During last week, the Stabroek News published an article (Akola Thompson “Towards a post-racial future” and a letter (Ryhaan Shaw “Little hope of a post-racial future for Guyana any time soon”) on the future of race in Guyana. Race is a difficult issue to discuss because of its complexity and intractability. But a peaceful and productive ethnic future for Guyana depends on how, and how urgently, we deal with the issue of race. Unless we do so soon, the sore of race in its several manifestations will continue to fester, producing infected material, draining the energy of Guyana into bad governance, marginalization and discrimination, crime and corruption.
Ethnic hatred, born of prejudices developed over centuries, having their bases usually, but not always, in economic factors, is difficult to eradicate, even as conditions of discrimination are alleviated by laws and social measures, as experience in the US has shown. Guyana’s situation may not be unique. Trinidad developed in a similar manner. Both countries have two large ethnic minorities that make up the large majority of the population. But our politics developed differently. The Peoples’ National Movement traditionally had a significant enough Indo-Trinidadian vote that kept it in office for decades during the era of Eric Williams. After that coalition fractured, Trinidad maintained a sizeable floating vote, comprising all sections of the populations, which resulted in periodic alternation between the parties, despite maintaining fairly rigid ethnic voting patterns and sensitivities.
The Guyana Government’s lawful tenure in office came to an end on September 18. The no confidence motion was passed pursuant to article 106 of the Constitution on December 21 and should have resulted in elections by March 21. However, court proceedings placed a ‘pause’ on events and time began to run again on June 18 when the CCJ ruled against the Government. The CCJ gave the clear indication, but did not rule, that elections are due by September 18. Nothing prevented the CCJ from formally ruling, which the lawyers representing the appellants, who had brought the case against the Government, had sought. The result is that the Government has quite duplicitously argued that the CCJ did not rule, the Constitution has not been violated and the Government has de jure and de facto power. From whence this lawful power has been derived has not been explained in any sensible or rational way.
I am deeply conscious of, and have written extensively on, the ethno-political fears that influence Guyana’s politics. I have, and so have many others, repeatedly urged our main political parties to discuss the proposals which they themselves have placed on the political agenda and come to an agreement on how political responsibility can be shared between them equally so that neither can feel at risk of being dominated by the other. The reason the APNU+AFC’s promises of constitutional reform failed to materialize is that it realized that its own proposals would put it in an inferior power position to the PPP. In order to arrive at a political solution, the parties have to accept equality of representation. And it is the PPP that would have to make that concession or sacrifice because of its superior numbers. APNU+AFC has the historical injustice of slavery as an argument to counter that of superior numbers.
In English law, fair comment on a matter of public interest is allowed. Generally, it guarantees the freedom of the press to make statements on matters of public interest, as long as the statements are not made with ill-will, spite, or with intent to harm the subject of the comment. For decades, English courts have placed a higher burden on public figures to prove defamation, which includes both libel and slander. This is based on the view that if a person chooses public activity, that person must expect a higher degree of public scrutiny. For example, it is hardly likely that an English court will countenance a defamatory intent against a public figure where an allegation of conflict of interest is made on facts which are essentially true but could be capable of a more generous interpretation.
Fair comment is an ancient common law (judge made law) defence. But it was replaced in the Unites States in 1964 by a defence created in the case of New York Times v Sullivan in which the US Supreme Court decided that actual malice has to be proved to establish defamation. Since it is very difficult to prove actual malice in a journalist or a politician in the cut and thrust of journalism or politics, public life in the US has been largely liberated from the fear of defamation. While the defence of fair comment remained in the U.K. it was increasingly found to be too restrictive for adequate scrutiny of public officials. The courts of the UK have never adopted New York Times v Sullivan but began to test a more liberal approach to criticisms of public officials.
The statement issued by the Bar Council of the Guyana Bar Association during last week quoted a dictum of the Chief Justice (ag) in the case of Attorney General of Guyana v Dr. Barton Scotland, Mr. Bharrat Jagdeo and Mr. Joseph Harmonas follows: “I hold that the NCM [no confidence motion] was carried as the requisite majority was obtained by a vote of 33:32. The President and the Ministers cannot therefore remain in Government beyond the three months within which elections are required to be held in accordance with art 106(7), unless that time is enlarged by the National Assembly in accordance with the requirements of the said art 106(7).”
President Granger responded at a political rally at Vreed-en-Hoop, that he remains President until a new president is sworn in. The President made no reference to elections. Minister Harmon clarified on Friday afternoon that a date will be fixed for elections when the court cases are completed. He gave no indication that the March 21 deadline for the Government to remain in office will be adhered to. It therefore appears that the Government intends to remain in office, even after March 21, if the cases are not over, which is very likely. After March 21, the Government will be illegal. It will not be entitled to hold office, not entitled to make decisions, not entitled to enter contracts, not entitled to convene the National Assembly, not entitled to pass laws and not entitled to fix a date for elections.
Divided societies like Guyana suffer from a phenomenon whereby historic events which, when they occurred, gave rise to allegations of ethnic bias, never seem to go away. The West Indies Federation, which lasted from 1958 to 1962, is one such. It is an historic event which is hardly relevant to contemporary Guyana today. Yet the debate on Jagan’a attitude to the Federation rages, as if the event occurred yesterday, and not more than 50 years ago. It is contextualized to the current ethnic controversies, one of which is to seek to continually paint Jagan as a racist, or at least to allege that he was motivated by ethnic considerations. His role in the establishment of the University of Guyana has become another. But that is for another time.
An editorial in the Stabroek News of December 19, 1986, on ‘Regional Integration’ stated that ‘…others, notably Eusi Kwayana (then Sydney King) attributed Jagan’s opposition [to the Federation] to his unwillingness to be swamped in a predominantly African grouping. C.L.R. James is also reported to have made a similar assertion. In response to the Stabroek News editorial, Jagan replied as follows: