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Guyana’s CCJ Case & Implications for Commonwealth Caribbean Democracy.

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In this episode of Caribbean Commentary – the Government of Guyana’s case goes to the Caribbean Court of Justice (CCJ) for a ruling on what constitutes a majority in parliament, Professor Errol Miller considers possible implications for the Commonwealth Caribbean.

THE CCJ AND COMMONWEALTH CARIBBEAN DEMOCRACY

The CCJ has been asked to rule on an appeal from Guyana which will have far-reaching impact on other Governments and citizens of the Commonwealth Caribbean. It concerns the simple question. What amounts to a majority vote by parliamentarians of our jurisdictions? The facts are as follows:

  1. On December 21, 2018 the National Assembly of Guyana, consisting of 65 members, voted 33 to 32 in favor of a No Confidence Motion. The Speaker certified the results of the vote.
  2. A case was adjudicated in the Supreme Court in which the learned Chief Justice ruled that 33 votes in the National Assembly of 65 members constituted a majority in favor of the motion.
  3. The alternative proposition before the Chief Justice was that 34 votes constituted a majority. The mathematical foundation of that proposition was that the total number of 65 members of the National Assembly should be divided by two, then rounded to the next whole number, after which one should be added to the result. That is, 65 divided by 2 = 32.5 rounded to 33 + 1 = 34.
  4. An appeal, contesting the ruling of the Chief Justice, was lodged in the Court of Appeal of Guyana, where the case was heard by a Panel of three judges. Two judges upheld the appeal and one judge denied the appeal, that is, agreed with the decision of the Chief Justice.
  5. An appeal has been lodged with the Caribbean Court of Justice, for final decision.

The decision of the CCJ will not only apply to Guyana but to countries of the Commonwealth Caribbean that accepts the CCJ as the court of final authority or hope to do so. The implications for democracy in the Commonwealth Caribbean will be profound.

Implications for the Commonwealth Caribbean

Up to 2001 the Parliament of Trinidad and Tobago had 36 members. The General Elections of December 2001 resulted in a 18-18 tie. It took ten months for the deadlock, hiatus and paralysis in Parliament to be resolved in the General Elections of October 2002. Realizing all the dangers that had been adverted and counselled by paralysis experienced in governance by a Parliament with an even number of seats, the Government and people of Trinidad and Tobago acted to increase the number of seats in the Parliament to an odd number, 41. The General Elections in Trinidad and Tobago in November 2007 was contested on 41 seats in Parliament.

Taking note of the experience of Trinidad and Tobago, the Government and people of Jamaica acted and amended the Jamaican Constitution to increase the number of constituencies in which Jamaica was divided from 60 to 65, with an immediate increase to 63. The General Elections in Jamaica in December 2011 was contested on 63 seats.

In the Jamaican General Elections of February 2016, the Jamaica Labor Party won 32 seats and the People’s National Party, which was previously the government, won 31 seats. The Government changed peacefully and without any protest or contest on the majority of one seat. All votes in the House of Representatives of 32 versus 31 have been accepted and acted upon as valid and legitimate.

Therefore, at least Jamaica and Trinidad and Tobago should have more than a casual interest in the Guyana case currently before the CCJ and the ruling of that court.

Phantom members

The mathematical foundation of the proposition that 34 votes constitute a majority in the 65 seat National Assembly of Guyana represents new electoral mathematics. It requires the presence of two phantom members in the National Assembly. Thirty-three members were present and voted on December 21, 21018. For 34 votes to constitute a majority then the total number of votes in the 65 seat National Assembly would have been 67, two more than is constitutionally eligible to vote. A similar outcome requiring two phantom members would obtain if this Guyanese formula is applied in Trinidad and Tobago and Jamaica. Applied to Trinidad and Tobago, the calculation would be 41 divided by 2 = 20.5 rounded to 21 + 1 = 22 + 21 = 43 votes in the Parliament of 41 members.  Applied to Jamaica the calculation it would be 63 divided by 2 = 31.5 rounded to 32 + 1 = 33 + 32 = 65 votes in the Parliament of 63 members.

More votes cast than are constitutionally eligible to vote constitutes electoral malpractice in all jurisdictions in the Commonwealth Caribbean and probably world-wide. The common term is over voting.

High principle, common sense and wisdom

One can only hope that members of the learned profession representing both sides of this case before the CCJ will ensure that all legal procedures and technically are strictly observed in a timely manner and are argued at the highest levels of logic, facts and eloquence such that the matter to be decided by the Judges of the Court are with respect to law and merit. Perhaps the CCJ is a most fitting court to review what transpired in the Guyanese courts and Parliament. The CCJ’s current president, Justice Adrian Saunders, in a recent presentation at a Human Rights forum here in Jamaica described the CCJ’s deliberation as ‘seeing from near judging from far’. Hopefully this close-up knowledge and understanding of the Commonwealth Caribbean, coupled with its commitment to arms-length application of logic and the law, will exemplify high principle, common sense and the wisdom of proven practices in Commonwealth Caribbean democracies.

Professor Errol Miller

Former Chairman, Caribbean Association of Electoral Organizations

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