Attorney General seeks High Court’s determination of several issues related to No Confidence Motion and Vote

The Court is being asked to determine whether the Speaker’s Ruling that the motion of no confidence carried by a vote of a majority of all the elected members of the National Assembly is unlawful, null and void being contrary to Article 106 (6) of the Constitution of the Cooperative Republic of Guyana.

Attorney General seeks High Court’s determination of several issues related to No Confidence Motion and Vote

The second case challenging the legality of the no-confidence motion has been filed, but this one by the Attorney General of Guyana.

In Court documents seen by News Source, the Attorney General in the matter against the Speaker of the National Assembly and the Opposition leader, is asking the Court to determine several issues related to the motion and vote.

The Court is being asked to determine whether the Speaker’s Ruling that the motion of no confidence carried by a vote of a majority of all the elected members of the National Assembly is unlawful, null and void being contrary to Article 106 (6) of the Constitution of the Cooperative Republic of Guyana.

Additionally, the Court has been asked to say whether the motion of no-confidence upon a division vote of 33:32 Members of the National Assembly was validly passed as the requisite majority of all the elected members of the National Assembly pursuant to article 106 (6) of the Constitution.

The filing also requests the Court’s intervention to determine whether the requisite majority of all the elected members of the National Assembly ought properly to be 34 votes; In addition, the Attorney General wants the Court to determine whether the President and all Ministers of the Government can remain in Office as a majority vote was not duly carried in accordance with Article 106 (6) of the Constitution and whether the Court can make an order setting aside or nullifying the Speaker’s ruling that the motion was carried. He is also requesting that the Court determines whether it can grant a conservatory order, preserving the status quo ante that the President and all Ministers of the Government remain in office until the hearing and determination of the questions being asked.

The Attorney General said he has several grounds for the application and those include that he can refer or state a question of law to the High Court especially in relation to this serious constitutional issue on the validity of a no confidence vote pursuant to Rule 61.03 of the Civil Procedure Rules 2016.

The Government’s position is that there was not a majority passage of the no-confidence motion. The Opposition disagrees and believes that the Government is attempting to buy time in office.

Under the Constitution, on the passage of a no-confidence motion, elections must be called within three months or at a time agreed to by two-thirds of the National Assembly.

 

See Full Application by the Attorney General below:

 

Mr. Basil Williams SC,MP, Attorney General of Guyana

Mr. Nigel Hawke, Solicitor General, Ms. Debra Kumar,

Deputy Solictor General & Mrs. Beverly Bishop –

Cheddie, Assistant Solictor General

Attorneys-at-law

95 Carmichael Street, North Cummingsburg, Georgetown

Tel: 225-3607

Email: basil_wil@yahoo.com

IN THE HIGH COURT OF THE SUPREME COURT OF JUDICATURE OF GUYANA

CIVIL JURISDICTION

Court File No: 2019-HC-DEM-CIV-FDA

   ATTORNEY GENERAL OF GUYANA                                                                   Applicant

                                                                                                -and-               

  1. BARTON SCOTLAND, Speaker of the National Assembly of Guyana
  2. BHARRAT JAGDEO, in his capacity as Leader of the Opposition.

                                           Respondents

 

INFORMATION FOR COURT USE

  1. This proceedings is commenced as a:

[ ] Statement of Claim

[X] Fixed Date Application by way of Case Stated pursuant to Rule 61:03 of the Civil Procedure Rules

  1. This proceeding falls under the High Court’s:

[ ] Appellate Jurisdiction

[ ] Admiralty Jurisdiction

[ ] Commercial Jurisdiction

[ ] Criminal Jurisdiction

[ ] Family Jurisdiction

[x ] Regular Jurisdiction

  1. This proceeding is a (n ):

[ ] Admiralty proceeding in personam

[ ] Admiralty proceeding in rem

[ ] Probate proceeding

[ ] Proceeding for judicial review

[X ] Proceeding for relief under the Constitution

[ ] Proceeding for other Administrative Order

[ ] Proceeding commenced under (name of Act)

[ ] Other proceeding

 

  1. I certify that the above information is correct to the best of my knowledge

 

Date: ____________________________                   ____________________________                                                                             Signature of Attorney-at-Law

                                     

IN THE HIGH COURT OF THE SUPREME COURT OF JUDICATURE OF GUYANA

CIVIL JURISDICTION

Court File No: 2019-HC-DEM-CIV-FDA

 

   ATTORNEY GENERAL OF GUYANA                                                                     Applicant

                                                                                                -and-

  1. BARTON SCOTLAND, Speaker of the National Assembly of Guyana
  2. BHARRAT JAGDEO, in his capacity as Leader of the Opposition.

