CCJ rules majority is 33 not 34, No Confidence Motion ‘properly’ passed
The Caribbean Court of Justice Tuesday morning ruled that the December 21 No Confidence Motion was properly passed with a vote of 33 members in the 65-seat National Assembly.
Accordingly, the Court ruled that the provisions of Article 106 of the Constitution were triggered, namely that elections be called in three months unless a two-thirds majority of the House.
Article 106 (6) states: “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.”
The CCJ upheld the Guyana High Court judgement that even though the vote of Charrandass Persaud, who defected from his Government and voted with the opposition, did not affect the passage of the motion.
The Chief Justice Roxanne George (ag) had ruled that “is agreed that the passing of ordinary legislation by a vote of 33-32 constitutes a majority of those present and voting since 33 is the greater number of votes when compared to thirty-two 32.”
She said that Article 106(6) of our Constitution makes no reference to fractions and such does not require the application of the principle of rounding up.
As such, the majority required by Article 106(6), is at least thirty-three (33) members.
As a result, she found that No Confidence motion was carried as the requisite majority was obtained by a vote of 33 against 32. The CCJ upheld that decision.
On Charrandass Persaud, New Amsterdam farmer Compton Reid had contended that Charrandass Persaud had violated Articles 155(1)(a) and 156(3) of the Constitution of Guyana in that he, on the date of the no-confidence motion, was a dual citizen of Canada and Guyana and because he voted against the list he was elected to represent his vote was invalid and the No Confidence motion would thereby not have been carried.
Effectively, he sought to set aside or quash the order of the Speaker that the No Confidence motion, Resolution No. 101, was passed by the National Assembly.
The Court found that indeed, Charrandass Persaud was not qualified to sit in the National Assembly because he was a dual citizen.
The facts are that Charrandass Persaud was born at Betsy Ground, Canje, Berbice in 1952. He was issued with a Guyana passport in 1987 and the last time he renewed the passport was in 2012.
It was established he was also a citizen of Canada, having obtained a Canadian passport in 1998. He had renewed his passport and travelled using that Canadian passport. His passport was renewed as recently as October 2017.
The immigration records disclosed that he has presented himself to immigration authorities here in Guyana as a Canadian citizen utilizing a Canadian passport with the last record of such being August 2018.
A record of travel exhibited disclosed that he travelled on the said passport on August 24th, 2018. Copies of immigration forms produced showed that the second Respondent noted on these forms that he’s a Guyanese-Canadian.
This dual-citizenship meant that he was not qualified to sit in the National Assembly because Article 155 of the Constitution provides as follows: “No person shall be qualified for election as a Member of the National Assembly who is, by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state.”
But even so, the procedure and time for challenging his election had long past – in fact, years had passed.
Article 163 of the Constitution, in conjunction with the National Assembly (Validity of Elections) Act, Chapter 1:04, sets out the method and time frame for approaching the High Court to challenge the eligibility of an elected MP.
The eligibility of an elected member is is only permissible by way of election petition within twenty-eight (28) days of the official declaration of the results of the election, pursuant to Article 163(4) and Sections 3 and 5 Sub-section (1) of Chapter 1:04 and Rule 3 of the National Assembly (Validity of Elections) Rules as appended to that Act.
In cases where a Parliament is found to have been unlawfully elected, the Constitution makes no provision to invalidate or quash the Parliamentarian’s vote. All it does is provide a penalty in Article 58 of $50 per day for anyone who continues to sit in the National Assembly while disqualified. And so the vote of the Parliamentarian, in this case, Charrandass Persaud, cannot be questioned.
In any case, if a Member is deemed to be illegal, his vote still counts because of what Article 165(2) of the Constitution says: “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.”
Chief Justice had said she did not consider that Charrandass Persaud was a lead usurper “more especially as it appears that he was only a usurper as regards (the) No Confidence motion and not as regards other actions as a Member of Parliament.”
She reasoned that one would not be able to choose the No Confidence Motion to say that the vote was null and void because of the serious consequences for the government of the day while other matters including national budgets in which an unqualified member voted would remain intact.
She stated: “To my mind, this is to approbate and to reprobate. While I agree the continued illegality should not be permitted, whatever was done, a vote of an unqualified M.P. cannot and would not nullify that which is occurred in the past where the proceedings were lawful.
“In the context of this case, a party cannot be complicit in the perpetuation of an illegality and cry foul when things go wrong,” the Chief Justice had stated in the original ruling on the case.
The CCJ upheld the ruling of the Guyana High Court.