“I WILL FOLLOW THE LAW.” BUT WHAT IS THE LAW? ELECTIONS BY SEPTEMBER 18?


At her swearing in as Chair of Gecom on July 29, 2019, Justice Claudette Singh said that she will follow the law. But what is the law? Elections by September 18? The Supreme Court certainly thought so. In order to correct misreporting in connection with preliminary deliberations in the matter of Christopher Ram v Chief Election Officer and others, the Supreme Court of Judicature Protocols and Communications Unit issued a Press Release on Wednesday 24 July which said: “The High Court confirmed that the Chief Justice (ag) stated that the consequential orders of the Caribbean Court of Justice (CCJ) indicate that elections should be held by September 18, 2019, or such longer period as the National Assembly determines.”

This view accords with the judgments of the CCJ in the consolidated appeals on the no confidence motion in which the CCJ gave its judgment on June 18 and consequential orders on July 12. In its July 12 decision the CCJ said: “Given the passage of the no confidence motion on 21 December 2018 a general election should have been held in Guyana by 21 March unless a two thirds majority in the National Assembly had resolved to extend that period. The National Assembly is yet to extend that period. The filing of the court proceedings in January challenging the validity of the no confidence vote effectively placed matters on pause, but this court rendered its decision on 18 June 2019.” No deconstruction of this statement is necessary to conclude that the CCJ is saying that time, which was paused by the court actions, began to run once again on 18 June 2019.

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THE CHARADE MUST NOW END


The Caribbean Court of Justice (CCJ) has ruled that the Guyana National Assembly “properly passed” a no confidence motion (NCM) against the Government on December 21. Thereupon, the clear provisions of Article 106 became “engaged.” The Court explained that Article 106 is clear and it is the responsibility of the constitutional actors in Guyana, including GECOM, to honour them. The Court said that elections should have been held since March 21, 2018, but was under pause because of the court cases. “But this Court rendered its decision on 18 June, 2019. There is no appeal from that judgment.”

In very clear language, quoted above and below, the Court said that while it is not the responsibility of the Court to fix a date for elections, it must be held in accordance with Article 106 of the Constitution. The ruling stated: “It is not, for example, the role of the Court to establish a date by or on which elections must be held, or to lay down timelines or deadlines that, in principle, are the preserve of political actors guided by constitutional imperatives. The Court must assume that these bodies and personages will exercise their responsibilities with integrity and in keeping with the unambiguous provisions of the Constitution bearing in mind that the no confidence motion was validly passed as long ago as 21 December 2018.” The complaints by Opposition lawyers about the CCJ not ordering elections by a certain date is not well founded. The Court did just that, but not in so many words.

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ADJUSTING TO AN INCREASINGLY INDEPENDENT JUDICIAL CULTURE


Grumbles of dissatisfaction were heard from the PPP/C Government when the Caribbean Court of Justice (CCJ) ruled against the Government and in favour of Trinidad Cement Limited (TCL) in 2009. TCL had taken the Guyana Government to the CCJ for violating the Treaty of Chaguaramas by not seeking COTED’s permission prior to importing cement from outside the Region. The Court found in favour of TCL but the Government of Guyana got off by the skin of its teeth on the claim by TCL of US$250 million damages. The PPP/C Government was held liable for several other violations of the Treaty. In the case of the Surinam company, Rudisa, which challenged at the CCJ the imposition of an ‘environmental’ tax on plastic bottles, the CCJ ordered the Guyana Government in 2014 to pay Rudisa US$6 million in damages. In 2017 in a similar case filed during the PPP’s term of office the CCJ ordered the Guyana Government to pay S. M. Jaleel & Co. Ltd., a Trinidad company, the ‘environmental’ tax unlawfully collected being US$11 million with interest. A future PPP/C Government will hopefully understand in future that there are consequences if it blithely ignores laws and treaties. It would have to adjust to an increasingly independent judicial culture. But emerging from an authoritarian political and judicial culture, this was not supposed to happen, even in strictly commercial matters which had no political implications.

