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.
As is now well known, the Constitution makes no distinction between a ‘simple’ and an ‘absolute’ majority. It refers only to ‘majority.’ But the Court of Appeal ruled that such a distinction exists and under Article 106(6) an absolute majority of 34 out of 65 is required for the passage of a no confidence motion. It defined an absolute majority as half plus one. For a 65-member National Assembly, half is 32½. Since there is no half person, then 32½ has to be rounded up to 33. Then adding one will make an absolute majority of 34.
The Constitution recognizes only a ‘majority’ and a ‘vote of not less than two-third ,’ or the ‘support of not less than two-thirds.’ It does not use the word ‘majority’ when describing the two-third vote, as set out below. Article 168(1) provides that: “Save as otherwise provided by this Constitution, all questions proposed for decision in the National Assembly shall be determined by a majority of the votes of the members present and voting.”
President Granger last Friday said that “the Government is conducting its affairs in accordance with the Constitution and with respect for the rule of law.” He sought to convince the nation that it was the Speaker of the National Assembly who directed the Government’s approach to the court and that the cooperation of the Opposition is necessary for credible elections. He created a constitutional mandate for the Elections Commission in fixing a date for elections. He reiterated that the National Assembly is competent to extend the time for holding elections. The President said that there is no cause for “alarm or anxiety.” The Office of the Leader of the Opposition issued a statement contradicting the President’s assertions point by point. The President places the burden for resolving the crisis on everyone but himself and the Government.
Notwithstanding the President’s use of selected articles of the Constitution to justify his untenable views as to the current state of affairs, created by the Government’s failure to fix a date for elections before March 21, the Government becomes illegal on March 22. One of two things ought to have happened by March 21, namely, elections ought to have been held, or the life of the National Assembly extended. Neither occurred, despite the decision of the Chief Justice (ag) that elections have to be held in three months after December 21, the date of passage of the no confidence motion. The Government insists that it has a right to be heard in Court and in doing so, insists that it has a right to violate the Constitution while awaiting the Court’s verdict. President Granger blithely ignores the nation’s right to elections and relies on the invented veto which he has accorded to the Elections Commission.
The PNCR appears to have had no difficulty in accepting the Caribbean Court of Justice (CCJ) in its appellate jurisdiction. The CCJ was established in 2005. As a court of original jurisdiction its function is to interpret and apply the Revised Treaty of Chaguaramas which established the Carribean Community. Hoping that it would replace the Judicial Committee of the Privy Council (JCPC) as the final court for most of the region, the Heads of Government agreed to clothe the CCJ with an appellate jurisdiction to determine appeals in civil and criminal matters for member states which cease to allow appeals to the JCPC and accede to the jurisdiction of the CCJ. In 1999-2000 the PNCR agreed, without having to be persuaded, to a recommendation by the Constitutional Reform Commission that the Constitution be amended to provide for Guyana’s accession to the CCJ when it was established.
In a statement published last Friday, Vice President Carl Greenidge reaffirmed the Government’s commitment to the CCJ. Notwithstanding adverse decisions and that only four Caricom countries so far have joined the Court’s appellate jurisdiction, the Government was satisfied with its competence and quality. The CCJ was in the news recently when it held that a law which provided that cross dressing for an “improper purpose” was unconstitutional. Also, the electorates of Grenada and Antigua, like St. Vincent a while back, rejected the CCJ as their final court in place of the JCPC. The steadfast support of the CCJ by the Government of Guyana is welcome to all lawyers and should be to all politicians.
Ivor Archie has been the Chief Justice of Trinidad and Tobago (TT) for ten years and is a prominent judicial personality in the Caribbean. On 12 November 2017 the Sunday Express alleged that the Chief Justice had tried to influence Supreme Court Justices to change their state-provided personal security in favor of a private company with which his close friend, Dillian Johnson, a convicted felon, was associated. On 19 November the Sunday Express published another article alleging that Dillion Johnson was among 12 persons recommended for Housing Development Corporation units by the Chief Justice. On 4 December the Express reported that the Chief Justice, 57, was joined by Dillion Johnson, 36, while on official business abroad (Guyana). Photographs were published apparently showing Johnson lying in a bed and the Chief Justice sitting at the edge, backing the camera, on the telephone and another showing Johnson with a lanyard around his neck holding an identification card allegedly with the printed name of the Chief Justice. The Chief Justice claimed that the photographs were photoshopped.
On 29 November the Law Association of Trinidad and Tobago (LATT) appointed a committee to “ascertain/substantiate” the facts upon which the allegations made against the Chief Justice were alleged to be based. On 30 November the President of the LATT met with the Chief Justice and informed him that having regard to the seriousness of the allegations and his failure to respond, the LATT has decided to investigate the allegations to determine whether they are true or not. The LATT offered the Chief Justice the opportunity to respond to the allegations even though it recognized that it had no power to compel him to do so. It, however, mentioned that it intended to refer its report to the Prime Minister which falls within its statutory mandate.