Respondents

 

_____________________________________

INFORMATION FOR COURT USE

________________________________________

 

 

 

 

IN THE HIGH COURT OF THE SUPREME COURT OF JUDICATURE OF GUYANA

CIVIL JURISDICTION

Court File No: 2019-HC-DEM-CIV-FDA

ATTORNEY GENERAL OF GUYANA                                                                        Applicant

                                                                                                -and-

  1. BARTON SCOTLAND, Speaker of the National Assembly of Guyana
  2. BHARRAT JAGDEO, in his capacity as Leader of the Opposition.

Respondents

FIXED DATE APPLICATION BY WAY OF CASE STATED PURSUANT TO RULE 61.03 OF THE CIVIL PROCEDURE RULES

TO THE RESPONDENTS

A LEGAL PROCEEDING HAS BEEN COMMENCED by the applicant. The claim made by the applicant is set out in the following pages.

THIS APPLICATION will come on for a hearing on           day of January, 2019 at                     the

IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or to be served with any documents in the application, you or an Attorney-at-Law for you must prepare an Affidavit in Defence in Form 10 C prescribed by the Civil Procedure Rules 2016, serve it on the Applicant’s Attorney-at-Law or a Registry, AT LEAST (TWO of FOUR) as applicable) DAYS before the date fixed for the hearing of the application, and you or your Attorney-at-Law must appear at the hearing.

IF YOU FAILED TO APPEAR AT THE HEARING AN ORDER OR JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO OPPOSE THIS APPLICATION BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE.

THIS NOTICE OF APPLICATION has no validity unless it is served on you at least (seven or four, as applicable days before the date fixed for the hearing of the application.

 

Date: __________________________________       _________________________________

Signature of Registry

Issued by:

Supreme Court Registry

Supreme Court Georgetown,

Avenue of the Republic,                                    Georgetown.

 

TO: 1.Dr. Barton Scotland

       Speaker of the National Assembly of Guyana

       Parliament Building, Brickdam, Georgetown

 

  1. Mr. Bharrat Jagdeo

           Leader of the Opposition

           Church Street, Queenstown, Georgetown.

