The courts should not be seeking to enforce the FM&A Act which is unconstitutional even as it relates to the courts themselves

Someone once said that “you’re entitled to your own opinions. You are not entitled to your own facts”.

This place that we call Guyana is replete with very strange creatures, not all of which are four-legged or invertebrate.  What is more, like good obeah folk, we Guyanese are in the habit of confusing dreams with reality.

Two sets of recent events merit comment in this context.

Just as the PPP has managed to take advantage and abuse the breathing space offered by long drawn out negotiations so also with the law and the Constitution. The most recent case as regards the abuse of the law and agreements signed by the Government of Guyana was that relating to the invitation to tender by a Ministry for businesses to photocopy textbooks for the school system, without reference to copyright laws. That shows just how embarrassing and ridiculous wanton disregard for the law can be. There is an Attorney General (AG) described under the Constitution as the Principal Legal Adviser to the Government of Guyana (Chap IX,  Art 112 (1) ). Clearly, the AG has failed in his duty to educate the Cabinet on either the law or Sophocles who is reputed to have said that, Nobody has a more sacred obligation to obey the law than those who make the law!

If an AG can provide advice that is more flawed than that of a literate layman, why is he being retained let alone paid as an AG. As a country which boasts some of the region’s greatest legal minds ranging from Wills, Mortimer Duke, Donald Jackson and the Luckhoos, to name only those who have left us, how have we managed to arrive at this sorry state? The reason is simple, the PPP regime is in the process of enshrining lawlessness.

Another example might be had from the Parliamentary debate on the motion concerning the autonomy of Constitutional Offices. During the course of that debate I reminded the House that the current Guyana Constitution clearly provides for the Judiciary to be independent and in order to ensure this, Art. 222A (a) states that the entities listed on the third schedule to this Article would be a “direct charge on the Consolidated Fund and determined by a lump sum by way of annual subvention approved by the Assembly”. Notwithstanding this requirement  of the Constitution the PPP regime has nonetheless placed the Judiciary – which includes the Supreme Court and the Directorate of Public Prosecutions – along with 6 other agencies including the Ombudsman, that are supposed to be independent or autonomous, on the schedule of the FM&A Act of 2003. All seven agencies are supposed to be protecting the fundamental freedoms of Guyanese. Instead, they have been classified as Budgetary Agencies under this Act and since 2003 have been subject to a range of requirements including, providing, to the Finance Secretary any information that is requested concerning the affairs of the budget agency (the Judiciary) (Section 11 (2)). The constitutional dangers here should not need elaboration by me.

Such is the confusion in the system however, that the Courts, recently in a preliminary judgement apparently based on a reading of the Constitution and the FM&A Act, ordered the MOF to withdraw from the Consolidated Fund, monies denied the Government by the Parliament. Apart from the obvious question of the adequacy of the Court’s reading of the law and the dangerous implications of the preliminary decision, there are two more obvious questions,

i. how have the Courts failed to reflect on the contradictions of the Act and the Constitution when it claims to have considered both documents?

ii. Since the Constitution is the supreme law why has the FM&A Act not been struck down?

iii. should the Courts be considering, let alone seeking to enforce the FM&A Act, an Act that is palpably unconstitutional even as regards the operation of the Courts themselves?

iv. can the Courts properly order the Parliament even indirectly to respect an unconstitutional Act?

Most of those who recognize the problem would say no. But then one has to ask why has the Court not recognized this obvious problem or the threat to itself?

It has been suggested to me by a friend that maybe they subscribe to Abraham Lincoln’s maxim that, the best way to get a bad law repealed is to enforce it strictly!

Dream on!

In similar vein some members of the Parliamentary Opposition in the immediate post-election euphoria promised to do a variety of things which could only be accomplished if the PPP agreed. Since most were intended to penalize the PPP, the latter’s agreement was never going to be forthcoming. Yet here we are, a year after the 2011 elections with a variety of  prominent and not so prominent figures calling  for the Opposition to deliver on its promises or to exploit the new dispensation as though the PPP regime would take these things lying down.  The Opposition has only won a majority in Parliament and not the Presidency but as I have pointed out on numerous occasions the Presidency is not only supreme in spite of the wishes of the public, it has also staged a coup.

In the light of this it is worth restating that:

The Opposition cannot deliver on the changes in the Constitution that requires a two thirds majority. It will not manage to get PPP support unless it can muster the weight of extra-Parliamentary forces to give it momentum. The Parliamentary and extra-Parliamentary action should be so organised as to stop the PPP leaving the bargaining table until the necessary key changes are agreed and actually implemented.

We have seen the PPP come to the table too often and after gaining time and exhausting the energies of the Opposition, continue as before.

To expect the one seat majority alone to unseat the Government is a dream.  The Parliamentarians should of course do their work satisfactorily, the lawyers must do their work professionally, the NSAs theirs and, of course, the leaders of political parties in particular.

Without this and the synergies working together can engender, we shall be relegated to recurring dreams of better times and politics.

Yours faithfully,
Carl B Greenidge