If elections are not held on or before September 18, as appears likely, the Government will fall over a constitutional precipice which is fast approaching. According to Vice President Khemraj Ramjattan, Minister of Public security, speaking on a podcast on Wednesday last, if the Gecom Chair advises the President that free and fair elections cannot be held without a new electoral list compiled by house to house registration, the President will have no choice but to fix a date for elections when it is estimated that registration is expected to be concluded. That date is December 25, according to Gecom’s lawyer, advising the CCJ.
In relation to whether elections will held on or before the due date of September 18, VP Ramjattan said on Wednesday last, “I doubt it, I seriously doubt it.” While VP Ramjattan stressed that it was his opinion, such an opinion coming from a Vice President of Guyana, even before a Chair of Gecom is appointed and forms an opinion on the list, carries great weight. When asked about the status of the Government after September 18, he said that the doctrine of necessity will apply so that the Government would be lawfully in power and its decisions would be lawful. Accordingly, any Government can deliberately refuse or fail to hold elections, claim the right to do so under the doctrine of necessity, and lawfully stay in office! Such twisted logic has sadly become part of the degenerated discourse on our constitution and its interpretation.
The Caribbean Court of Justice (CCJ) has ruled that the Guyana National Assembly “properly passed” a no confidence motion (NCM) against the Government on December 21. Thereupon, the clear provisions of Article 106 became “engaged.” The Court explained that Article 106 is clear and it is the responsibility of the constitutional actors in Guyana, including GECOM, to honour them. The Court said that elections should have been held since March 21, 2018, but was under pause because of the court cases. “But this Court rendered its decision on 18 June, 2019. There is no appeal from that judgment.”
In very clear language, quoted above and below, the Court said that while it is not the responsibility of the Court to fix a date for elections, it must be held in accordance with Article 106 of the Constitution. The ruling stated: “It is not, for example, the role of the Court to establish a date by or on which elections must be held, or to lay down timelines or deadlines that, in principle, are the preserve of political actors guided by constitutional imperatives. The Court must assume that these bodies and personages will exercise their responsibilities with integrity and in keeping with the unambiguous provisions of the Constitution bearing in mind that the no confidence motion was validly passed as long ago as 21 December 2018.” The complaints by Opposition lawyers about the CCJ not ordering elections by a certain date is not well founded. The Court did just that, but not in so many words.
Guyanese can be excused for being baffled at the latest developments in the current political saga gripping the nation.On February 25 President Granger wrote to the Chairman of the Elections Commission, Justice James Patterson, urging the Commission to commence preparations for the conduct of the general and regional elections. In the letter the President noted that the Commission had said that it did not have the capability to deliver credible elections within three months of December 21 and that additional funds were needed. The President committed the Government to ensure that the Commission is provided with financial resources and has sufficient time to conduct credible elections. The word ‘credible’ is used twice.
Published at the same time was the President’s letter of the same date to Opposition Leader Bharrat Jagdeo. President Granger expressed the wish to consult with Mr. Jagdeo on the constitutional role of the National Assembly in the present situation and the Commission’s readiness and requirement for funding to conduct the elections. The letter ended with the President informing Mr. Jagdeo that he had written to the Chairman of the Commission urging him to initiate arrangements for the conduct of the elections.
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.