Chief Justice May Have Erred In Confidence Vote Judgment

Submitted by Rickford Burke, President of The Caribbean Guyana Institute for Democracy (CGID)

Yesterday, January 31, 2018 Guyana’s Chief Justice, Hon. Roxann George-Wiltshire, upheld the constitutionality of the December 21, 2018 no confidence vote against the APNU+AFC coalition government of Guyana. The Caribbean Guyana Institute for Democracy (CGID) disagrees with the ruling of the Madam Chief Justice.

After careful deliberation with our legal counsels and Attorneys in Guyana, CGID has concluded that the Chief Justice erred in her interpretation of Article 156.3 (a) and (b) of the Guyana constitution by ignoring the intent of the framers in its construction. We believe the ruling is “activist” in nature, as rather than interpret the intent of the provision, which is the role of the court, the Chief Justice apparently reshaped Article 156.3 (a) and (b); thereby rendering the provision, as originally constructed, unenforceable.

CGID also believes the ruling is contradictory. Madam Chief Justice held that the election of a member of the National Assembly can only be challenged pursuant to an election petition within twenty-eight days of said election. Consequently, absent an elections petition and the mandated statutory provision for such having expired, she affirmed that the court lacked jurisdiction to entertain a challenge to the validity of Charrandass Persaud’s 2015 election to the National Assembly.  Accordingly, she declined to nullify Persaud’s election. Notwithstanding the lack of jurisdiction, the court proceeded, nonetheless, to declare that Persaud as a consequence of his dual citizenship was ineligible for election to the National Assembly, and that his presence therein was a breach of the constitution. Effectively, the Chief Justice disqualified Charrandas Persaud as a candidate for said election in which she held the court lacked jurisdiction to review.

We also believe that the Chief Justice exceeded the authority of the court by reinterpreting the “absolute majority” entrenchment elucidated by Sir. Dennis Byron, then Chief Justice of the Caribbean Court of Justice (CCJ), in his judgement in Attorney General v Cedric Richardson (2018 CCJ-17-AJ). Moreover, the Chief Justice’s declination to stay her judgement pending appeal is extraordinary and enigmatic.

The issues we have enumerated are fertile grounds for appeal. CGID therefore supports the government’s decision to appeal the judgement of the Chief Justice in keeping with the rule of law. We look forward to the intervention of the Guyana Court of Appeals and the CCJ.

Furthermore, CGID notes the Chief Justice’s order disqualifying members of the National Assembly who possess dual citizenship. Although such disqualification was not pursuant to an election petition, as the Chief Justice’s judgement seems to mandate, her order effectively disqualifies several sitting members of the National Assembly on both the opposition and government branches; including several government ministers, from being members of Parliament. Particularly, unless the Guyana Court of Appeals or the CCJ grants a stay of the judgment, government ministers with dual citizenship ceased to be ministers of as of January 31, 2019. Consequently, CGID urges His Excellency, President David Granger, to contemplate an immediate reassignment of ministerial responsibilities to ensure the continuity of government and delivery of services to the people of Guyana.

Although CGID disagrees with the judgment of the Madam Chief Justice, subject to appeal, we respect said judgment as a function of our democratic system of government which ensures that the rule of law is supreme. Further, we affirm the probity and distinguished service of the Honorable Chief Justice, and eschew any attack on her integrity and honor.

38 comments

  • More bacchanal in Guyana!

    Liked by 1 person

  • If there was fraud in the voting of any of the members the Vote is no good! Fraud can never stand! there is never to be a benefit from the fraud of any kind! And was there not Fraud? Yes, by a member, Yes and NO Court after seeing and learning that there was a Fraud must Null the Vote! All Must be Clean!

    Like

  • Activist judges have become one of the greatest threats to democracy.

    Like

  • Where did the chief justice do her training and what is her background?

    Like

  • Hal Austin

    I did not know that a chief justice was required to do training … I thought he or she was nominated, confirm and then appointment … from one of the lower courts …?

    Like

  • @ Lexicon,

    You are a good man. Your heart is in the right place. Let us leave it at that.

    Like

  • de pedantic Dribbler

    @Hal, yes indeed he is a good man with a big heart and careless reading habits… so let’s flesh out the real gist of his query and phrase it thus:

    I was not aware that the college or previous training of an experienced judicial officer duly and properly (one presumes) appointed as CJ should be QUESTIONED because one disagrees with her decisions.

    Shouldn’t it be taken as a given fact that this learned attorney was duly schooled at an accredited college and law school and that she has risen to her post by dint of skill, technical ability and the requisite subtle, political glad handing??… why would you insinuate that she is less than legally capable to the task at hand!

