In the aftermath of the June 18, 2019 ruling by the Caribbean Court of Justice (CCJ) throwing out the government’s challenge to the December 21, 2018 motion of no confidence and dismissing the appointment of GECOM Chairman Justice Patterson as unconstitutional, it is important to keep reminding those in power what has been ordained in relation to the holding of general elections so that they can either comply or continue to register their defiance for all to see.
In passing it must be said that the incredulous legal challenge to the motion of no confidence and the subsequent refusal of the APNU+AFC government to comply with the clear words in the Constitution pertaining to the resignation of Cabinet puts every single line of the charter at risk of meretricious disobedience.
The words of the CCJ in the tempered language it is known for evinced disbelief that the Constitution had suddenly acquired complexities in articles that had no hidden meanings or paradoxes.
In its final orders of July 12, 2019, the CCJ said at paragraph 5 “The judiciary interprets the Constitution. But, as we intimated in our earlier judgment, these particular provisions require no gloss on the part of the Court in order to render them intelligible and workable. Their meaning is clear and it is the responsibility of constitutional actors in Guyana to honour them. Upon the passage of a vote of no confidence, the Article requires the resignation of the Cabinet including the President. The Article goes on to state, among other things, that notwithstanding such resignation, the Government shall remain in office and that an election shall be held `within three months, or such longer period as the National Assembly shall by resolution supported by not less than two-thirds of the votes of all the elected members of the National Assembly determine …’ The Guyana Elections Commission (`GECOM’) has the responsibility to conduct that election and GECOM too must abide by the provisions of the Constitution”.
The CCJ’s ruling that GECOM must also abide by the constitution is instructive. For GECOM to do this, it must be fully cognisant that the validation of the motion of no confidence requires general elections within three months of the extended date of June 18, 2019 unless there is an extension approved by two-thirds of the National Assembly. Whether an extension is possible is purely a political matter which is not GECOM’s business. Its business is to ensure that it makes reasonable arrangements to meet the 90-day framework. This would certainly rule out use of the present, wasteful house-to-house registration exercise.
Given the exigencies of the constitutional clock – one third of the period has already elapsed – it is disturbing that the new GECOM Chairman, retired Justice Claudette Singh has exhibited nonchalance with respect to taking key decisions. The Chair has now been in office for three weeks and the electorate is still to be told how GECOM intends to comply with the constitution. Aside from separate meetings by the chair with both sides of the Commission and a fruitless full meeting on Thursday there is no sign of compliance by GECOM.
Thursday’s meeting saw the government-appointed commissioners seeking a copy of the written ruling of CJ (ag) George on the question of the legality of house-to-house registration and the associated matters that had been raised before the court by Christopher Ram.
Government-nominated commissioner, Mr Vincent Alexander told the media after Thursday’s meeting, “The question on the way forward was not determined in the main because we are still not yet in receipt of the written ruling of the judge and there are those of us who prefer not to rely on reports and third hand information”.
The Chair should have put her foot down at this meeting, the oral ruling of CJ George was sufficient for the purpose of GECOM taking notice. GECOM is not an appellate forum for rehearing any matter and does not need to be furnished with a written ruling on the CJ’s argumentation. The Chair, given her years of experience on the bench, would be quite adept at assimilating what was delivered by the CJ.
The GECOM Chair must at the earliest opportunity explain to both sides of the commission and the country how GECOM will in good faith endeavour to meet the requirement of three months for general elections given the reality that house-to-house registration was not compulsory, continuous registration had been in play and a broadly acceptable list of electors was available for updating via claims and objections.
It should also be pointed out that there was no requirement for the Chair to even await Justice George’s ruling as GECOM could and can act in its own deliberate judgement on the way forward. It is so empowered.
A point may also arrive soon at which questions may arise about the life of the current Parliament particularly post-September 18. Speaker Scotland was kind enough to suggest that questions arising about what constituted the majority in the National Assembly for the purpose of the December 21, 2018 motion of no confidence and the eligibility of Mr Charrandass Persaud to vote be tested in a competent court of law. It may now also be an appropriate time for the Speaker himself to seek independent advice on the life of this Parliament considering that the motion of no confidence was validly approved on December 21, 2018.
It would be useful at this point to restate what the CCJ said about its expectations about the performance of the various constitutional actors. At paragraph seven of its July 12, 2019 orders, it said “Article 106 of the Constitution invests in the President and the National Assembly (and implicitly in GECOM), responsibilities that impact on the precise timing of the elections which must be held. It would not therefore be right for the Court, by the issuance of coercive orders or detailed directives, to presume to instruct these bodies on how they must act and thereby pre-empt the performance by them of their constitutional responsibilities. It is not, for example, the role of the Court to establish a date on or by which the elections must be held, or to lay down timelines and 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”.
