Georgetown: Attorney General and Minister of Legal Affairs, Basil Williams said both the Government and Cabinet remains legal following the decision by the High Court to deny an order by the Opposition mandating that the Coalition Government resign.
“This government is a legal. Government; the Cabinet is a legal entity in the government and that is the ruling of the CCJ (Caribbean Court of Justice),” the Attorney General stated moments after by Chief Justice Roxane George-Wiltshire handed down her decision.
This verdict, the AG declared, has restored the rule of law.
“The decision of the learned Chief Justice has restored the position with the Rule of Law in Guyana. It is a very important principle for a hierarchical system of courts that you follow precedence and the principle of stare decisis is that you follow the precedent set by the higher courts. Since the CCJ had already determined this issue, whether the Cabinet and the Government should resign, it was not fit nor proper and it was of no legal effect to come to the lowest court to seek to have that decision of the CCJ, the apex court, overturned.”
While the opposition’s lawyer, Anil Nandlall had contended that the Caribbean Court of Justice (CCJ) had overlooked giving a compulsory order compelling the President and Cabinet to resign, the Chief Justice relied on the decision of the CCJ in its consequential orders, ruling that she was bound by the orders of CCJ
She noted that the consequential order gave the government a caretaker status, as such, there could not have been any requirement for a mandatory order compelling the President and Cabinet to resign.
The Attorney General contended the case brought by the opposition was a misuse of the court system since Guyana’s highest court of appeal – the CCJ, did not agree to the request mandating the Cabinet and President to resign. He said that the issue was one already dealt with by the CCJ and agreed with the Chief Justice when she described the action by the Opposition as vexatious.
“Mr. Nandlall has to be careful he does not become a vexatious litigant because he was part and parcel of the representation of the leader of the opposition at all levels; at the CCJ, Court of Appeal, the High Court and it is not fit for him and right as an officer of the court to try to seek to come to the first instance judge and try to raise the same issue again. So, we are happy with the decision and we feel that the court should not be abused,” the Attorney General underscored.
Meanwhile, former AG Anil Nandlall said “this application is not only wholly misconceived, it is vexatious and an absolute abuse of the process of the court.”
He had asked the court to grant an order compelling Cabinet, including the President to resign in light of the successful passage of the No-Confidence Motion (NCM) against the government.
The Chief Justice ordered Nandlall to pay substantial cost, $500,000, to Attorney General Basil Williams, who was listed as the Respondent in his application. The premise of Nandlall’s application was that Government continues to violate the Constitution as it refuses to resign despite being defeated by a No-Confidence Motion, which was passed as long ago as December 21, 2018 in the National Assembly.
Kamal Ramkarran contended that the Caribbean Court of Justice (CCJ), which validated the passage of the motion against Government on June 18, erred when it omitted to issue an order compelling the resignation of Cabinet, including the President. He had reasoned that the CCJ in excluding to grant such an order was of the view that the political actors will act in accordance with the Constitution, the supreme law, moreso Article 106 (6) and 106 (7).
The Chief Justice, however, in refusing to grant the order sought by Nandlall, relied on paragraph eight of the CCJ’s judgment on Consequential Orders in the No-Confidence Motion appeals made on July 12.
That paragraph reads, “It is important, however, that the Court makes this point. In mandating that the Government shall remain in office notwithstanding its defeat and the resignation of the President and the 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. Chancellor Cummings-Edwards, citing Hogg1, the Canadian constitutional expert, was right to note that:”
“…The government continues in office as a caretaker government or an interim government until the next elections ensue and a President is appointed (or reappointed) depending on the results of that election.”
The paragraph continues, “By convention, the government is expected to behave during this interim period as a caretaker and so restrain the exercise of its legal authority. It is this caretaker or interim role that explains the three-month deadline, in the first instance that the Article lays down, in principle, for the holding of the fresh elections.”
According to the Chief Justice, “In my view and I so find in [paragraph] 8 of the judgment, the CCJ did make a pronouncement on the resignation of the President and the Cabinet. Given the language used by the CCJ, it is evident that the effect of the NCM was the immediate resignation of the Cabinet, but the court clearly stated that notwithstanding this, the tenure in office of the Cabinet including the President, as well at the government as a whole, “is on a different footing”—is that of being in a caretaker mode consequent on the passage of the said NCM.”
In this regard, the Chief Justice held that there could not have been, and cannot be any requirement for a mandatory order compelling the Cabinet, including the President to give effect to the resignation of the Cabinet, including the President which occurred by operation law consequent on the NCM.
The Chief Justice noted that since an order compelling Cabinet, including the President was a live issue before the CCJ, the High Court cannot say that the CCJ omitted to make an order which a party or counsel for a party in the appeals thinks the court should have made, more so one that was actually sought; or that it somehow fell into error in its pronouncement or in its consideration of the effect therefore as Nandlall has urged.
In any event, Justice George reminded that her court is bound by the pronouncements and decisions of the CCJ pursuant to the doctrine of precedent, adding that the pronouncements of the CJJ and the orders made in its Consequential Orders must be read dispassionately and objectively.
She added, “While [Nandlall] may be dissatisfied with the conclusion of the CCJ—he cannot seek to overturn or reinterpret it by filing an application such as this. The CCJ did not omit to pronounce on the issue as has been contended. On the contrary, the CCJ emphasised that it was making an important point in stating that the Cabinet including the President and the government are to act as a caretaker or interim government.”
During a hearing for Nandlall’s application, Solicitor General Nigel Hawke, who appeared for Williams, had argued that Nandlall’s application is a wanton abuse of the court process. Hawke submitted that the issues in Nandlall’s application were Res Judicata (already litigated) as the CCJ, the nation’s highest court, had already made its pronouncement on them; and in doing so refused to grant coercive orders against the Cabinet to compel its resignation.
Agreeing with the CCJ, Hawke had always maintained that government remains in office, but on a different footing, in a caretaker status. The Solicitor General argued that if Ramkarran is of the view that the CCJ erred, he cannot come to the High Court, a lower court, looking for redress; he has to go back to the CCJ.
He said that Ramkarran was basically asking the lower court to review a final decision of the CCJ. Hawke contended that Ramkarran’s application is a clear attempt to turn the hierarchical structure of the judiciary “upside down.” While Williams said that government is happy with the Chief Justice’s ruling, Nandlall, who is obviously displeased, said he will file an appeal.
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