    You amaze with your back handed snubs … why so senor?? Why so?

    Like

  • @ David, That is not a picture of the Chief Jusice, Roxanne George-Wiltshire. That is Yonette Cummings, the Chancellor of Guyana. Proud to relate that both were students in my Contract law classes at some stage.

    Like

  • Thanks Jeff, you are comfortable with her decision?

    Like

  • Accordingly, she declined to nullify Persaud’s election. Notwithstanding the lack of jurisdiction, the court proceeded, nonetheless, to declare that Persaud as a consequence of his dual citizenship was ineligible for election to the National Assembly, and that his presence therein was a breach of the constitution. Effectively, the Chief Justice disqualified Charrandas Persaud as a candidate for said election in which she held the court lacked jurisdiction to review.

    Did she DISQUALIFY him as a candidate or did she hold that he was not qualified to be one at the time he was nominated?

    Like

  • Thanks Jeff, you are comfortable with her decision?

    Much obliged for the correction, David. I have no problem with the decision.

    Like

  • Mar 02, 2017

    ” Following a meeting late yesterday between President David Granger and Opposition Leader, Bharrat Jagdeo, it was proposed that Justice Yonette Cummings-Edwards be appointed as the Chancellor (acting). A proposal was also taken by President Granger that Justice Roxanne George-Wiltshire will be Chief Justice (acting).

    The Chief Justice functions were being performed by Justice Cummings-Edwards up to yesterday.

    Confirming the decision last evening, Minister of State, Joseph Harmon, disclosed that while Jagdeo was not in agreement with the decisions, the two judges will carry out their duties until a panel, that was established to interview candidates for the Chancellor and Chief Justice positions, submits its recommendations to the President.”

    https://www.kaieteurnewsonline.com/2017/03/02/justice-cummings-edwards-named-chancellor-ag/

    Like

  • David, the current photo is the correct one.

    Like

  • @ de Pedantic,

    Shouldn’t it be taken as a given fact that this learned attorney was duly schooled at an accredited college and law school and that she has risen to her post by dint of skill, technical ability and the requisite subtle, political glad handing??… why would you insinuate that she is less than legally capable to the task at hand!
    You amaze with your back handed snubs … why so senor??(Quote)

    It is your suspicious mind, old boy. I am just curious as to her professional background. Or is that not allowed? Already we know she was taught contract law by Jeff Cumberbatch. That is nice to know. Stop reading the operation of my mind. If in doubt ask the question.

    Like

  • @Hal
    “@ Lexicon,

    You are a good man. Your heart is in the right place. Let us leave it at that.”
    🙂 🙂
    I like that

    Like

  • @ Jeff Cumberbatch,

    Whether she disqualified them or declared them not qualified to be a candidate, the effect is the same. Her judgment caused all members with dual citizenship to cease to be members of the assembly, although their election was not nullified and could not have been unless pursuant to an election petition, which the relevant statute mandates must be filed within 28 days of the election. CGID’s contention is that the ruling affects their qualification or eligibility as a candidate to contest the election. So although the election it self was not vitiated, said disqualification in infact an inquiry into their election.

    Second, She ruled that a majority in a 65 sest house is 33, and that derived from a majority of at least one on top of half. Consequently, in a 64 seat House, based on her precedent, a majority is also 33, derived from a majority of at least half on top of 1. So is a major of 65 is 33, how can a majority of 65 also be 33?

    Like

  • Jeff Cumberbatch,

    CORRECTION: Whether she disqualified them or declared them not qualified to be a candidate, the effect is the same. Her judgment caused all members with dual citizenship to cease to be members of the assembly, although their election was not nullified and could not have been unless pursuant to an election petition, which the relevant statute mandates must be filed within 28 days of the election.

    CGID’s contention, therefore, is that the ruling affects their qualification or eligibility as candidates to contest the election. So although their election itself was not vitiated, said disqualification is infact an inquiry into their election.

    Second, She ruled that a majority in a 65 seat house is 33, and that derived from a definition of a majority being at least one on top of half. Consequently, in a 64 seat House, based on her precedent, a majority is also 33, derived from a majority defined at least of one on top of half.

    So if a major of 65 is 33, how can a majority of 64 also be 33?

    Like

  • So if a major(ity) of 65 is 33, how can a majority of 64 also be 33?

    @Mr Burke, Simply because the contrary votes in both cases would be fewer than 33. Why is this so difficult to understand? Concentrate on the contrast between the opposing numbers, and not the total itself! Are you suggesting that the governing administration did not have a majority of the seats in parliament? Or that all measures passed ny a 33-32 majority were legally invalid?

    Like

  • @Jeff

    You have decided to bowl of the long run up tomorrow?

    Like

  • @Jeff
    Nice to see you haven’t lost your masterful touch, Jeff. As a former student, I am proud. Yes, the decision of the Chief Justice of Guyana was brilliant. And the 34 argument was flawed from the start.

    Like

  • You have decided to bowl of the long run up tomorrow?

    @David, you are the skipper. We shall see… 🙂

    Like

  • WARU, Crazy & Unstable, Hogging the Blog

    But is the Justice kicking it over to CCJ because she may be unsure of a specific interpretation…we shall see.

    Glad to see that she upholds the view that Persaud should not have been sitting as any MP with his dual nationality, obviously a clear violation of Guyana’s laws relating to MPs holding dual nationality.

    Like

  • @Waru
    She’s not kicking anything over. The Government is appealing as is their right. I doubt there are grounds for an appeal to be entertained. She was thorough.

    Like

  • If the Dean and the other learned legal eagles believe the Chief Justice to have been thorough should we surmise those railing against the decision are 100% politically motivated?

    Like

  • @ Mr. Jeff Cumberbatch
    In summary, these are my issues with the.

    1..Article 165.3. This Article was constructed to prevent MPs from acting against their own list, or from supporting another list (crossing the floor.. After Raphael Trotman left the PNCR and Khemraj Ramjatan left the PPP, they both retained their seats as MPs,, although they were elected on, and extracted from, the list of those parties. In 2007 via Act 22 of 2007, the then ruling PPP joined with the PNCR to strengthen the provision to insert the written declaration provision and the recall provision. The hansard shows that the debate centered on the aforementioned prohibition as the legislative intent. However, the CJ interpreted that to mean they ceaae to be a member after the commission of the act. That was not the intent of the framers/legislative body. The intent is to declare before acting, and on declaration yo cease to be a member. Her ruling rendered the legislation unenforceable by reversing the effect, i.e, permitting the act which then subsequently subjects to expulsion. This turns the provision on its head. Shouldn’t courts be guided by legislative intent in interpreting legislation?

    I will agree with you on the point of her ruling on eligibility of MPs with dual citizenship if that aspect was commentary to guid policy and is unenforceable. My understanding of the ruling is that she declared such MPs to be ineligible for election and consequently their presence is in the Assembly is unconditional. If they did not cease to be MPs there wouldn’t be the necessity for her to invoke Article 16. 2, correct?
    If we’re to accept her and your reasoning on the entrenchment of absolute majority being 33 of 65, then doesn’t that redefine the requirement from a majority of all the members, to mean the greater number of all the members of the House? I cannot accept the 64 and 65 carry the exact same numerical value.
    My response to your question is that pass since 2011, legislation or votes never required the absolute majority entrenchment. They require a simply majorly of those voting.
    Moreover formation of the government doesn’t depend on which party secures a majority of seats in Parliament. The party with the plurality of vote in the presidential election forms the government. Parliamentary elections are separate but simultaneous

    Like

  • SirSimpleSimonPresidentForLife

    @David February 3, 2019 11:19 AM “should we surmise those railing against the decision are 100% politically motivated?”

    Yes David. The railing is entirely politically motivated.

    The law that says dual citizens cannot be elected to the parliament in the country of their birth is also a piece of political nastiness.

    But why are we acting surprised about political nastiness coming out of Guyana?

    Like

  • SirSimpleSimonPresidentForLife

    Political classes who feel that they can only succeed if other people fail.

    Working assiduously to assure the failure of others. The country fails. And the brightest, best, most hardworking, most hardworking migrate.

    And those left behind continue to fight for the political scraps.

    Like

  • SirSimpleSimonPresidentForLife

    most hardworking, most highly motivated

    Like

  • Correction: Sorry I keep using my phone whicj os difficult to type from

    @ Mr. Jeff Cumberbatch
    In summary, these are my issues with the GJ’s ruling.

    1..Article 165.3. This Article was constructed to prevent MPs from acting against their own list, or from supporting another list (crossing the floor).. After Raphael Trotman left the PNCR and Khemraj Ramjatan left the PPP, they both retained their seats as MPs, although they were elected on, and extracted from, the list of those parties. In 2007 via Act 22 of 2007, the then ruling PPP joined with the PNCR to strengthen the provision to insert the written declaration provision and the recall provision. The hansard shows that the debate centered on the aforementioned prohibition as the legislative intent. However, the CJ interpreted that to mean they cease to be a member after the commission of the act. That was not the intent of the framers/legislative body. The intent is to declare before acting, and on declaration you cease to be a member. Her ruling rendered the legislation unenforceable by reversing the effect, i.e, permitting the act which then subsequently subjects one to expulsion. This turns the provision on its head. Shouldn’t courts be guided by legislative intent in interpreting legislation?

