When Justice Claudette Singh was sworn in, she reminded us that when she was on the bench she was dubbed “The Iron Lady.” The newly appointed Chair of Gecom obviously intended to convey to the public that she was a decisive person, who tolerated neither nonsense nor delaying tactics. It was a clear indication that she intended to sweep away the cobwebs of obfuscation, chop a path through the forest of gridlock using “the law and nothing else”- her words. Now is the time. Gecom, over which Justice Singh has a decisive, one vote authority, must not be allowed to dance to the tune of delay, which everything that has happened since December 21 is about. There is probably no democratic country in the world in which a no confidence vote was passed against the Government that has failed to hold elections after eight months. And our argument in Guyana is on the list of electors.
In countries with a Westminster constitution as a significant characteristic, as in Guyana, where the executive sits in the Parliament, there is a long-standing convention that when a no confidence motion is passed against the Government, elections are promptly held. In 2001 the Parliament accepted the recommendation of the Constitution Reform Commission to include article 106 in the Constitution to provide for elections in three months if a no confidence motion is passed. The Parliament must have taken into consideration that if there is no constitutional provision and a no confidence motion is passed, the Government might ignore it. The Parliament also provided for the resignation of the Cabinet. The obvious reason was to institutionalise the caretaker status of the Government by confining the Government to largely administrative functions until the elections are held. In the absence of the Cabinet no major decisions could be taken.
The Chief Justice ruled last week in the case brought by Christopher Ram in connection with the house to house registration that it is unlawful to remove names from the registration list during the current exercise merely because they are not present at the addresses or had migrated. The stated objective of the house to house registration was to remove the names from what was described as a list ‘bloated’ by 200,000 names. It was not quite clear how the ‘bloating’ occurred, or how the figure of 200,000 was conjured up, but it was assumed that these were persons who had died or migrated.
The Attorney General described the decision of the Chief Justice as a “statement” regarding the removal of persons from the National Register of Registrants and as more like a “suggestion” to the Guyana Elections Commission. It is not an “order,” he said, and the Chief Justice could not have intended to direct GECOM. This must be a hint to GECOM that it can ignore the Chief Justice’s decision and continue the house to house registration.
If elections are not held on or before September 18, as appears likely, the Government will fall over a constitutional precipice which is fast approaching. According to Vice President Khemraj Ramjattan, Minister of Public security, speaking on a podcast on Wednesday last, if the Gecom Chair advises the President that free and fair elections cannot be held without a new electoral list compiled by house to house registration, the President will have no choice but to fix a date for elections when it is estimated that registration is expected to be concluded. That date is December 25, according to Gecom’s lawyer, advising the CCJ.
In relation to whether elections will held on or before the due date of September 18, VP Ramjattan said on Wednesday last, “I doubt it, I seriously doubt it.” While VP Ramjattan stressed that it was his opinion, such an opinion coming from a Vice President of Guyana, even before a Chair of Gecom is appointed and forms an opinion on the list, carries great weight. When asked about the status of the Government after September 18, he said that the doctrine of necessity will apply so that the Government would be lawfully in power and its decisions would be lawful. Accordingly, any Government can deliberately refuse or fail to hold elections, claim the right to do so under the doctrine of necessity, and lawfully stay in office! Such twisted logic has sadly become part of the degenerated discourse on our constitution and its interpretation.
The Caribbean Court of Justice (CCJ) has already given a clear indication of its liberal and purposive attitude to constitutional interpretation in the Richardson case last year in which the constitutionality of the two-term presidential limit was challenged. Despite a majority Court of Appeal decision declaring the amendment to the Constitution limiting a President to two terms, and an apparently unassailable argument before the CCJ, supporting the Court of Appeal’s decision, the CCJ would have none of it. In a majority decision, it upheld the amendment thereby sparing Guyanese the potential of a life President, which the amendment was designed to prevent.
In the hearings last week, the two cases heard were the challenges to the appointment of the Chairman of the Elections Commission and to the validity of the no confidence motion passed in the National Assembly on December 21 last which required the Government to call elections by March 21 but which it had steadfastly refused to do on the flimsy argument that it was awaiting rulings from the court.
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.