APPLICATION

  • The applicant makes application for determination of the following questions pursuant to rule 61.03 (1) (a) and (b):
  • Whether the Speaker’s Ruling that the motion of no confidence debated in the National Assembly on the 21st day of December, 2018 was carried by a vote of a majority of all the elected members of the National Assembly is unlawful, null and void being contrary to Article 106 (6) of the Constitution of the Cooperative Republic of Guyana. (The Constitution)
  • Whether the motion of no-confidence upon a division vote of 33:32 Members of the National Assembly was validly passed as the requisite majority of all the elected members of the National Assembly pursuant to article 106 (6) of the Constitution.
  • Whether the requisite majority of all the elected members of the National Assembly ought properly to be 34 votes;
  • Whether the President and all Ministers of the Government can remain in Office as a majority vote was not duly carried in accordance with Article 106 (6) of the Constitution;
  • Whether the Court can make an order setting aside or nullifying the Speaker’s ruling that the motion was carried;
  • Whether the court can make an order staying the enforcement of Resolution 101 declared by the Clerk of the National Assembly to have been passed on the 21st of December, 2018 in the National Assembly.
  • Whether the court can grant a conservatory order, preserving the status quo ante that the President and all Ministers of the Government remain in office until the hearing and determination of the questions sought herein.
  • The grounds for the application are:
    1. The Applicant can refer or state a question of law to the High Court especially in relation to this serious constitutional issue on the validity of a no confidence vote pursuant to Rule 61.03 of the Civil Procedure Rules 2016.
    2. The First Named Respondent is the Speaker of the National Assembly, duly elected in accordance with Article 56 of the Constitution and as Speaker he is responsible for administration of the affairs of the Parliament and who also serves as the spokesperson and representative of the National Assembly.
    3. The Speaker of the National Assembly presides over the national business conducted in Parliament and in the carrying out of his duties therein is bound by the Constitution of Guyana.
    4. The Leader of the Opposition is the person who moved the no confidence motion against the Government.
    5. On the 21st December, 2018 the Speaker presided over the debate of a no-confidence motion moved by the Leader of the Opposition Mr. Bharrat Jagdeo against the Government of Guyana.
    6. Article 106 (6) of the Constitution of Guyana provides that 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 no confidence.
    7. Article 106 (7) of the Constitution provides that notwithstanding its defeat, the Government shall remain in office and shall hold elections in three months, or such longer period as the National Assembly 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 election.
    8. That the National Assembly of Guyana comprises 65 members and that mathematically, half of all the elected members of the current National Assembly would result in a fraction of 32.5. In the instant case as half of 65 results in the fraction of 32.5, that figure should then be rounded to the next whole number being 33 which would now represent half of the elected members, the majority thereby being a number greater than half means that ‘1’ ought to have been added to the whole number ‘33’ to calculate an absolute majority of 34.
    9. The current total elected members of the National Assembly is 65 members and therefore the majority of all the elected members is half plus one comprising a vote of 34 or more members.
    10. On the 21st December, 2018 the Speaker of the National Assembly proceeded with a division upon the motion of no-confidence and the Clerk of the National Assembly recorded the count of the vote upon the division as 33 Yes and 32 No.
    11. The motion of no confidence was not validly passed by 34 or more of all the elected members of the National Assembly.
    12. In the circumstances the motion of no confidence is void and has no legal effect to defeat the Government on a vote of no confidence in accordance with Article 106 (6) of the Constitution.
    13. The Speaker’s ruling and reasons dated January 3, 2019 positively reinforces the necessity for intervention by the Court in these circumstances when he opined: “I must tell you Honourable members that the issues which we now face calls us to look outside of the Parliament to find answersfull, final and complete settlement of these issues by a Court of competent jurisdiction will place beyond doubt any questions which may exist and serve to give guidance to the Speaker and the National Assembly.”
    14. The Speaker has expressly called for clarity by the courts in order that guidance can be given to the National Assembly in this case and for future matters of this nature.
    15. It is in the interest of justice that the Court deals with this Application expeditiously having regard to the imminent consequences which flow from Article 106 (6) and (7) of the Constitution;
    16. The Applicant is entitled to a hearing and decision within a timely manner; and
    17. That the overriding objective favours the granting of the Orders sought herein and also the general public interest.
  • The following documentary evidence will be used at the hearing of the application:
    1. Affidavit of Jennifer Ayana Mc Calman
    2. Letter from the Clerk of the National Assembly dated 24th December, 2018
    3. Certificate on Resolution No. 101 signed by the Clerk of the National Assembly

 

Date:                                                                                  Attorney –at- Law

 

IN THE HIGH COURT OF THE SUPREME COURT OF JUDICATURE OF GUYANA

CIVIL JURISDICTION

Court File No: 2018-HC-DEM-CIV-FDA

     ATTORNEY GENERAL OF GUYANA                                                                                     Applicant

                                                                                                -and-                           

  1. BARTON SCOTLAND, Speaker of the National Assembly of Guyana
  2. BHARRAT JAGDEO, in his capacity as Leader of the Opposition.

Respondents

FIXED DATE APPLICATION BY WAY OF CASE STATED

Mr. Basil Williams SC,MP, Attorney General of Guyana

Mr. Nigel Hawke, Solicitor General, Ms. Debra Kumar,

Deputy Solictor General & Mrs. Beverly Bishop –

Cheddie, Assistant Solictor General

Attorneys-at-law

95 Carmichael Street, North Cummingsburg, Georgetown

Tel: 225-3607

Email: basil_wil@yahoo.com

 

IN THE HIGH COURT OF THE SUPREME COURT OF JUDICATURE OF GUYANA

CIVIL JURISDICTION

 

Court File No: 2018-HC-DEM-CIV-FDA

 

ATTORNEY GENERAL OF GUYANA                                                                            Applicant

                                                                                                -and-

                                                      

  1. BARTON SCOTLAND, Speaker of the National Assembly of Guyana
  2. BHARRAT JAGDEO, in his capacity as Leader of the Opposition.

