Attorneys for Joseph Harmon, General Secretary of the Coalition APNU and the Attorney General Basil Williams submitted conflicting arguments before the Chief Justice (ag), Roxane George-Wiltshire Thursday.
The Chief Justice was hearing oral submissions on a case brought by New Amsterdam resident Compton Reid, which effectively challenges the validity of the No Confidence vote.
Reid moved to the High Court seeking orders to set aside the No Confidence vote of December 21 on the grounds that the vote of Charrandass Persaud was invalid because he is a citizen both of Guyana and Canada.
In oral arguments before the Chief Justice Mr Persaud’s Attorney, Sanjeev Datadin, argued for the Court to strike out the application.
Attorney for Mr Reid, Senior Counsel Neil Boston, said that Persaud did not qualify to be in the National Assembly because, according to Article 155 (1) of the Constitution, “by virtue of his own act” acknowledged allegiance and adherence to a foreign power, namely Canada.
Boston argued that Persaud became a citizen of Canada in 1998, renewed his passport three times and used his Canadian passport to travel in and out of Guyana.
Therefore, he contended that Persaud’s vote has to be deemed invalid. In such a case, he said there were only 32 valid votes in favour of the motion and 32 votes against. Once there is an equal number of votes in the House, any action is not carried.
Boston, therefore, argued that when the Speaker announced that the motion had been carried, he was acting in contravention of the Constitution, since Article 106 (6) of the Constitution requires a majority vote for a No Confidence motion to be passed.
Boston further argued that because Persaud was on a list of the Coalition APNU+AFC, there is no such thing as a conscience vote; he claimed that Persaud was duty bound to vote for the party which placed him in the House.
Boston concluded that the proceedings of the House were valid until the “Yes” vote of Persaud.
He argued that “it is a notional thing” which says that automatically when he voted, Persaud ceased to a Member of Parliament.
The arguments of Boston were adopted by Mayo Roberston, attorney for the Attorney General Basil Williams.
Attorney for APNU General Secretary Roysdale Forde, however, had a different argument on the validity of proceedings in the House.
He agreed that if Mr Persaud is disqualified from being a member of the National Assembly, then not just his No Confidence vote but all the votes he made in the three and a half years he sat in the House should also be null and void.
He agreed too that if Persaud is disqualified from being a Member of the House on the basis of his dual citizenship, then that would also affect others in the National Assembly who also hold dual citizenship.
The Chief Justice alerted Attorney Forde to the fact that the consequences of her decision would have a ripple effect, and Forde acknowledged this.
Persaud’s Attorney, Sanjeev Datadin argued that since the action brought by Mr Reid specifically challenges the legality of the presence of Mr Persaud in the National Assembly, what must be considered is the specific constitutional provisions that allow for challenging the election of a Member to the House.
He argued that questions regarding the qualification of any member of the National Assembly can only be done in the manner prescribed by Article 163 of the Constitution, namely, the National Assembly (Validity of Elections) Act and the accompanying rules.
That Act, he said, provides for any challenge to be done by way of an elections petition and this was not done.
In any case, the time for presenting such a petition to the Court is the subject of Section 5 of the said Act, which states “an election petition shall be presented within twenty-eight days after the results of the election” are published.
Therefore, Datadin argued that since over three and a half years have passed, the election of Persaud cannot now be questioned.
He said the only action that can be taken if Persaud was deemed to be disqualified from the House is for the Attorney General to fine him $50 for every day he sat in the House.
Further, he argued that Persaud is no longer a Member of the National Assembly, having been recalled on January 3 and the proceedings were filed in the Court on January 4. Therefore, he said there was no “live” issue to be debated.
In addition, Datadin argued that Persaud was an active member of the House when the vote was taken since his party did not recall him nor did he seek to no longer be a member of the House.
Even if the dual citizenship arguments were proven true and Persaud’s vote was deemed null and void, Datadin argued that the constitution preserves the proceedings.
As to the remedy, Datadin said Persaud can be prevented, in the future, from sitting in the House as a dual citizen, but the court cannot unwind the actions of Parliament.
Anil Nandlall, Attorney for Opposition Leader Bharrat Jagdeo, argued that the case should never have been taken to the court and that the Application by Reid was making a mockery of the Court.
He submitted to the Court similar arguments by Datadin on what should happen if Persaud’s election to the National Assembly is validated.
He noted that Article 165(2) of the Constitution provides an “omnibus provision” to validate any proceedings in the National Assembly in which a person not entitled to be present at or participate in, does so.
Article 165(2) of the Constitution states: “The Assembly may act notwithstanding any vacancy in its membership (including any vacancy not filled when the Assembly first meets after the commencement of this Constitution or after any dissolution of Parliament) and the presence or participation of any person not entitled to be present at or to participate in the proceedings of the Assembly shall not invalidate those proceedings.”
As such, Nandlall forcefully submitted that nowhere in the Constitution is there a provision which expressly or by implication stipulate that a consequence of a determination that a candidate was ineligible for election to the National Assembly is that his participation was ineffectual and unlawful.
If this were the case, he said then all the spending of the five national budgets passed with Persaud’s vote would have all been unlawful.
“The framers of the Constitution appreciated that the result of such a consequence would be disastrous.
“It would undermine the rule of law and bring about chaos and public disorder.
“The consequences of a determination that all votes cast by an ineligible member are invalid was fully appreciated by the framers of the Constitution who not only saved their validity by Article 165(2) but prescribed that such challenges should be made within the time prescribed and form set out in the National Assembly (Validity of Elections) Act, (namely 28 dates),” Nandlall stated.
