New old stories

This has been an unusually good week for finding issues to comment upon, but apart from joining those celebrating the success of the 2017 STEM Guyana team, I want to focus on two matters – the African Business Round-table and acting Chief Justice Roxane George’s decision in the case relating to the appointment of the chairperson of the Guyana Elections Commission – as they again show that to be effective, any proposed social solution must be carefully aligned to the social context in which it is applied, and in Guyana this demands that special attention is paid to the same old story, i.e. race and ethnicity.

The STEM success, coming in a competitive process and from a group varying in socio/economic and educational backgrounds, indicates that once placed in the proper organisational environment and given adequate encouragement, initial training and tools, Guyanese can be internationally competitive. However, at the end of the day it also required a requisite level of education and mental agility and this suggests that, given the inputs we have afforded it thus far, our education system may not be as dysfunctional as some would have us believe.

Experience suggests that we need to apply a specific kind of paradigm when analysing Guyana, and the presentation by Ms. Vicky McPherson: ‘Public Corruption and the Curse of Oil: Lessons from Developing Countries’ at the African Business Roundtable helped to solidify this point. As reported, she claimed  that, ‘The most important thing to acknowledge about corruption is that you can have all the laws and regulations in place but if you don’t have the leadership and the personal conviction, quite frankly, to not steal from the public coffers, none of this matters.’ Therefore, since being corrupt is substantially about one’s personal conviction, some level of it appears unavoidable, and according to Ms. McPherson, ‘The thing that distinguishes many developing countries from others on how corrupt their systems become after the discovery of oil and other natural resources are …. two factors: whether or not the civil society is active and vocal in the development of that industry and whether the press will report what it finds when it ultimately does its job.’

After reading this I concluded that if these assertions are true and the required changes are not made pretty soon, we will not be able to prevent massive corruption and a drain on our impending oil resources. The efficacy of the media is dependent on the existence of an effective civil society and what Ms. McPherson and her colleagues did not know, and would perhaps have found preposterous if told is that Guyana does not have an effective civil society! This is an apparently absurd claim: after all, what is not political or familial is civil, and even if rudimentary, the  research Ms. McPherson did in preparing her presentation would have established that there are a few well known and active civil society organisations e.g., the Guyana Human Rights Associa-tion, Transparency Institute and various trade unions purporting to represent the interest of the working class.

However, for there to be an effective civil society requires the existence of a mass of people who at various times could be and have been convinced by forces of argument to take independent, differing socio/political positions. Such a body of people does not exist in Guyana, where two large ethnic groups comprising over 70% of the population have, over the last six decades, supported their ethnic political party regardless. As such, it does not actually matter which party is in government and how much they compromise the public purse; their leaders are not likely to lose significant personal or political ethnic support.

Had she been informed of this situation, perhaps shaking her head in some dismay, Ms. McPherson might have latched on to the fact that only a few years ago, the PPP/C lost government after 23 years, and she would have concluded that this must be a hopeful sign. She would have been correct had victory not come with such a small margin and had the PPP/C not made itself so totally abhorrent to supporters of the present government. As matters now stand, these supporters will do almost anything to keep their party in a position to protect themselves against any PPP/C resurgence.   Apart from a surfeit of prayers, I wonder what else Ms. McPherson would have advised!

Government propagandists have been busy trying to walk-back the president’s statement that ‘I will continue to act in accordance with my perception of the constitution. That is to say I will not appoint somebody who I do not consider fit and proper.’ The very construction of this statement suggested to me that by the end of his first sentence, the president recognised he was on the wrong track. At a time when, with all manner of grievances in their minds, bandits are running amok, prisoners are made to live in fields and the courts appear swamped, no president should be making statements that could further undermine the authority of the judiciary.

So far as I am concerned, the president’s unusual interpretation of Article 161(2) was so patently wrong that he could not have expected a better decision on this aspect of the case, and the notion that public officials should give written reasons for their decisions has been established in Guyanese jurisprudence for nearly two decades, so no surprise here again. However, although a written decision has not yet been provided, both the government and opposition appear to agree that the CJ’s oral decision was that ‘the president could proceed with an appointment outside of the names submitted by the opposition leader if he determines that all the nominees are unacceptable as fit and proper persons for appointment’ (SN:19/07/2017).

I believe that unless some mitigating explanation is provided in the written decision, this aspect of the decision would be extremely retrogressive. Since it is relatively simple to manufacture reasons for rejecting the list, it will in effect be taking us back to the pre-Carter era, when the PNC more or less had carte blanche over the elections commission and allegations of elections fraud were rife. If I am correct, this could never have been the intent of those who framed and initially accepted the Carter formula.

None of the parties made submissions on the above issue, therefore, the question arises as to what may have motivated the CJ to unilaterally go in this direction? It has been suggested that perhaps the intention was to be thorough, but then submissions could have been required from the parties. However, submissions would not have been helpful if the intention was to craft a decision that gives a level of comfort to the various sides. Apart from the actual law (positive and natural) and precedents, high judicial decisions should seek to maintain the integrity of the legal system and the stability and security of the state. We live in a very ethnically charged environment, where important political decisions may require a level of accommodation: where this has not been forthcoming, the outcome could be harmful to both the system and its practitioners.

Take the example of the previous acting holders of the offices of Chancellor and Chief Justice, namely Carl Singh and Ian Chang. Their legal capacities were never in doubt but they were never substantively appointed and as they were about to demit office, they were being publicly berated by the leaders of at least one section of population. The basis for this assault was partly because they allowed themselves to remain in office for a considerable time with the support of the leadership of only one half of the country.

There is thus undoubtedly a need for the political and related sides to persistently seek accommodation, but such efforts should be progressive and not take us back to a place best forgotten. These are two new incidents intricately linked to but foundering upon the same old story of race and ethnicity in Guyana!

henryjeffrey@yahoo.com

Comments  

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Reasons and sincere reasons

‘The lawfulness of state actors’ decisions frequently depends on the reasons they give to justify their conduct, and a wide range of statutory and constitutional law renders otherwise lawful actions unlawful if they are not justified by reasons or are justified by the wrong reasons’(Mathilde Cohen.

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