remains in office until the hearing and determination of the reliefs he is seeking.
He also seeks any further or other reliefs the court may deem just to grant, as well as costs.
Farmer
Describing himself as a farmer of Lot 267 Errol’s Ville, Vryman’s Erven, New Amsterdam Berbice, Reid, in his urgent fixed date application, which is still to be assigned a date for hearing before acting Chief Justice Roxane George-Wiltshire, says that at all material times, Persaud purported to be a validly elected member of the National Assembly.
This, he said, was achieved by virtue of Persaud being extracted from the APNU+AFC geographic constituency list for Region 6—East Berbice, Corentyne for the 2015 National and Regional Elections, though he knew he had allegiance, obedience and adherence as a citizen, to a foreign power, Canada.
Reid deposed in his application that Persaud had been the holder of a valid Canadian passport No. AC773625 issued by the Government of Canada on 25th October 2017, which will expire on the 25th October 2022.
This current passport he said, was a replacement of the previous passport No. JX818124, which was issued to Persaud on 29th January 2013 and which expired on 29th January 2018.
Reid contends that in accordance with Article 156 (1) (a) “A member of the National Assembly shall vacate his or her seat therein – (c) if he or she ceases to be a citizen of Guyana.”
In addition, the applicant is arguing that by virtue of Article 156 (3) (a) and (b) of the Constitution, a member of the National Assembly ought to signal to the Speaker, any intention to defect from the list from which he/she would have been extracted.
To this end, he referenced where in Article 153 (a) it states, “A member of the National Assembly elected on a list shall cease to be a member of the Assembly, if- (a) he or she declares in writing to the Speaker or to the representative of the list from which his or her name was extracted that he or she will not support the list from which his or her name was extracted.”
He then goes on to note subsection (b) which requires that, “he or she declares in writing to the Speaker or to the representative of the list from which his or her name was extracted, his or her support for another list.”
Reid complains that at no time was any communication to this effect made by Persaud to Scotland, while charging that Persaud conspired with persons known and unknown to vote in favour of the no-confidence motion brought by Opposition Leader Bharrat Jagdeo.
Reid argues that under the Canadian Citizenship Act. RSC 1985 c. C-29 and its Regulations, an applicant for citizenship of Canada is obliged under Section 24 of the said Act, to swear an oath of citizenship that is stated in the Regulations of the Act, which includes swearing an oath of allegiance to Her Majesty the Queen of Canada.
On this point, Reid surmised that by virtue of his Canadian citizenship, Persaud is a person who, by his own act was under an acknowledgement of allegiance, obedience and adherence to a foreign power and therefore not qualified to be elected a Member of the National Assembly of Guyana and had no legal right to vote as an elected member of the National Assembly of Guyana.
The vote of “Yes” by Persaud in favour of the motion of no-confidence Reid said, is null and void and cannot be counted as a vote of an elected member of the National Assembly.
He reasoned that there were only 32 valid votes of “Yes” in favour of the motion of no-confidence and the exact amount against, which, according to him, did not amount to a majority of all the elected members of the National Assembly as provided for in Article 106 (6) of the Constitution.
The applicant advances that on this premise, the motion is null, void and of no legal effect to defeat the government in accordance with Article 106(6) of the Constitution.
Article 106 (6) says “the Cabinet including the President shall resign if the Government is defeated by the vote of a majority of all the elected members of the National Assembly on a vote of confidence.”
Meanwhile, Article 106(7) adds that “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.”
Reid argues that by virtue of Article 106 (6), the current total elected members of the National Assembly is 65 and said that the Constitution requires a majority of all the elected members to lawfully defeat the government upon a vote of confidence.
He, however, said that on the premise and declaration that the motion of no-confidence passed is null, void and of no legal effect without the required majority, the government could not have been declared defeated on a vote of confidence in accordance with Article 106 (6).
As far as Reid is concerned, there was a total of 32 votes on each side of the House, since Persaud ought to be considered disqualified from the entire voting process and since the vote he cast was void.
