‘Judicial adventurism’

The Appellate Court’s panel of three justices: Chancellor Edwards-Cummings, Justice Rishi Persaud and Justice Dawn Gregory-Barnes, in a 2-1 split decision — with Justice Persaud dissenting — surprised many objective observers by reversing the holding of the High Court that the 33-32 vote in favour of the NCM in the National Assembly was valid. What occasioned the surprise was the rationale offered by the two justices for their decision.
They accepted the arguments offered by the Grenadian attorney for the Government that, unlike the passage of “normal” legislation, that of a no-confidence motion necessitated an “absolute” rather than a “simple” majority. It is critical to note that the pertinent article of the Constitution, Art 106 (6), does not qualify the word “majority”, as indeed is the case in the entire Constitution. The High Court had found that in the instant case the distinction was irrelevant, but had used a totally different definition of the terms, as inferred by our Constitution.
Under the heading “Voting”, Art 168 (1) says, “Save as otherwise provided by this Constitution, all questions proposed for decision in the National Assembly shall be determined by a majority of the votes of the members present and voting.” This, the CJ pointed out, was a “simple majority”. Article 106 (6), on the other hand, says, “The Cabinet including the President shall resign if the government is defeated by a majority of the elected members of the National Assembly on a vote of confidence.” She pointed out that this was an “absolute majority”, and in fact is the distinction made in India, where votes of no-confidence are quite common, and in fact require only a simple majority.
As the CJ did, India also recognise as the “majority” the entity in the Assembly with one seat more than all the others combined out of the total elected seats. In Guyana, this was 33 vs 32 in our 65-member Assembly.
In her Appellate decision, the Chancellor alluded to Article 164, which outlines the various “majorities” needed to alter specific Articles of the Constitution, based on their significance. It includes the “majority” of Art 106 as the lowest, and proceeds upwards to those that need 2/3 votes of the members of the Assembly to those that need a majority, followed by a referendum.
Yet she chose to accept the arcane suggestion of the Government’s attorney that because the results of an NCM are so “important”, it should not only be classified as an “absolute” majority that is at variance with the CJ’s and other jurisdictions’ definition, but also adopted the attorney’s formula for calculating it. That is, to divide the total number of seats, 65, by 2 to yield 32.5., round up this to 33, and then add 1 to arrive at 34 as the needed majority to pass this “important” motion.
They ignored that mathematical “set theory” would have delivered the CJ’s result.
What the Chancellor and Justice Gregory-Barnes have done is not only to arbitrarily foist a notion of “absolute majority” onto the Constitution, which is totally at variance with its own usage, but also to introduce a formula to suggest she is using it formalistically, i.e. merely applying “law to facts”, even though her “justification” of the NCM being “very important” betrays her subjective value judgement for their own agenda.
Important to whom, in the present context? As one noted jurist warned: “‘Judicial activism’ should not become ‘judicial adventurism’ and lead a judge going in pursuit of his own notions of justice, ignoring the limits of the law.”
What these two Justices of the Appellate Ct have done is to open up a Pandora’s Box into the operations of the National Assembly. Unless and until their decision is overturned by the CCJ, who will decide which motion or Bill laid before the National Assembly is or is not “important” enough to demand this “absolute majority”??
In our estimation, we believe this definition of “majorities” is best left to the Legislature, by the representatives of the people.