I will stay away from the continuing controversies between the current and past Attorneys-General. To coin a phrase, when elephants rumble, it’s the insects in the grass who get trampled. I will likewise stay away from the merits or otherwise of the Chief Justice’s decision ordering the Minster of Legal Affairs to bring the Act into force. It is likely to be appealed and the Court of Appeal will decide. But why is the Judicial Review Act important to the public?
There is an area of law called ‘public law.’ While much law notionally exists for the protection of the public, ‘public law’ more directly protects the rights of the citizen in his or her relations with the state and public bodies or authorities by holding them to account. The instruments used by the courts in public law are of ancient origin, initially directed against the King, and are called writs of certiorari – to quash a decision, mandamus – to order something to be done, prohibition – to prohibit an act and the lesser known, quo warranto – challenging the right to hold an office. The writ of habeas corpus – ordering the production of a body, is linked to these. They are called ‘prerogative’ remedies issued by courts on the application of citizens for ‘judicial review’ to enforce their rights against the state or public authorities. Currently, these are the only remedies available in public law.
The total electoral devastation of the Democratic Labour Party(DLP) and the political exit door shown to former Prime Minister, Freundel Stuart, by the Barbados electorate at the elections last Thursday, is an apt and decisive answer to the vicious attack Stuart made on the Caribbean Court of Justice earlier in the week, when referring to the judges derogatorily as ‘politicians in robes.’ It is not unusual for politicians to be peeved by court decisions. Guyanese politicians have expressed ‘concern’ about issues relating to the CCJ on several occasions in the past, including the recent past.
In the UK, the developed country from which we inherited our laws and jurisprudence, and whose precedents are the most influential in the CCJ, judges and courts are regularly criticized, as they should be. But Stuart did not merely criticize; he unjustifiably attacked the CCJ for political bias and undertook to withdraw from the Court. Had he won the elections, Barbados’s withdrawal would have dealt a crushing blow to Caribbean unity and, worse, would have weakenedCaribbean jurisprudence and the rule of law in the region.
The basis of Guyana’s political outcomes has remained static for many decades. With deeply entrenched ethnic voting patterns, Indian Guyanese, originally constituting close to 50 percent of the population, would always have the upper hand. The two elections in 1957 and 1961 demonstrated to the African Guyanese political leadership that if it wanted political power, it would have to obtain it in coalition and later sustain it through electoral malpractice. And so, after the 1964 elections, in which the PPP obtained the plurality, the PNC and UF, together holding a majority of the seats in the parliament, formed a coalition government. The coalition ended in 1968 and the PNC resorted to electoral malpractice thereafter to maintain political power.
In 1957 the PNC merged with the United Democratic Party (UDP). The UDP, led by John Carter, a prominent lawyer of Mixed heritage, represented the interests of the Mixed and African middle and professional classes. At some point between 1973 and 1985 the support of these groups for the PNC started to wane. But it mostly returned with the election of Desmond Hoyte as President. These groups showed their electoral clout in 2006 when a section of it abandoned the PNC and supported the AFC. Many of these votes went back to the PNC after the election of David Granger as its leader, but it is believed that a significant number remained with the AFC. At the 2011 elections the APNU obtained 40.81 percent of the votes, much in line with its record in free and fair elections, and the AFC got 10.32. The AFC benefited from the loss of between 5 to 7 percent of its votes from previous elections. It obtained 48.60 percent.
In the critical years of the 1970s and 1980s, three major issues engaged the attention of my political colleagues – restore democracy, advance social progress and avoid civil strife. We firmly believed that Guyana could make no progress unless full democracy through free and fair elections were restored. Our analysis was that it was the lack of internal democracy that was responsible for what we then saw as the failure of the economic reforms in the 1970s and 1980s to lead to economic and social progress. The PPP saw this and gave a lifeline to the PNC more than once. The most notable was the National Patriotic Front under which, after free and fair elections, the largest political party would take the prime ministership and the second largest the executive presidency. The PNC would not hear of it. Even if democracy had not been restored in 1992, developments in the world would have ensured that by today we would have been living in a democratic Guyana.
The victory of democracy in 1992 has resulted in substantial economic and social progress for Guyana. But this progress gave rise to other problems. The incipient problems of corruption and lack of transparency and accountability exploded, with little effort to resolve them. Also, the intractable issue of ethno-political domination was put aside because of the unremitting, and sometimes violent opposition of the PNC, as well as some degree of triumphalism within the PPP. Attempts to work through and resolve differences between the PPP government and Desmond Hoyte and later Robert Corbin failed. The PPP government was mainly responsible. When the real opportunity of embracing unity presented itself in 2011, the PPP did not even consider forming a coalition with APNU. The reticence today of both parties in embracing constitutional reform which would diminish the impact of ethno-politics is the next hurdle the Guyanese people have to overcome.
There was a signing bonus. It was known but denied by several Ministers of the Government. There should be consequences but the precedent has long been established that ministerial responsibilities are not recognized and therefore consequences do not flow from their actions or omissions. Unless there is a mass upsurge, which is unlikely, this uniquely unjustifiable deed will continue to be defended, as it was in or just out of the National Assembly. There is no excuse for the secrecy and any attempt to defend it is an insult to the Guyanese people. Transparency International called it “deception.”
In Guyana, politics is a zero-sum game. Rules of transparency and accountability are weak and where they exist are not enforced. No conventions have not been established or are entrenched. The prevailing wisdom, therefore, is to give the Opposition and the Guyanese people as little as possible, and where possible, nothing. This is the national, political culture derived from its core defect, the politics of ethno-political domination, which implies that the other side are their supporters are enemies and not to be trusted – with anything. It’s us and them, sometimes, us or them. And the people are the pawns. This is the reason why the APNU-AFC coalition, when in opposition, could have been so strident in defence of transparency and accountability, and can now so blithely dismiss such concepts with contempt.