Georgetown: The Coalition Government is currently in “caretaker” mode, having been defeated on a vote of No-Confidence which was passed in the National Assembly on December 21, 2018, according to the consequential order given by the Caribbean Court of Justice (CCJ) on Friday.
While the court refrained from giving orders directing the date for such elections, it noted that the timeframe is outlined in the Constitution, which stipulates within three months, unless extended by two-thirds of the National Assembly.
In fact, the CCJ said that it was for the President, Leader of the Opposition, Parliament and the Guyana Elections Commission (GECOM), to decide on a date for elections.
President of the CCJ, Justice Adrian Saunders was among the five judges who heard the consolidated No-Confidence motion cases and the challenge to the President’s unilateral appointment of Justice (retired) James Patterson as chairman of GECOM.
During a Post-Judgment hearing yesterday at the CCJ’s Port of Spain, Trinidad and Tobago Headquarters, Justice Saunders, among other things, stayed clear of issuing coercive orders, which were requested by the Opposition. Notwithstanding this, the court ordered that Attorney General Basil Williams pay costs.
The court’s announcement comes at a time when Leader of the Opposition Bharrat Jagdeo, through his lawyers, had asked the regional court to make an order that the President, dissolve Parliament, and by proclamation, appoint a date for the holding of elections no later than September 18.
In affirming the CCJ’s position on the matter, Justice Saunders noted, “It is not, for example, the role of the court to establish a date on, or by which the election must be held or to lay down timelines or deadlines that in principle are the preserve of political actors guided by constitutional imperatives. The court must assume that these bodies and personages will exercise their responsibilities with integrity and in keeping with the unambiguous provisions of the Constitution bearing in mind that the No-Confidence motion was validly passed as long ago as December 21, 2018.”
Justice Saunders reasoned that due observance of constitutional democracy and the rule of law in Guyana rests, in large measure, with the conduct of the various branches of government—the President and the Cabinet, the Parliament and the Judiciary. All, he said, must be faithful to the spirit and letter of the Constitution and operate within the parameters given to each by the Constitution.
Given that the CCJ affirmed that the No-Confidence Motion was validly passed with the votes of 33 members of the 65-member National Assembly last December, it thereby triggered the provisions of Articles 106 (6) and (7), compels the resignations of the Cabinet including the President and the holding of general election, Justice Saunders stated.
Article 106(6) and (7) of the Constitution states as follows: 106 … (6) “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.”Further (7) adds, “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 elections.”
According to Justice Saunders, “Article 106 of the Constitution invests in the President and the National Assembly (and implicitly in GECOM), responsibilities that impact on the precise timing of the elections which must be held. It would not therefore be right for the Court, by the issuance of coercive orders or detailed directives, to presume to instruct these bodies on how they must act and thereby pre-empt the performance by them of their constitutional responsibilities.”
“The judiciary interprets the Constitution. But as we intimated in our earlier judgment, these particular provisions 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 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,” Justice Saunders noted.
He continued, “The Article goes on to state, among other things, that notwithstanding such resignation, the Government shall remain in office and that an election shall be held “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 …” The Guyana Elections Commission has the responsibility to conduct that election and GECOM too must abide by the provisions of the Constitution.”
The CCJ Judge said that given the passage of the No-Confidence motion on December 21, 2018, a general election should have been held by March 21, 2019, unless a two-thirds majority in the National Assembly had resolved to extend that period. He added that this is yet to be done. In January, court proceedings were filed challenging the validity of the No-Confidence vote, which effectively placed matters at a standstill.
The CCJ rendered its decisions on June 18, and there is no appeal from that judgment.
Moreover, Justice Saunders, said that it was important for the court to note that while government is to remain in office, notwithstanding its defeat and the resignation of the President and 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.
By convention, he added that government is expected to behave during this interim period as a caretaker and so restrain the exercise of its legal authority. The CCJ Judge explained that it is this caretaker or interim role that explains the three months deadline in the first instance that the Article lays down, in principle, for the holding of the fresh election.
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