The Caribbean Court of Justice has extensive powers to make the orders that had been sought in the no confidence motion cases. Without serious justification, it declined to do so. Its ‘timid and ineffectual’ decision has intensified the constitutional chaos in Guyana. High Court cases are now being brought for orders and declarations that the CCJ ought to have made. In their absence, the Government has refused to act on the CCJ’s decision.
Mr. Andrew Pollard, writing in the SN on 28 August pronounces the CCJ’s decision as fine and is horrified at my criticism. As a newly minted Senior Counsel, Mr. Pollard should know that criticizing judges and courts in far sharper language than mine, is quite an accepted activity in normal countries. What is not normal is for a court that finds constitutional violations, to decline to make orders to rectify those violations, but relies instead on the ‘integrity’ of politicians. But no word from Mr. Pollard about this abject failure of the CCJ and of the Government’s continuing violations of the Constitution.
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.
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.”
Sex and politics intersected in an explosive controversy that has gripped the United States as Professor Christine Blasey Ford gave evidence last Thursday to the United States Senate about a sexual assault perpetrated against her in the summer of 1982 by Judge Brett Kavanaugh, President Trump’s nominee to replace Justice Anthony Kennedy, on the US Supreme Court.
The Republican-controlled Judiciary Committee of the US Senate initially refused to hear Professor Blasey Ford. However, public pressure forced the Judiciary Committee to reopen the hearing.
Ryan Crawford, whose middle name you will have to guess, is an attorney-at-law in practice in Berbice, and the son of the late Marcel Crawford, one of the Ancient County’s distinguished lawyers. He was the victim of a stop on the East Coast public road by police on Thursday last, presumably while on his way up to Berbice. Mr. Crawford became incensed and let loose as tirade of expletives, objecting to the stop by the police. Punctuated by a repetitive flow of profanity, Mr. Crawford declared his name, but with a qualifying expletive for his surname. With the same descriptive dexterity, he demanded that the police should tell him why he was … stopped, while at the same time informing the policeman that he can only be …. stopped if he was …. suspected of having committed a …. crime. He challenged the police to inform the …. President and the …. Vice President and whoever the …. else he wanted to and then drove off.
The incident was recorded and found it way on social media and, as is to be expected, there were many comments, some supportive and some condemnatory. The supportive comments expressed in various ways disapproval of the police activity of stopping vehicles on the road for no apparent reason, then requesting driving licences. A police stop is often accompanied by the inevitable request for a “raise.” Despite the decades of criticism of this type of police activity, nothing has ever been done by the authorities to restrain it.