Dear Editor,
The CCJ decisions have no doubt caused an impact on Guyana and raised a great storm of dust regard the potential consequences of the decision, one I hope the following might do some part in dispelling in order that the seriousness of the path before is seen with greater clarity.
With regard to the GECOM Chair and the current status of his appointment, I note the arguments made by former Prime Minister Hamilton Green, that the Justice Patterson should resign immediately, and the principals of A New and United Guyana (ANUG) that resignation is not an option since the Court’s ruling that Justice Patterson’s appointment was fatally flawed means that Patterson’s occupation of the Chair should be considered to be automatically voided.
I respectfully disagree with the learned gentlemen. The decision of the lower courts that validated the appointment of Patterson as constitutional in effect affirmed him in that position – the CCJ’s invalidation of the process under which he was appointed would therefore not serve to nullify his substantive appointment as if it never legally happened.
If we are to treat his appointment as never having been constitutional in the first place – despite being validated by the lower courts in exercise of their competent jurisdiction to do so – then it in effect nullifies every single decision he made as chair which makes no functional or practical sense.
While he should therefore be compelled to resign, his appointment now being decided to have been unconstitutional, even that should await the consequential orders of the CCJ since it is that court, having decided on the constitutional
invalidity of his appointment, that has – flowing from that decision and not separate from it – afforded the parties involved until Monday, June 24 to come up with a solution that may or may not call for his immediate resignation.
The aptly named Justice Wit declared on behalf of the Court, in expressing what was expected of negotiation between the government and opposition prior to reappearing before the delivery of consequential orders, “We are hoping for a happy marriage between principle and practicality.”
With regard to those orders, as the successful party in this process, the PPP’s overwhelming focus will be on the principle of the decision, with the secondary case being made that the practicable entails elections within three months. The President on the other hand has depended on the argument that GECOM has stated that it needs to embark upon house-to-house registration to create a new list, a process that will practically take until November, to argue that the greater principle at play is that of ensuring that there is a ‘credible’ process and one that does not purportedly disenfranchise new voters via their non-inclusion on the Official List of Electors (OLE) for the next elections.
While His Excellency’s arguments are definitely not without merit on the abstract level, I would argue that a far more comprehensive argument has to be made on the precise status of the current list. More importantly, there are corollary considerations that will arise if this is the path taken, ones with grave consequences for our basic democratic infrastructure.
The first has to do with the status of the legislature. It is unlikely that the CCJ having deemed the NCM as validly passed on December 21, 2018 would then reset the clock and require that elections be held 90 days after the delivery of the consequential orders, June 24, 2019 without taking into account the legal status of the National Assembly and therein exists our looming crisis.
Article 61 of the Constitution says:
“An election of members of the National Assembly under article 60(2) shall be held on such a day within three months after every dissolution of Parliament as the President shall appoint by proclamation…”
For the CCJ to give effect to its validation of the NCM through its consequential orders, said orders would have to (1) treat cabinet as having been automatically dissolved as of December 22, 2018; (2) treat all ministerial portfolios as nullified as of March 22; (3) treat the National Assembly has having been automatically dissolved as of March 22, the interregnum between the Court of Appeal decision and the CCJ decision notwithstanding. The only possible pathway to preserve the pre-March 22 status quo would be through the National Assembly with the consensus of the opposition (Article 106(7)), which we can perhaps agree will not happen.
Mr. Jagdeo’s contention that he would allow for up to three months to hold elections, if codified in the consequential orders, might allow for a possible extension of the life of parliament within this period but this would be with the insistence that all ministers resign their portfolios immediately. And even that scenario still falls short of the timeline set by GECOM, and the President’s stated intention to abide by that timeline, by at least two months.
I had previously argued that 162(2) takes precedence over 106(7) in that the former gives GECOM the right to postpone the date of an elections beyond the President’s responsibility to proclaim a date for elections as enshrined in the latter, but this is consequential only to the determination by GECOM that there is some clearly defined hardship underwriting its postponement. Given ample opportunity to represent that such hardship exists during the CCJ hearings, counsel for Justice Patterson appeared to be unaware of the existence of this provision.
Further, without a presidential declaration of elections, GECOM cannot invoke 162(2). Without the invocation of 162(2), there is no constitutional coverage for the holding of elections beyond the deadline likely to be codified in the consequential orders, a deadline that the validation of the NCM would not allow the court to extend beyond three months of the delivery of the orders at a maximum, without consensus of the opposition as I addressed earlier.
This would mean that – unless some mutual consensus is arrived at to the contrary – we will be a country with no legislature and the only executive authority being vested in the President, whether we count from the delivery of the consequential orders which effectively closes off the CCJ judicial process and as would be in keeping with strict adherence to the validation of the NCM, or from September 24 as might arise from consensus and/or recommendation by the opposition.
Whatever trust and sense of integrity one might invest in the person of His Excellency, this is a constitutionally and morally untenable position to be in for any period of time.
How do we go forward? How do we arrive at the [happy] marriage between principle and practicality as hoped for by the good Justice Wit?
The first step of course concerns the fit and proper appointment of a GECOM Chairman to oversee the inevitable elections. It goes without saying that the retention of Justice Patterson, while eminently qualified for the post, is not a viable option, and not one that the PPP will agree with unless he is placed under such restrictions as completely negate the autonomy of his office and render him a virtual rubberstamp.
Subsequent to the specific directions of the consequential orders, Justice Patterson should therefore resign before the next statutory meeting of GECOM and without making any substantial decisions beyond preparing a comprehensive portfolio to hand over to his successor. In keeping with the CCJ’s exhortation towards meaningful prior consultation between the President and the Leader of the Opposi-tion, and in keeping with its finding that the “President should only find a nominee unacceptable for some good reason on objective grounds [and] if a President were permitted, capriciously or whimsically, without proffering a good reason, to reject eligible nominees, this would frustrate the proper working of the Constitution, defeat the intention behind the amendment to Article 161(2) and pave the way for unilateral presidential appointment”, I offer that the Leader of the Opposition resubmit the consolidated version of the previous three lists (18 candidates) under a framework that the President select twelve of those candidates (or even six) that he finds not unacceptable in keeping with CCJ’s decision, after which the LOA formally submits the final list of six for selection of the best candidate by the President. Such a process should be time-bound.
The next step would be for the newly appointed GECOM Chair to, within a clear deadline, consult with both the Commissioners as well as the technical staff of GECOM as to the earliest possible time for free and fair elections, the presumption being of course that the indicators that normally indicate “free and fair” function effectively for the semantic standard of ‘credible’ elections. Considering the candidate would have been arrived at by consensus, and that there can be no impugning of his or her judgment, the decision to hold elections either within the three-month period or November should be respected by both parties.
In closing, when the dust settles, or perhaps even in the midst of this looming crisis, Guyanese citizens have to realize that this state of affairs cannot be allowed to continue any longer. The division, the bickering, the tribalism of the past cannot a roadmap for the future.
We have failed to evolve beyond the base electoral formula of math and rhetoric, and on the eve of the exploration of unprecedented exploitation of a valuable resource (granted one already skewed to benefit others more than it benefits us), we have made no significant step towards the development and deployment of our most valuable resource, our historical diversity, a diversity that has even more global currency than it has locally.
Yours faithfully,
Ruel Johnson