    I will agree with you on the point of her ruling on eligibility of MPs with dual citizenship if that aspect was commentary to guide policy and is unenforceable. My understanding of the ruling is that she declared such MPs to be ineligible for election and consequently their presence in the Assembly is unconditional. If they did not cease to be MPs there wouldn’t be the necessity for her to invoke Article 165. 2, correct?
    If we’re to accept her and your reasoning on the entrenchment of absolute majority being 33 of 65, then doesn’t that redefine the requirement from a majority of all the members, to mean the greater number of all the members of the House? I cannot accept that 64 and 65 carry the exact same numerical value.
    My response to your question is that since 2011, legislation or votes never required the absolute majority entrenchment. They require a simply majorly of those voting.
    Moreover formation of the government doesn’t depend on which party secures a majority of seats in Parliament. The party with the plurality of vote in the presidential election forms the government. Parliamentary elections are separate but simultaneous. Although I believe its unconventional, thete is precedence for a minority government. The 2011 PPP government was.

    Like

  • @ Faye Fraser, lengthy is not the same as thorough !. Let’s see what the CCJ has to say

    Like

  • @ Rickford Burke

    It is interesting that you continue to provide a logical construct which is contra? the opinion(s) being offered here.

    In my layman’s opinion, which are not valued what Paddy shot at, missed, and then stepped in, DO NOT SEEM TO BE POLITICALLY MOTIVATED but are a rational, structured counter to the opinion(s) being offered here.

    It would be interesting to see the counter from those who are capable of countering heheheheh

    Like

  • How does government stay in office and acvording to the CJ ” function” when there is no common understanding of what that means. Guyana has no laws, Conventions nor guideline on how this is to be done. In light of this how does the resignation proceed? Should election be held before the appeal is exhausted?

    Like

  • 33-32 is plain Arithmetic…the no confidence motion against the govermnent was successful. Dissolve parliament, call fresh elections and may the best team win…Simple!!! Or at least it should be but Guyana is quite different. From the late 50’s until this present day what prevails in Guyana is a manufactured democracy, it’s building blocks being a suspended constitution, CIA supported trade unions, murder and intimidation, proportional representation, lies and deceit and it gets its nourishment from a toxic brew of racism encouraged by the colonial masters and fear mongering subliminal whisperings from the USA and CANADA…so while a no confidence motion is a simple undertaking in a normal democracy, it becomes a more complex matter in a guyanese democracy where the power brokers of old are still pulling the strings or a mixed bag of puppeteers both old and young to achieve the same objective of keeping their manufactured version of democracy in place in Guyana….ALL THE WHILE POOR PEOPLE SUFFERING…LIMITED ACCESS TO EDUCATION AND HEALTH CARE…STARVATION WAGES….HIGH FOOD PRICES AND DEVILISH WHISPERS IN THEIR EARS…”VOTE RACE”

    Like

  • @ keeping it real, I wonder which Guyana you’re talking about, certainly not the one I live in. Guyana is indeed a democracy but in any democracy you would find dishonest politicians, isn’t a former Barbados government Minister Donville Innis before the courts for Bribery in the USA?
    Guyanese have access to health care and education free of cost , infact so effective is the health care that non Nationals from countries bordering Guyana even benefit. In Terms of education Guyana is up there with the best in the Caribbean, just check the CSEC results the last 10 years, the performances of Guyanese students are unmatched. Perhaps if there is a downside to Guyana it is the very corrupt politicians who kept capitalizing on racial insecurity of the electorate.

    Like

  • @Rickford Burke
    Fair enough. So long as elections are held within the Constitutionally mandated time regardless of whether the CCJ has deigned to rule by the deadline. And may the best team win. Wouldn’t advise you to argue with Jeff though. From what I’ve read here you are not in his class.

    Like

  • Faye Fraser
    Beneath my dignity to engage you on your contemptuous diatribe 

    Like

  • @ Keep it real,

    What happens if the President dissolves Parliament and calls elections within the 90 period, and the CCJ subsequently finds the no confidence vote to be unconstitutional? What democratic or rule of law principle denies the government a right of appeal of a lower court’s ruling?

    Like

  • @Rickford Burke
    Sorry. I didn’t mean to sound contemptuous. It was just a bit of friendly advice. I’ve attempted to argue with Jeff in the past and failed miserably. But really, to argue that 34 is the majority of all elected members of a 65 seat Assembly is a bit off the wall.

    Like

Join in the discussion, you never know how expressing your view may make a difference.

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s