Last week two events were reported that deserve some comment. The first had to do with the case between DIPCON Engineering Limited and the Attorney General (AG) of Guyana before the Caribbean Court of Justice (CCJ), which the AG, Mr. Basil Williams, lost and which means that the government have to pay DIPCON US$2.2 million. He was appealing a decision by the Guyana Court of Appeal that the period within which he could have appealed the decision of the High Court had long passed. The other was a report of an email sent by Mr. Khemraj Ramjattan to the membership of the Alliance for Change (AFC) apparently seeking to quell their concerns that the party might not have been consulted about President David Granger’s unilateral choice of the chairperson of the Guyana Elections Commission (Gecom).
Being an ambitious politician who has not been faring very well in his portfolio and knowing that his detractors will grasp at any opportunity to magnify and deprecate his misfortune, the AG, was, to say the very least, extremely miffed by the decision of the CCJ. However, in view of the important part he is playing in the Gecom matter, Mr. Williams made an important observation to the Guyana Chronicle. To paraphrase, he claimed that the court should be ‘concerned about the interest of justice’ and that no technicality ought to prevent it from dealing with the substance of the case. He was concerned that the highest court in the Caribbean would not take sufficient account of ‘the public interest’ in making its decision (‘AG knocks CCJ DIPCON ruling:’ Chronicle. 17/11/2017).
In relation to the appointment of the chairperson of the elections commission, I previously observed that ‘Courts exist to attempt to do justice by interpreting the law in various ways to guarantee liberty, to enhance social order, resolve disputes, maintain the rule of law, provide for equal protection, and ensure due process of law’ and then identified five factors that may be taken into consideration in judicial interpretation (Future Notes: SN: 25/10/2017). On this basis, I contended that on appeal the decision which allowed the president to make the unilateral choice will be overturned. On my assessment, this position is similar to what the AG thought the CCJ should have taken into account in the DIPCON case and as a result, I felt somewhat depressed that, if he is correct, the CCJ may not have done so. However, what mitigated that despair is that that I cannot remember the AG appealing to this broader conception of legal decision-making in the case concerning the Guyana Elections Commission, where the public interest is far more endangered and thus the need for justice much more pronounced. One must only hope though that now he has recognised the benefit of and has indicated a commitment to this wider conception he will encourage all those associated with these kinds of issues to show a greater tolerance of them.
As I was considering the AG’s current stance, Mr. Ramjattan’s email to the faithful of his party came to mind and although I only intended to focus on one of its aspects, the email is deeply troubling in many respects. How could it be that only a few hours after his party told us that they had nothing to do with the president’s choice of the chair of the Gecom this missive could have come to light? Why would the AFC send an email that could imply that the party not only was aware of but perhaps even initiated the thinking that the president would find support in the ruling circles for a unilateral decision? Please note that according to Mr. Ramjattan, asked what he thought ‘of the names’ he replied ‘that I was not comfortable with any of those names presented. … I then went on to advise that if he was also of that opinion, then he is within his right to proceed to name a person who fits the constitutional requirements as he is empowered to under the proviso in the same article, 161.’ What does the leadership of the AFC believe the nature of its membership to be if it could conclude that such an email would have given them comfort? How could a party that took pride in boasting of its moral distance from the behaviour of the two old parties fail to grasp and advise on the difference between what the law may permit and what is just and in the national interest? How could two senior party/government personnel (Mr. Raphael Trotman was present and concurred) in such a short interval between their sending the placatory email and the party’s statement denying involvement, have either forgotten that the email was sent, believe that the party members would not at some point make it public and/or did not appreciate or cared little about the possible deleterious ramifications of their action?
Returning to my main concern, I believe that it was the German/American political theorist and commentator Hanna Arendt who said that ‘equality of condition is a basic requirement for justice’. The election process is very much like an athletic race in which no participant is superior to the other and everyone must adhere to prior established and managed rules and well understood starting place and finishing line. The Carter formula could have no other interpretation than this, and if we apply this general principle and the broader conception of legal interpretation to the appointment of the chairperson of the elections commission we will avoid the faulty and self-serving posturing that has littered this quarrel.
Particularly in our extremely competitive elections environment, it could not have been that the drafters and those who agreed to the Carter formula would have intended that the opposition leader could insist that the president accept one of the persons he designated as fit and proper. Similarly, the intention would not have been to give the president the unilateral right to choose whomever he feels like! I argued before that ‘The Carter formula contains a ‘silent’ negotiation process, and as in all negotiations, attempts to manipulate the process should be expected and it is for the other side to preempt and/or stymie such efforts.’ Race and ethnic identities are important to give comfort to the leadership and also to the mass of supporters that their interest is being properly served. In this context, on each occasion Desmond Hoyte had to present a list he gave the PPP/C five Africans and one Indian with whom he could live, knowing full well that, as he chose an African when he was president, the PPP/C was more likely than not to choose the Indian, which they did on every occasion.
However, we are at a stage in the process where a third party in the form of the court is resorted to, and notwithstanding the reactionary intervention of the AFC, as if by providence, at a very practical level, the government, through its attorney general, has been made to understand the usefulness of a broader type of judicial decision-making in providing justice and protecting the national interest. ‘Equality of condition is a basic requirement for justice!’
