Dear Editor,
Paragraph 5 of the judgment of the Caribbean Court of Justice delivered on July 12, 2019, on consequential orders flowing from the passage of the No-Confidence Motion passed by the National Assembly on December 21, 2018, stated:
“The Judiciary interprets the Constitution. But as we intimated in our earlier judgment, these particular provisions [Article 106 (6) and 106 (7)] require no gloss on the part of the Court in order to render them intelligible and workable. Their meaning is clear and it is the responsibility of the constitutional actors in Guyana to honour them. Upon the passage of a vote of no confidence, the Article requires the resignation of the Cabinet including the President. The Article goes on to state that notwithstanding such resignation, the Government shall remain in office …. “
Seeming to me to be more a pronouncement than an intimation, paragraph 56 of the judgment on the substantive issues rendered on June 18, 2019, said: “The provisions of Article 106 (6) and (7) are clear on their face. They hardly require further interpretation on the part of the Courts.”
The average person reading paragraph 56 would understand as Justice Roxane George, CJ, in her judgment of January 31, 2019, in the case in the High Court did, “that the provision (regarding the resignation of the Cabinet) requires that the resignation of the Cabinet takes effect with immediate effect on the success of a NCM.”
Yet, having said that no further interpretation was required by the Court, the region’s eminent jurists chose to put not only an unwarranted gloss on the provision but created confusion and undermined a motion of the National Assembly by stating that “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”.
Except if I buy without question the old, worn and disproved adage “as wise as a judge”, it is a mystery how these five judges could perceive with such a degree of certainty what Article 106 “envisages” without any consideration or analysis. In so doing, they felt confident enough to overturn by implication the ruling of the Chief Justice without any arguments on the matter. As an officer of the Court but also as a litigant in the matter, I cannot help but hold that the CCJ has taken a provision on which no gloss was needed, created a climate of confusion and showed the Court to be timorous and careless about the consequences of their judgment.
As wise as they are, the five judges collectively could not see the distinction between Article 106 (6) dealing with the Cabinet and Article 106 (7) dealing with the Government, not on something that the Constitution envisages but as a clear distinction which itself needs no gloss. In my view, that failure alone makes the CCJ largely responsible for the crisis now confronting our country in which the life of the Government has expired but which behaves with gay abandon and total disregard of the CCJ and its ruling.
Having read both judgments of the CCJ more often than ought to be necessary, I state confidently that the timing of the resignation of the Cabinet was not among the questions the CCJ considered or addressed in the ruling of the Court or the separate concurring judgments by three of the judges in the substantive decision delivered on June 18, 2019. Those questions set out in paragraph 12 and the paragraphs of the judgment addressing them are as follows:
(a) Does Article 106(6) apply to ‘No Confidence Motions’? Addressed in paragraphs 13 to 22.
(b) What is the majority necessary for the passage of a No-Confidence Motion? Addressed in paragraphs 23 to 27.
(c) Does the Court have jurisdiction to inquire into the issue of Mr Persaud’s disqualification from being a member of the National Assembly? Addressed in paragraphs 27 to 45.
(d) Was Mr Persaud precluded from voting in the manner he did in light of the anti-defection provisions (Art 156(3) of the Constitution? Addressed in paragraphs 46 to 52.
(e) Does Article 165(2) of the Constitution preserve the validity of Mr Persaud’s vote? Addressed in paragraphs 53 to 55.
(f) What consequences attend the answers to the above questions?
On this latter question, all the main judgment stated was that Leading Counsel for both sides had asked, and the Court had agreed to hear further submissions before deciding what consequential orders it should make.
The declarations and orders were set out in paragraph [9] of the judgment delivered on July 12, 2019, and all the Court found it necessary to declare in respect of Article 106 was that the motion was properly passed and that the clear provisions of Article 106, which they managed to confuse, “immediately became engaged” – whatever that means.
Many persons have concluded that the consequential orders were of no consequence. I am not even so sanguine. In fact, the Granger Government has used it to legitimise their brazen, unlawful and illegitimate conduct. No wonder, therefore, that the CCJ’s strange ruling has done little to recommend them for acceptance by those countries in the region which have preferred to keep the Privy Council as their highest appellate court. While I find that reluctance most regrettable, I have to be truthful and state that I find it perfectly understandable.
As a consequence of the CCJ’s failure, democracy at the legislative and national level in Guyana has suffered grave damage while at a personal level, I have sympathy for Mr Anil Nandlall, the former Attorney General, the victim of collateral damage. Nandlall had approached the High Court for an Order compelling the Cabinet to resign as the Court had ruled several months earlier, a decision which was never fully canvassed by the CCJ but on which it made its most unfortunate statement. Not only did the High Court refuse to entertain what seemed to me to be a reasonable request, but it imposed one of the highest costs ever awarded in such a matter – G$500,000 – in favour of the Attorney General, Mr Basil Williams. Hopefully that award would not have a chilling effect on future constitutional and public interest cases.
Fortunately for Mr Williams, no costs were awarded against him when he and his high-priced team spent so much valuable Court time and taxpayers’ money to make some illogical, unsound and baseless arguments to support their hopelessly perverse claim that the majority of 65 is 34.
My hope is that the Guyana Court of Appeal would recognise its duty to hear Mr Nandlall’s appeal with unusual speed. After all, all our courts need is to regain the confidence of the public, which to varying degrees has been shaken by some of their rulings in the NCM cases. Unfortunately, the damage done to democracy cannot be so easily repaired.
Yours truly,
Christopher Ram
Attorney-at-Law
and litigant