BASSETERRE, St. Kitts – ARGUMENTS were heard yesterday (Dec. 16) at the Basseterre High Court on whether or not the Court has jurisdiction to move the hand of Parliament in having the Motion of No Confidence (MoNC) debated as soon as possible and as a matter of urgency.
Arguments on the matter were presented before His Lordship Darshan Ramdhani by Dr. Henry Browne QC and Crown Counsel Simone Bullen-Thompson for the respondents (Speaker of the House, Attorney General, etc.) and Douglas Mendes SC for the claimants (the Opposition).
In his submission, Dr. Browne sought to convince the Court that it is not empowered with the authority to interfere with the management and function of the Parliament.
The Opposition, which filed the MoNC on December 11, 2012, contended that by virtue of the fact it has not yet been debated, their implied Constitutional rights are being contravened.
The Opposition had therefore called upon the Court to grant relief in making specific declarations that the MoNC should be heard as a matter of urgency.
Dr. Browne argued that the Opposition could not lay claim to these “implied constitutional rights” because they simply do not exist. He said unless the structure of the Constitution permits, a right could not be implied.
The QC also argued that even if the judge were to find there is indeed an implied right, he could go no further because, should he venture to find a means of vindication of those rights, he would be crossing over into another arm of government, thus violating the principle of the separation of powers.
“The Court cannot determine the urgency with which the MoNC should be heard, as it doesn’t have the benefit of knowledge of the exigencies of government,” Dr. Browne declared, adding that the Court must be wary of trenching upon the Parliament, especially since Section 44(1) vests it with the right to regulate its own procedures. Therefore, the Court has no jurisdiction and the Opposition’s claim should be struck out.
Representing the Attorney General, Crown Counsel Bullen-Thompson argued that under the principle of the separation of powers the Parliament is allowed to regulate its own affairs, and the only way the Court could and should intervene is if the Parliament acts in contravention of the Constitution or of a Constitutional right.
She forwarded that since the Opposition’s supposed implied right does not actually exist, the Court therefore does not have jurisdiction and should not intervene.
Bullen-Thompson said the claimants had failed to prove that the Constitution gives an implied right, but conceded that if the Court finds there is an implied right the substantive matter should be heard.
In supporting the Opposition’s claim that the Court does possess jurisdiction and that there is an implied Constitutional right which is being infringed, Mendes suggested that even though the framers of the Constitution did not say that the Executive should not exercise judicial powers, it is implied.
And similarly, by virtue of the fact that Section 52(6) spells out what actions should be taken if a Motion of No Confidence is successful, the Section envisages that the MoNC would be placed on the Order Paper, moved and debated.
That implied right, he contended, is being infringed.
Mendes proposed that it would not be enough for the Court to find that there is an implied right and that the MoNC should be tabled.
He questioned what would happen if after those declarations were made the Speaker of the House still refuses to place the MoNC on the Order Paper.
Mendes declared that the only way to deal with this violation is for the Court to intervene and that under Section 96 of the Constitution it has a Constitutional duty to grant relief even if it is of an invasive nature.
He said the sub-judice argument which the Speaker had forwarded is merely a “camouflage” for not placing the MoNC on the Order Paper and that the Court does have jurisdiction to force the hand of the Speaker into listing it for debate.
Rebutting Mendes’ implied rights argument, Dr. Browne suggested that a distinction must be made between an implied right and a provision of the Constitution.
He said one could not imply that a provision of the Constitution has been violated, therefore Section 96 could not come into play, stressing that it is “constitutional heresy” for the Court to rule on an implied right of Constitutional violation.
Justice Ramdhani – although not giving any specific timeline – promised that his decision in the matter would be delivered as soon as possible.
