THE APNU+AFC HAS TRIUMPHED


APNU+AFC was shell-shocked after inviting the PPP/C Opposition to “bring it on,” that is, the no confidence motion. ‘Bassady’ by the head blow of the Charrandass Persaud’s supportive vote of the NCM, they unsteadily promised to comply with the Constitution and hold elections in three months. Then reality stepped in. Somebody discovered the fiction that the human body of a parliamentarian could not be divided in half and that the majority of 65 was really 34. Most Guyanese would have disagreed with the notion that a parliamentarian would not be willing to have his/her body divided in half. We are all aware of the patriotic displays by parliamentarians on both sides of the House during Sittings. Quite often the Speaker has to intervene in exasperation to quell raucous nationalistic fervor. As it turned out, the sacrifice was unnecessary as history repeated itself. From Mustique in 1985, to Herdmanston in 1998, to the CCJ in 2019, Caricom and its agencies have consistently rescued the PNC/PNCR/APNU, or enabled it to rescue itself. And the international community’s fit of conscience about Guyana in the early 1990s has clearly not survived.

There is no mystery about article 106 of the Constitution. In 1999-2000 the PPP/C appeared to be firmly ensconced in office. The traffic of MPs across the floor had historically been only one way, from the PPP to the PNC. With this in mind, supporters of the then Opposition PNCR and their allies felt that if they were able to encourage that traffic to continue, and they were able to acquire the support of a majority of the members of the National Assembly, the PPP/C Government might not have been willing to observe the convention and resign on a successful no confidence motion or decisive defeat. Hence article 106. The provision requiring the Cabinet to resign was obviously inserted to enforce the caretaker status after a no confidence vote. PPP/C Governments had refused to recognize the existence of such a convention, hence its enshrinement.

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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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TO MEET OR NOT TO MEET


Guyanese can be excused for being baffled at the latest developments in the current political saga gripping the nation.On February 25 President Granger wrote to the Chairman of the Elections Commission, Justice James Patterson, urging the Commission to commence preparations for the conduct of the general and regional elections. In the letter the President noted that the Commission had said that it did not have the capability to deliver credible elections within three months of December 21 and that additional funds were needed. The President committed the Government to ensure that the Commission is provided with financial resources and has sufficient time to conduct credible elections. The word ‘credible’ is used twice.

Published at the same time was the President’s letter of the same date to Opposition Leader Bharrat Jagdeo. President Granger expressed the wish to consult with Mr. Jagdeo on the constitutional role of the National Assembly in the present situation and the Commission’s readiness and requirement for funding to conduct the elections. The letter ended with the President informing Mr. Jagdeo that he had written to the Chairman of the Commission urging him to initiate arrangements for the conduct of the elections.

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