Dear Editor,
In a letter by Andrew Pollard SC published on 28 August in Stabroek News, he expressed considerable dismay with the sentiments of Ralph Ramkarran in his Conversation Tree column on 25 August that the Carib-bean Court of Justice (“the CCJ”) failed Guyana in its decision in the recent no confidence cases.
Mr Pollard SC believes that the CCJ did its job in interpreting the Constitution and leaving the political actors to display maturity. But this contention ignores the fact that judges are not oracles who tell us what the law is in the expectation that we will interpret their pronouncements as we see fit, like those who visited Delphi did.
Courts exist to do justice and they are expected to make orders that will provide effective remedies to the problems raised in litigation. Telling complainants to behave themselves is more suitably left for errant primary school children. It has no place in constitutional litigation of public importance going to the heart of democracy and the governance of a country.
It is the duty of every court to protect the instruments of democracy from being violated and courts do that by intervening and making orders. It can no longer be said that the only function of the court is to interpret the law.
Courts everywhere must act to ensure that governments conform to the rule of law and to objectively identified principles of democracy. In a different era, no doubt justified as a matter of national security, state action sent Jews to concentration camps for execution and outlawed the African National Congress and jailed its leaders and members to assist Apartheid.
If such things were ever to happen again, it would be clearly inappropriate in this era for any court anywhere to say that the constitutional or other actors had to determine what measures national security required and that it would not intervene. Where then should the line be drawn between interpretation and intervention when serious unresolved issues need resolution?
In Guyana, it is an unambiguous fact that article 106 of the Constitution has been openly violated for eight months and a week. There has been no resignation of Cabinet and there have been no elections. As far as I recall, no precise date, whether reasonable or not, has ever been put forward on which elections can be held for an extension to be considered. It is also an unambiguous fact that the violation of the Constitution has not been fixed by our highest court.
While the CCJ said in its decision that the meaning of article 106 is clear and that it is the responsibility of the constitutional actors in Guyana to honour its provisions, the parties went to court because those clear provisions were not being honoured and, three-quarters of a year after the no confidence motion passed, those provisions are still not being honoured.
The CCJ need only have found that Parliament was deemed dissolved when it decided that the no confidence motion was validly passed. This was possible because the three-month period for holding elections passed without extension and the Constitution, having defined a specific time frame which can be extended, does not provide that there can be an extension after that period expires.
With a dissolved Parliament, the time for holding elections would have been known by everyone but the exact date for elections would still be fixed by the President in accordance with his constitutional mandate.
But that’s not what the CCJ decided and, although it’s been more than a month since its second judgment when it made orders, article 106 of the Constitution, which I once thought was our supreme law, is still being ignored with no end in sight.
Mr Pollard SC believes that, although the CCJ elucidated the clear provisions of the law which it said needed no gloss but went no further, we should be happy with its decision and give it the utmost respect because it is our highest court.
But isn’t it the job of that and every other court to make orders solving the problems raised in cases? Should we ignore the continuing violation of the Constitution and instead congratulate the court on its fine blue robes?
Judicial decisions, especially those of the highest court, should be subject to greater rather than less public scrutiny, contrary to Mr Pollard SC’s assertions. Being a court of the highest intellectual distinction, and secure in that knowledge, the CCJ would welcome such scrutiny.
Yours faithfully,
Kamal Ramkarran