 

Respondent

AFFIDAVIT OF JENNIFER AYANA Mc CALMAN

I, JENNIFER AYANA Mc CALMAN, of Lot 95 Carmichael Street, North Cummingsburg, Georgetown, MAKE OATH AND SAY:

  1. That I am the State Solicitor and I am duly authorized to swear and depose to this Affidavit on behalf of the Applicant, the Attorney General of Guyana, who is the principal legal adviser to the Government of Guyana pursuant to Article 112 (1) of the Constitution of Guyana.(Hereinafter referred to as the Constitution)
  1. The Attorney General is also an elected member of the National Assembly of Guyana and Minister of Legal Affairs.
  2. That the facts deposed to in this Affidavit are within my personal knowledge and are true and correct and where stated to be on information, I verily believe the same to be true to the best of my knowledge, information and belief.
  3. The First Named Respondent holds the Office of Speaker of the National Assembly, duly elected in accordance with Article 56 of the Constitution and as Speaker he is responsible for the administration of the affairs of the Parliament and serves as the spokesperson and representative of the National Assembly.

 

  1. The Second Named Respondent is the Leader of the Opposition and the person who moved the no confidence motion against the Government.
  2. The Speaker of the National Assembly presides over the national business conducted in Parliament and in the carrying out of his duties therein is bound by the Constitution.
  3. On the 21st December, 2018 the Speaker presided over the debate of a no-confidence motion moved by the Leader of the Opposition Hon. Bharrat Jagdeo the Second Named Respondent against the Government of Guyana.
  4. The Second Named Respondent was present and voted as an elected member of the National Assembly during the motion of no confidence.
  5. That Article 106 (6) of the Constitution provides that 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 no confidence.
  • That Article 106 (7) of the Constitution of Guyana provides that notwithstanding its defeat, the Government shall remain in office and shall hold elections in 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 election.
  • I am advised by my Attorneys-at-Law and verily believe that the current total elected members of the National Assembly is 65 members and that the majority of all the elected members of National Assembly as legally prescribed by Article 106 (6) of the Constitution is tantamount to an absolute majority.
  • An absolute majority legally requires a vote of 34 or more of the elected members of the National Assembly to lawfully defeat the Government upon a vote of no confidence.
  • I am advised by my Attorneys-at-Law and verily believe that the current total elected members of the National Assembly is 65 members and therefore the majority of all the elected members is half plus one comprising a vote of 34 or more members.
  • On the 21st December, 2018 the Speaker of the National Assembly proceeded with a division upon the motion of no confidence and the Clerk of the National Assembly recorded the count of the vote upon the division as 33 ‘Yes’ and 32 ‘No’.
  • The First Named Respondent after the division made a ruling that the motion of no confidence was carried and passed by the National Assembly of Guyana based upon the 33 votes for the motion of no confidence.
  • I am advised by the Hon. Amna Ally, MP, Minister of Social Protection and Government Chief Whip, and verily believe that she received from the Clerk of the National Assembly, a copy of the letter dated 24th December, 2018 advising that the motion of no confidence against the Government of Guyana was considered and passed in the National Assembly on 21st December, 2018 by 33 votes for and 32 votes against and also a certificate of Resolution 101 signed by the clerk of the National Assembly. The said letter detailed the names of members of the National Assembly and how they voted on the motion and certificate. I exhibit hereto a copy of the said letter and certificate on the Resolution marked “A”.