Many PPP leaders and supporters were grossly disappointed when the CCJ overruled the decision in the Attorney General v Richardson case in which the Court of Appeal had decided that the constitutional provision limiting a president to two terms was unconstitutional. The CCJ decided that the provision did not violate the constitution. The effect of the decision was that the former President Jagdeo could not be nominated for a third term as president. The CCJ demonstrated that it was prepared to cut through the dense thicket of esoteric, interpretative, dicta and adopt a purposive determination to reflect the intent of the constitution.

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ADJUSTING TO AN INCREASINGLY INDEPENDENT JUDICIAL CULTURE


Grumbles of dissatisfaction were heard from the PPP/C Government when the Caribbean Court of Justice (CCJ) ruled against the Government and in favour of Trinidad Cement Limited (TCL) in 2009. TCL had taken the Guyana Government to the CCJ for violating the Treaty of Chaguaramas by not seeking COTED’s permission prior to importing cement from outside the Region. The Court found in favour of TCL but the Government of Guyana got off by the skin of its teeth on the claim by TCL of US$250 million damages. The PPP/C Government was held liable for several other violations of the Treaty. In the case of the Surinam company, Rudisa, which challenged at the CCJ the imposition of an ‘environmental’ tax on plastic bottles, the CCJ ordered the Guyana Government in 2014 to pay Rudisa US$6 million in damages. In 2017 in a similar case filed during the PPP’s term of office the CCJ ordered the Guyana Government to pay S. M. Jaleel & Co. Ltd., a Trinidad company, the ‘environmental’ tax unlawfully collected being US$11 million with interest. A future PPP/C Government will hopefully understand in future that there are consequences if it blithely ignores laws and treaties. It would have to adjust to an increasingly independent judicial culture. But emerging from an authoritarian political and judicial culture, this was not supposed to happen, even in strictly commercial matters which had no political implications.

Many PPP leaders and supporters were grossly disappointed when the CCJ overruled the decision in the Attorney General v Richardson case in which the Court of Appeal had decided that the constitutional provision limiting a president to two terms was unconstitutional. The CCJ decided that the provision did not violate the constitution. The effect of the decision was that the former President Jagdeo could not be nominated for a third term as president. The CCJ demonstrated that it was prepared to cut through the dense thicket of esoteric, interpretative, dicta and adopt a purposive determination to reflect the intent of the constitution.

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THE CCJ’S CLEAR PREFERENCE IS FOR A POLITICAL RESOLUTION


At the last two hearings of the cases before the CCJ, the clear preference was expressed by the Court for a political resolution of the NCM (no confidence motion) case. The Court, like everyone else, is fully cognizant of the political implications of any consequential order, especially having regard to the disputes over the voters’ list. At the last sitting of the Court, the President, Justice Adrian Saunders, expressed exasperation that the parties did not even meet, much less have discussions on the way forward. The Court is obviously anxious that what appears to be an explosively political matter should have a political solution which would satisfy all parties, rather than orders by the Court which may satisfy no one or only one. At the time of writing the President and Leader of the Opposition have not met.

The legal challenges by APNU+AFC initially appeared to be only a play for time. It was successful because the Government has obtained several additional months of life. More time is expected but even more is being demanded. A new voters’ list by house to house registration is demanded on the basis of vastly exaggerated and unproved claims about alleged defects in the list. These claims are that the list is bloated by 200,000 names and 18-year olds are not registered. This is the same list that was used for the recent local government (LGE) elections and there were no complaints. 18-year olds were extracted from the national register which registers persons from the age of 14 for the list used for the LGE. The same will apply for the voters list for new elections. Claims and Objections (C&O) will take care of any omissions. The latest play for time is that the list will not be ready until December 25. Both the 1990 and 1997 house to house registration took approximately eighteen months. On the evidence of the past, therefore, once house to house registration starts, there will be no elections until the end of 2020, if then.

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