Article 106 (6) and (7) of the Constitution of Guyana, which gives instructions as to the course of actions to be taken following the defeat of a government by a vote of No-Confidence, has been regarded as a “Legal Fiction” by the Minister of Public Security, and Leader of the Alliance for Change (AFC), Khemraj Ramjattan.
The lawyer made his interpretation known when he went head-to-head in a political debate with Peoples’ Progressive Party/Civic (PPP/C)’s Member of Parliament (MP), Juan Edghill on a radio programme called the “Hot Seat”, hosted by Stan Gouveia.
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.”
106 (7) goes on to say: “Notwithstanding its defeat, the Government shall remain in office and shall hold an election within 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.”
Edghill, during the talk, said that in keeping with 106 (6), the President and Cabinet should resign after it is defeated by a majority of all elected members. This act of resigning will show that the David Granger-led administration has publicly acknowledged that they intend to comply with the ruling of the Caribbean Court of Justice (CCJ)’s ruling, and the constitution.
Edghill said that after the government’s defeat, the caretaker status was imposed; which means that the Cabinet is disbanded; it means that there can be no approval of new legislation, no amendments to new legislation; there can be no treaties signed; there can be no agreements made; nor no major contracts awarded.
The only role of that caretaker government, he contends, is to facilitate the holding of elections.
Ramjattan told Edghill that even if the Cabinet resigns, they will still be acting as ministers. He said that while he can submit his resignation, he enquired from Edghill, to whom should president submit his resignation.
The AFC leader said that the beginning of article 106 (7), “notwithstanding its defeat”, can be interpreted to mean that even if a formal resignation is made – which he claims there is nothing in the constitution that indicates such – the government will still remain in office until elections are held.
“So, it is kind of a legal fiction that is spoken about in that article, and that is what it is because right after that [formal resignation], you are still a minister performing the function of government and minister. So that is the problem with the opposition, they seem not to understand that,” Ramjattan said.
Legal Fiction – “A rule assuming as true, something that is clearly false. A fiction is often used to get around the provisions of constitutions and legal codes that legislators are hesitant to change or to encumber with specific limitations. Thus, when a legislature has no legal power to sit beyond a certain midnight but has five hours more of work still to do, it is easier to turn back the official clock from time to time than it is to change the law or constitution.” (Editors of the Encyclopedia Britannica).
During the show, both Edghill and Ramjattan exchanged heated words. At one point, there was a loud exchange and Edghill blurted: “Resign!”
Ramjattan in his retort said: “we are not going to resign!”
“You not going to obey the constitution?” Edghill asked.
“We are not going to resign,” Ramjattan repeated.