 

  • I am advised by my Attorneys-at-Law and verily believe that on the 21st December, 2018 there was a miscalculation of the majority of all elected members of the National Assembly as required under Article 106(6) of the Constitution for the Government to be defeated on a vote of no confidence. In order for the Government to be defeated on a vote of no confidence, 34 or more votes of all the elected members in favour of the motion was required instead of 33.
  • I am also advised by my Attorneys-at-Law and verily believe that the framers of the Constitution by requiring the vote of a majority of all the elected members of the National Assembly as set out in Article 106 (6) have set the requirement as an absolute majority.
  • I am further advised by my Attorneys-at-Law and verily believe that the National Assembly of Guyana comprises 65 members and that mathematically, half of all the elected members of the current National Assembly would result in a fraction of 32.5. In the instant case as half of 65 results in the fraction of 32.5, that figure should then be rounded to the next whole number being 33 which would now represent half of the elected members, the majority thereby being a number greater than half means that ‘1’ ought to have been added to the whole number ‘33’ to calculate an absolute majority of 34.
  • Moreover, I am advised by my Attorneys-at-Law and verily believe that on the 21st December, 2018 the 33 votes in favour of the motion of no confidence did not amount to a majority of all the elected members of the National Assembly contrary to Article 106 (6) of the Constitution.
  • The Speaker’s ruling and reasons dated January 3, 2019 positively reinforces the necessity for intervention by the Court in these circumstances when he opined: “ I must tell you Honourable members that the issues which we now face call us to look outside of the Parliament to find answersfull, final and complete settlement of these issues by a Court of competent jurisdiction will place beyond doubt any questions which may exist and serve to give guidance to the Speaker and the National Assembly”.
  • The Speaker has expressly called for clarity by the courts in order that guidance can be given to the National Assembly in this case and for future matters of this nature and this underscores why the court has to pronounce on the interpretation to be given to article 106 (6) of the Constitution.

 

  • I am advised by my Attorneys-at-Law and verily believe that in the circumstances the motion of no confidence is void and has no legal effect to defeat the Government on a vote of no confidence in accordance with Article 106 (6) of the Constitution.
  • I am advised by my Attorneys-at-Law and verily believe that the application herein is urgent and of national importance and public interest and ought to be determined speedily given the legal consequences of a resolution of no confidence and in the circumstances the Court ought to consider the questions referred to in the application herein for:

 

  • Whether the Speaker’s Ruling that the motion of no confidence debated in the Parliament on the 21st day of December, 2018 was carried as being a majority of all the elected members of the National Assembly is unlawful and void being contrary to Article 106 (6) the Constitution;
  • Whether the motion of no-confidence upon a division vote of 33:32 Members of the National Assembly was validly passed as the requisite  majority of all the elected members of the National Assembly pursuant to article 106 (6);
  • Whether the requisite majority of all the elected members of the National Assembly ought properly to be 34 votes;
  • Whether the President and all Ministers of the Government can remain in Office as a majority vote was not duly carried in accordance with Article 106 (6) of the Constitution;
  • Whether the Court can make an order setting aside or nullifying the Speaker’s Ruling that the motion was carried;
  • Whether the court can make an order staying the enforcement of Resolution 101 declared by the Clerk of the National Assembly to have been on the 21st of December, 2018;
  • Whether the court can grant a conservatory order, preserving the status quo ante of the President and all Ministers of the Government remaining in office until the hearing and determination of the questions sought herein.

 

  • This Affidavit was drawn on my instructions by Mr. Nigel Hawke, Solicitor General, Mrs. Deborah Kumar, Deputy Solicitor General and Mrs. Beverley Bishop- Cheddie, Assistant Solicitor General for and on behalf of the Hon. Attorney General, Mr. Basil Williams S.C., M.P of and whose address for service and place of business is at the Attorney General’s Chambers and Ministry of Legal Affairs, Lot 95 Carmichael Street, Georgetown Guyana.

 

…………………………………………

JENNIFER AYANA Mc CALMAN

 

Sworn to at Georgetown, Demerara,

This       day of January, 2019.

 

BEFORE ME

 

COMMISSIONER OF OATHS TO AFFIDAVITS

 

 

IN THE HIGH COURT OF THE SUPREME COURT OF JUDICATURE OF GUYANA

CIVIL JURISDICTION

Court File No: 2018-HC-DEM-CIV-FDA

 

ATTORNEY GENERAL OF GUYANA                                                                        Applicant

                                                                                                -and-                           

  1. BARTON SCOTLAND, Speaker of the National Assembly of Guyana
  2. BHARRAT JAGDEO, in his capacity as Leader of the Opposition.

Respondents

 

AFFIDAVIT OF JENNIFER AYANA Mc CALMAN

 

 

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