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.
The Chief Justice ruled that the no confidence motion was lawfully passed on December 21 in the National Assembly by a 33-32 vote, and that the vote of Charandass Persaud was lawful, notwithstanding that as a dual citizen he was unlawfully occupying his seat in the National Assembly. Consequent upon those findings, the Chief Justice ruled that the Cabinet automatically resigned on the passing of the no confidence motion. The Chief Justice granted neither a stay of execution nor a conservatory order which would have preserved the status quo ante. Yet the Government announced that the status quo remained and Government business will be conducted as usual.
This statement, disrespectful and defiant of the Chief Justice’s ruling, presumably means that the Cabinet will continue to meet and function and take decisions affecting the governance of Guyana, even though it is unlawful to do so. In effect, the Government’s functions must be limited to the implementation of existing decisions as no new ones can be made by the non-existent Cabinet. The statement also means that those Members of the National Assembly who hold dual citizenship will continue to occupy their seats even though the effect of the Chief Justice’s ruling in relation to CharrandassPersaud’s means that their membership is unlawful. Such bold, brazen and open defiance of lawful authority, of the Constitution and of the rule of law by a Government, have never been seen in Guyana after the Burnham era, or in the Commonwealth Caribbean, or in any democratic country for that matter.
By virtue of the now familiar Article 106(7) of the Constitution of Guyana, elections are due to be held within three months of the passage of a no confidence motion in the National Assembly on December 21, 2018, that is, by the end of March. The court has no power to alter the Constitution by extending the time. Only the National Assembly, by a two-third majority, can do so.
The first step after the passage of the no confidence motion ought to have been a directive from the President to the Chair of the Elections Commission to provide a timetable for the holding of elections before the end of March, 2019. This is what the Opposition Leader, Mr. Bharrat Jagdeo, ought to have insisted on at his meeting with President Granger on January 9. Instead the Opposition allowed itself to be ensnared in a charade of fruitless consultation with the Elections Commission. That it would have been fruitless was later signaled by a chorus that a new electoral list was neededand by a delay in the meeting. The most recent, flimsy, excuses are that time is needed for the training of elections day staff and the mobilization of supplies. These can be accomplished in weeks. Existing trained staff for local government elections only need to be upgraded and supplies can be acquired by emergency procurement.
It is with trepidation that I venture to write about an issue such as this, which invokes controversies from all sides. To deal with it realistically though, I have to reflect on another contentious aspect of our recent history, which continues to drive fear into the minds of a vast number of people. The results of the 1992 elections alone, ignoring all the other evidence, prove beyond any conceivable doubt that all prior elections in Guyana as an independent nation were rigged. The failure of the PNC to acknowledge that past, and its role in it, has left more than a lingering sense of suspicion in the minds of a large number of people. The suspicion is, that with the PNC once again in power, rigged elections are back on the agenda. Some PNC members, supporters and sympathisers don’t seem to understand this, or if they do, don’t care about it. Rigged elections in the past aggravated ethnic disharmony by creating the feeling in one section of the population that its vote was either being stolen or was worthless. Hence the controversy over employment practices at GECOM. I am not saying anything that is not widely known and accepted, although many would not wish to acknowledge it.
Guyana’s population has had decided preferences in terms of employment. We have always had African Guyanese tending towards employment in the state sector. In the private sector, they are mostly located in administration, rather than as entrepreneurs. Notwithstanding 28 years of PNC rule, during which African Guyanese were encouraged to go into business, followed by 23 years of PPP rule, during which Indian Guyanese were encouraged to seek employment in the state sector and particularly the security services, the essential employment preferences at the time of Independence has remained largely intact today. These employment preferences are rooted mainly in history.
At the event marking the 100th Birth Anniversary of Cheddi Jagan sponsored by the Cheddi Jagan Research Centre, former President Bharrat Jagdeo expressed fears that the general elections due in 2020 will be rigged. President Jagdeo cited the circumstances leading up to the appointment of the Chair of the Elections Commission, namely, President Granger’s rejection of three lists of a total of eighteen names, and the President’s choice of Justice James Patterson. President Granger had the authority to appoint a judge, former judge or person qualified to be a judge, if he rejected the list of the Leader of the Opposition on the ground that the names submitted were not acceptable to him. It was a controversial departure by the President from the formula adopted in 1992, which had subsequently received constitutional imprimatur.
Rigged elections have had a long, known and sordid history in Guyana. Surprisingly, instead of leaving the past behind after the reforms of 1990-1992, it was the PNC that became the accuser, alleging that elections between 1992 and 2006 were rigged. Observers noted that 40 percent average it obtained from 1992 onwards, after the large majorities between 1968 and 1985 had to be explained. The rigging of the elections thereafter was the explanation, justifying the large majorities. But it might have been the symptom of the deeper ethnic malaise that afflicts Guyana, just as the PPP’s claims that the elections of 2011 and 2015, in which it received substantially less votes than before, were rigged against it.