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.
Challenges to transparency in Government have attracted public comment in the past two weeks. I make no allegation or judgment on recent events since they are based only on newspaper reports. But apart from these recent matters, allegations of corruption and nepotism are to be expected in the absence of strict and enforceable rules, which have been promised by the Government. These challenges have been occurring since Guyana gained its Independence and will continue until Governments take steps to enforce transparency and accountability.
There is clearly no across the board political appetite for steps to curb corruption and nepotism. The PPP/C came to office in 1992 with one of its major promises being the elimination of corruption. It brought auditor general’s reports, which had been lagging for seven years up to date. It established a more transparent system of procurement. It implemented the Integrity Commission. However, in the ensuing twenty years, with the vast increase in public and infrastructure spending, corruption escalated to unimaginable proportions in every sphere of society. It became possible to grease palms to speed up or obtain services. Whatever the reason, so sensitive was the PPP/C Government to allegations of corruption, that when I described it as ‘pervasive’ in 2012 and called for additional steps to deal with it, I was severely attacked and forced to resign.
The meetings last week between the President and the Leader of the Opposition and the President and the Guyana Elections Commission, did not yield a solution to the impending constitutional crisis that has been dominating the news in recent weeks. Maybe the President and his Attorney General do not believe that a constitutional crisis faces Guyana on March 22. Both have said that according to article 106 of the Constitution, the President holds office until the next President is sworn in. They have purposefully ignored that a no confidence motion was passed in the National Assembly on December 21 and that the new president must be elected in three months, unless that time is extended by a two-third majority.
But this issue has now gone beyond what the constitution says and means. The President’s failure to fix a date for elections is because APNU+AFC intends to remain in office for as long as possible. This is aided by the majority on the Guyana Elections Commission who have voted, and will no doubt continue to support, a new registration exercise. A nation-wide, house-to-house, registration exercise will last into next year. If APNU+AFC’s effort to hold political power succeeds, it will hold elections between May and August next year, when its term of office would have otherwise lawfully ended. Having been caught flat-footed by the no confidence vote, it lost time, which it now seeks to unconstitutionally regain, to put systems in place to win the elections. This clearly is a matter of political life and death and explains the tenacity of its efforts.
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.
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.