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.
The Speaker of the National Assembly, Dr. Barton Scotland, having declined to reverse his declaration on December 21, 2018, that the no confidence motion against the Government had been carried on a vote of 33-32 in favour, has shifted the arena of contest to the Court.
The constitutional provisions which have been automatically triggered by the passage of the no confidence motion, by now well-known, state: “106(6) The Cabinet including the President shall resign if the Government is defeated by a vote of a majority of all the elected members of the National Assembly on a vote of confidence. (7) Notwithstanding its defeat, the Government shall remain in office and shall hold an election within three months, or such longer period as the National Assembly shall by resolution supported by not less than two-thirds of the votes of all the elected members of the National Assembly determine, and shall resign after the President takes the oath of office following the election.”
Both the President and Prime Minister accepted the outcome of the confidence vote. The President said that the Government will abide by it and “facilitate the smooth functioning of the general and regional elections…”. The Government has now changed his mind, will question the Speaker’s ruling, has reneged on his commitment that “the relevant constitutional provisions will kick in” and has grabbed a flimsy lifeline thrown to the Government by Mr. Nigel Hughes. Ridiculously puerile excuses by the Prime Minister, reflecting a desperate attempt of the Government to stay unlawfully in office in violation of all norms of democratic, constitutional and lawful conduct, were relied on.
The Speaker will now be asked to act as a policeman and investigate whether Mr. Charrandass Persaud was bribed, and also whether the majority should have been 34 and not 33, having repeatedly ruled since 2015, and having been accepted by the Government since 2011, that a majority is 33. These are ominous developments, which will bring ridicule to Guyana and to the APNU+AFC Government, derail the democratic process and have grave implications for Guyana’s future and for Parliamentary democracy.
When I read the headlines in SN yesterday morning, ‘AFC says constitutional reform still a priority,’ I could not feel a sense of elation. Instead, I sunk into a dejected mood of déjà vu. The headline itself subtly editorialized that it was not impressed with the promise. It added to the main banner ‘though no progress over three years.’ I believe that the AFC earnestly wishes to have constitutional reform but is faced with implacable resistance in the form of inactivity by APNU.
But more importantly, constitutional reform for the AFC, as well as for APNU, whenever it desultorily renews its fading undertaking, no longer seems to mean what it promised in the coalition’s manifesto. By omitting to refer to the manifesto promises, it appears that constitutional reform is being treated as a box to tick before the next elections comes along. It can then boast of fulfilling its election promise.