THE CONSEQENCES OF HOLDING OFFICE ILLEGALLY


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 main consequences of remaining unlawfully in officeafter March 21, by which time elections are due, is that the Government will lose international credibility and support, much as the Ramotar Government did in 2015, after it prorogued the National Assembly. Governments with resident diplomatic missions in Guyana, particularly those of Western countries, which have been taking strong positions against the usurpation of power elsewhere, will exert diplomatic pressureon the Government which, according to the Chief Justice (ag), would not be entitled to be in office. While they may want to remain in communication because the Government will hold de facto power, official bilateral activity may cease. Visas might be withdrawn. Overseas assets could be frozen.Economic or other sanctions may be imposed. If measures are imposed, they could be implemented selectively and one at a time, or all together.  

Historically reluctant to say anything adverse against APNU, when it was the PNC, Caricom’s attitude will also be under a high degree of scrutiny. In contrast to its silence about rigged elections in Guyana and its infamous embrace of Desmond Hoyte at Mustique in 1985, Caricom showed no reluctance to shave two years off the lawfully elected PPP Government by the 1998 Herdmanston Accord, by agreement, of course, but by a PPP Government that was under siege. However, public opinion in the Region is already taking shape against the Government. As an initial step, Caricom may well decide that from March 22, when the Government becomes illegal, it will not be invited to any meetings of Caricom or of its bodies and agencies, or Heads of Government meetings. It might feel that an illegal Government cannot represent the people of Guyana.

It is difficult to speculate what the Government can be called on to do in the face of its illegal existence after the due date for elections. It cannot lawfully exist so that anything that it might do will be illegal. It cannot convene the National Assembly. Even if it does, anything that the National Assembly may enact will be unlawful. When its existence becomes unlawful then the only lawful way forward, as indicated by Mr. Christopher Ram, is for the Chancellor of the Judiciary (ag) to take office as President. But what can the Chancellor do in the absence of a lawfully existing National Assembly? We would be in unknown constitutional territory. 

Therefore, the best strategy is for us to settle our own problems. President Granger and Leader of the Opposition Bharrat Jagdeo should meet and agree to a compromise date for elections. As a first step the life of the Government can be extended to March 31 or thereabouts, by which time the CCJ would be expected to rule. If the Chief Justice’s decision is upheld, an elections date would be fixed during July. If the Government succeeds, it carries on to the end of its term.

If the Government cannot be persuaded to act reasonably, as indicated above, the Carter Centre should intervene to mediate a solution with the clout of the State Department behind it.President Carter, whose credibility is respected across the political spectrum, may well be able to persuade the parties along the lines outlined above, or some alternative course which prevents a crisis from developing. President Carter may also use the opportunity to persuade the parties to commit toconstitutional reform to provide a framework for political parties to share executive responsibility in the governance of Guyana. President Carter, having led the way to the restoration of democracy to Guyana, believes that this is the only long term solution to the ethnic politics that perpetuates Guyana’s instability. Both parties have already supported such a process in one form or another.

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