GECOM says it Could Not Happen Before November 2019
By Dr Tara Singh
While speculation is rife on the probable date for national and regional elections in Guyana, it seems that the country will go to the polls sometime between August and November 2019.
The date will depend on the Caribbean Court of Justice’s (CCJ) ruling on the NCM. Guyanese and CARICOM citizens have been paying rapt attention to the hearing of appeals on a set of consolidated cases at the Caribbean Court of Justice. These cases relate to the unilateral appointment of the GECOM Chair by President David Granger; the passage of a No Confidence Motion (NCM) on December 21, 2018 in the Guyana Parliament; and related constitutional matters. During the 3-day hearing (May 8-10, 2019) the Justices asked some penetrating questions as well as offered some pungent comments, such as Guyana is not a “monarchy but a republic;” they chided the “slothfulness of GECOM;” wondered “why lawyers are still stuck in the 1980 constitution;” and couldn’t reconcile the position that it would take 33 votes to form a government but 34 votes to make the government fall.
These and other observations have rattled, in particular, the government lawyers who still believed that they were before the Guyana Court of Appeal. The apex court, CCJ, gave them a good lecture on judicial restraint and repudiated their inclination towards judicial activism. Regarding the latter, the Court cannot make laws or import concepts into a constitution as well as to arrogate onto itself the constitution founders’ “intent.” The court’s major function is to interpret, clarify and direct measures to enforce the constitution.
While the government lawyers thought that they had some relief because the CCJ President Adrian Saunders wondered about the formula that was used to arrive at an absolute majority, he (Justice Saunders) also said elsewhere, the “case cited to support 34-32 is not applicable.” This has been an issue that we have been arguing all along that if 34 votes are required to oust a government, then 34 votes are also required to form a government. And 34 votes are also required to pass important bills like the budget.
“Sharing his views, Justice Jacob Wit questioned Senior Counsel Mendes on whether it was government’s view that it can only be sent packing with 34 votes though it rules with 33 seats. While the senior counsel said that this seems to be the position of the government has taken, Justice David Hayton notes that if that was the case then the ruling of the Court of Appeal ought to be unanimous since two would not be the greater part of the three panel judges.”
We note that the NCM was duly passed by the Parliament and certified by the Speaker, who refused to revisit the issue. It was clear then to the opposition that the NCM was “legitimate.” One Justice even lamented why this case had to go to the CCJ for litigation. Asking the Court to intervene and over-turn the decision of Parliament is an attempt to undermine the separation of powers principle that is the bedrock of democracy. We are not aware of any NCM that was duly passed in any Commonwealth country that was ever challenged in a court of law. The No Confidence Vote (NCV) reminds us of the NCV that was brought by the UK Tory Party Leader Margaret Thatcher against the Labor government of Prime Minister James Callaghan on March 28, 1979. Mrs Thatcher and her Tory party prevailed with just one vote. The Opposition got 311 votes while the government got 310. What’s important is that the government honored the NCV.
Another pertinent point raised by one of the Judges was why didn’t anyone object either during or immediately after the passage of the NCM? The Prime Minister called a press conference on the same night (12/21/2018) and accepted that the government was defeated. The following day the President agreed with his Prime Minister. A day afterwards, a voodoo math formula crept into the process. The husband of a sitting Minister in the government threw a life support to the government by proposing that 34 is the majority of the 65-seat Parliament and not 33. He cited an obscure case in Vanuatu, which has an even number of Parliamentary seats, to support his argument.
Nigel Hughes calculation went like this: to arrive at a majority, you divide 65 by 2 which results in 32.5 but since you can’t have a 1/2 (0.5) member you round it off to 33 (this becomes the adjusted ½), and since a majority is anything more than ½ (or 50%), then you add 1 which makes it 34. Here is his formula X=N/2+1. By substitution we get Majority=65/2+1=33.5 (which is rounded to 34).
Hughes did not consider the applicable formula for odd number of seats which works out at 33: X=(N±1)/2. By substitution, we get Majority=(65+1)/2=33
For decades, Guyana has been using the figure of 33 as the Parliamentary majority. When in 2014 the government was in the opposition, they boasted that that they had 33 votes to topple the PPP Government. And the PPP recoiled and prorogued Parliament fearing a defeat at the NCM. Even important bills like Budget were passed with 33 votes.
If a formula is going to be applied to determine what constitutes a majority, then the correct formula must be utilized for this purpose. We caution though that there is no such formula in the constitution.
In the United States of America, the House of Representatives has 435 members of which a majority is 218 (based on the accepted formula X=(N±1)/2. The US constitution defines a supermajority of the senate as 2/3 of 100 which is 67. The math is simple: 2/3 of 100 = 66.67. This figure is rounded to 67 which is the super majority. There was no need to add 1 according to Hughes. The figure was just rounded. Anything above 50% is a majority (whether, it’s a fraction or a whole number). Increasingly, it is becoming clearer that the government is using this mathematical perversion and other devices to extend their stay in power.
Former Trinidad & Tobago Prime Minister Basdeo Panday puts the majority question in very simple language. He stated that when there are two sides in Parliament, the side that gets at least one more vote constitutes a majority. He reminded his viewers that the PNM and the UNC parties were tied at 18:18 seats in 2001. It was the President who broke that tie. To avoid that from recurring, the Trinidad & Tobago constitution was amended to have 41 members (an odd number) where a clear majority could be obtained. In Trinidad and Tobago, the majority is 21 (and not 22 according to Hughes Math).
The CARICOM countries shown in the table have one-seat Parliamentary majority.
Guyana government lawyers have been vigorously advancing the notion of “absolute majority.”
While there is no mention of absolute majority, as opposed to simple majority, in the constitution, the Chief Justice of Guyana provided a scholarly explanation which we put into simple language. A simple majority is when one side gets at least one more vote than the other side of those MPs present. If 41 MPs are in attendance, for example, then 21 votes become the simple majority. In the case of an absolute majority, in a 65-seat chamber, if one side gets 33 votes of all the 65 members present and voting, then 33 represents an absolute majority of all the 65 members that voted. In the case of a simple majority, all the MPs need not be present to pass a Bill once there is a quorum. While this academic exercise may be useful, Justice Winston Anderson cautions that nowhere in the constitution does the concept “absolute majority” appears. He states, “the debate on absolute majority has no merit.”
Another issue raised was that if a MP is on a list, he/she cannot vote against the position taken by the party list. When asked if there is anything in the constitution prohibiting a MP from voting against the list, the government lawyer said “no,” but that loyalty would demand that he vote with the list. This extreme position by the government means that MPs would literally become robots and cannot exercise a conscience vote. The government’s position on this matter is autocratic and it’s contrary to democratic norms and Parliamentary practices and precedents.
On a related matter on the controversial appointment of the GECOM Chair, the CCJ’s opinion seems to be that President David Granger was required to provide reasons for his rejection of nominees for position of GECOM Chair. The Justices also implied that this appointment should have been based on consensus. It will be interesting to see if the CCJ will direct the President to appoint one person from among the 3 lists submitted by Mr Jagdeo. The CCJ is likely to address election matters and issue some directions. We believe that the CCJ will uphold the NCM and instruct that elections be held no later than August 2019. GECOM legal Officer has recently stated that there is no need for a new voters’ list; the existing list just needs to be updated. Very interesting!
The views expressed in this article are those of the writer and do not necessarily represent the position or policy of the THE WEST INDIAN.