“I WILL FOLLOW THE LAW.” BUT WHAT IS THE LAW? ELECTIONS BY SEPTEMBER 18?


At her swearing in as Chair of Gecom on July 29, 2019, Justice Claudette Singh said that she will follow the law. But what is the law? Elections by September 18? The Supreme Court certainly thought so. In order to correct misreporting in connection with preliminary deliberations in the matter of Christopher Ram v Chief Election Officer and others, the Supreme Court of Judicature Protocols and Communications Unit issued a Press Release on Wednesday 24 July which said: “The High Court confirmed that the Chief Justice (ag) stated that the consequential orders of the Caribbean Court of Justice (CCJ) indicate that elections should be held by September 18, 2019, or such longer period as the National Assembly determines.”

This view accords with the judgments of the CCJ in the consolidated appeals on the no confidence motion in which the CCJ gave its judgment on June 18 and consequential orders on July 12. In its July 12 decision the CCJ said: “Given the passage of the no confidence motion on 21 December 2018 a general election should have been held in Guyana by 21 March unless a two thirds majority in the National Assembly had resolved to extend that period. The National Assembly is yet to extend that period. The filing of the court proceedings in January challenging the validity of the no confidence vote effectively placed matters on pause, but this court rendered its decision on 18 June 2019.” No deconstruction of this statement is necessary to conclude that the CCJ is saying that time, which was paused by the court actions, began to run once again on 18 June 2019.

Continue reading ““I WILL FOLLOW THE LAW.” BUT WHAT IS THE LAW? ELECTIONS BY SEPTEMBER 18?”

THE PRESIDENT IS TRANSPORTING GUYANA INTO A DYSTOPIAN REALITY


Just over a week ago, before President Granger left for Cuba, he pronounced that there would be ‘gridlock’ unless he was given the right to recommend names for inclusion in the list of six persons the Leader of the Opposition would recommend to him from which to choose the Chair of GECOM. In other words, the President was demanding the right to choose his own nominee, perhaps up to then the most astonishing interpretation of the several that the President had made of the Constitution and the CCJ’s decision. Fortunately, with the appointment of Justice Claudette Singh, this is no longer an issue.

But he has otherwise outdone himself. It was reported in SN last Friday July 26 that President Granger told members of civil society on Thursday that “the President cannot tell the Elections Commission when elections must be held neither can the courts.” He also reportedly said that the CCJ issued no coercive orders and therefore the Government is not in contravention of the orders of the court or of the Constitution. Presumably, President Granger delivered the same message to the diplomatic community, the Commonwealth Secretary General and the Caricom Secretary General, to all of whom he spoke. On this mindset, the danger remains that the President could still refuse to dissolve Parliament and fix a date for elections.

Continue reading “THE PRESIDENT IS TRANSPORTING GUYANA INTO A DYSTOPIAN REALITY”

GUYANA IS APPROACHING A CONSTITUTIONAL PRECIPICE


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.

Continue reading “GUYANA IS APPROACHING A CONSTITUTIONAL PRECIPICE”

THE CHARADE MUST NOW END


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.

Continue reading “THE CHARADE MUST NOW END”

ADJUSTING TO AN INCREASINGLY INDEPENDENT JUDICIAL CULTURE


Grumbles of dissatisfaction were heard from the PPP/C Government when the Caribbean Court of Justice (CCJ) ruled against the Government and in favour of Trinidad Cement Limited (TCL) in 2009. TCL had taken the Guyana Government to the CCJ for violating the Treaty of Chaguaramas by not seeking COTED’s permission prior to importing cement from outside the Region. The Court found in favour of TCL but the Government of Guyana got off by the skin of its teeth on the claim by TCL of US$250 million damages. The PPP/C Government was held liable for several other violations of the Treaty. In the case of the Surinam company, Rudisa, which challenged at the CCJ the imposition of an ‘environmental’ tax on plastic bottles, the CCJ ordered the Guyana Government in 2014 to pay Rudisa US$6 million in damages. In 2017 in a similar case filed during the PPP’s term of office the CCJ ordered the Guyana Government to pay S. M. Jaleel & Co. Ltd., a Trinidad company, the ‘environmental’ tax unlawfully collected being US$11 million with interest. A future PPP/C Government will hopefully understand in future that there are consequences if it blithely ignores laws and treaties. It would have to adjust to an increasingly independent judicial culture. But emerging from an authoritarian political and judicial culture, this was not supposed to happen, even in strictly commercial matters which had no political implications.

Many PPP leaders and supporters were grossly disappointed when the CCJ overruled the decision in the Attorney General v Richardson case in which the Court of Appeal had decided that the constitutional provision limiting a president to two terms was unconstitutional. The CCJ decided that the provision did not violate the constitution. The effect of the decision was that the former President Jagdeo could not be nominated for a third term as president. The CCJ demonstrated that it was prepared to cut through the dense thicket of esoteric, interpretative, dicta and adopt a purposive determination to reflect the intent of the constitution.

Continue reading “ADJUSTING TO AN INCREASINGLY INDEPENDENT JUDICIAL CULTURE”