Dear Editor,
The founding framers of Guyana’s Constitution conceived it as the fundamental, or organic, or basic law of the State and intended it, at the summit of the legal order, to prevail over every other law and indeed every other organ which aggregate to constitute the nation State of the Cooperative Republic of Guyana. This doctrine of supremacy finds expression on various platforms with its genesis deeply rooted in Article 8 of the Constitution:
8: “This Constitution is the supreme law of Guyana and, if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void.”
The Constitution itself, in its provisions, institutionalizes this supremacy. Dr. Francis Alexis, in his text “Changing Caribbean Constitutions”, elucidates thus:
“Caribbean Constitutions stipulate positive requisitions on organs of the state, Parliament is required to pass laws containing specified provisions, public authorities have to do certain things. The Constitutions impose negative prohibitions on organs of the state, Parliament is forbidden to pass laws containing certain provisions, public authorities are not allowed to take particular actions. The Constitutions in various other ways regulate the activities of organs of the state including Parliament. All such devices underscore the supremacy of Caribbean Constitutions over organs of the state, institutions of governance and other public authorities.”
In the course of His judgment, in GUYSUCO v Teemal (1983) 35 WIR 239 at 257, Chancellor R.H. Luckhoo adumbrated the proposition even more poignantly:
“Somewhere in the address of counsel for the appellants at the trial of the action there seemed to have been a contention or submission that “Cabinet’s decision was paramount”. The judge said in his judgement that he was “unaware of any such proposition, as a matter of law and no authority had been cited to support such a novel proposition”. It is, indeed, a surprising proposition, let alone novel, and happily, it was not persisted in in this court. Lest we lose sight of our country’s jurisprudence re-iterated from time to time by this court, let me state once more that it is the Constitution which is paramount and which is the supreme law of the land. The Constitution itself so declares in article 8, and everything else in Guyana is subordinate to it.”
It is against such jurisprudential mosaic that the current political matrix must be examined.
The No-Confidence Motion was passed on 21st December 2018. By the clear and unambiguous language of Articles 106(6) and (7), Cabinet, including the President, was mandated to resign and elections became due within three months thereof, unless an extension is granted by the National Assembly. The three months period has long expired and there has been no extension by the National Assembly. Litigious forays to invalidate the NCM were unsuccessful. The apex court ruled that Articles 106(6) and (7) became immediately triggered upon the passage of the NCM. Speaking to the constitutional actors enjoined by Article 106, the CCJ admonished:
“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.”
These high judicial exhortations have fallen on deaf ears. In the meanwhile, the Constitution and its doctrine of supremacy have been rendered irrelevant and irreverent. The President, nine months after the passage of the NCM, has boldly written to the Leader of the Opposition to say that he nor his cabinet will resign; neither will he dissolve Parliament, nor fix a date for elections. The President continues to adopt the constitutionally heretical posture that GECOM must indicate its “readiness” for election before he can proclaim a date. His ministerial minions continue to echo similar egregiously unconstitutional sentiments.
The nation reposed great expectations in the new Chairperson of GECOM and justifiably so because of her long career on the bench and the judicial erudition she displayed during her tenure. This “Iron Lady” once used judicial power, and I dare say properly so, to cut short the life of a democratically elected Government from five to three years, at the altar of constitutional supremacy. She struck down as unconstitutional a law which authorized the use of a voter’s identification card and courageously declared an entire elections null, void and of no effect because of the use of such an ID card, as a qualification to vote, in prosecuting the supremacy of the Constitution. She ordered fresh elections to be held within three months of her judgment. No one dared disobey her Orders. There was not a murmur of dissent from GECOM. None of the excuses being manufactured now to delay the elections, raised their heads then. The very three months period which Article 106 mandates for elections was the identical time frame granted by the “Iron Lady” for elections to be held. The electoral machinery was made “ready” in compliance with her Order an elections were held within that very three months.
Unfortunately, that fundamental premium which was properly placed on constitutional supremacy in that Esther Pereira case is now conspicuously absent. Week after week, the nation endures frustrating suspense as GECOM polemicizes and pontificates while the clock ticks and the supremacy of the Constitution, wastefully, whittles away. Currently, the contention is whether or not the data accumulated from the House to House registration should be utilized. The mere exploration of this option is in contemptuous disregard of the doctrine of constitutional supremacy. This is so because the elections are long constitutionally overdue and constitutional supremacy would dictate the shortest path legally possible to elections. Undisputedly, this path is using the list of electors, that was valid as of the 30th April 2019, duly refreshed with a suitable cycle of Claims and Objections. If the data accumulated by the House to House exercise is to be used it would push elections to April 2020. The “Iron Lady” must know this.
Instead, there is a preparedness to entertain another round of discussions with the ostensible intent of placating both sides, knowing full well that it will drive more nails into the coffin of constitutional supremacy and it will continue to deny the electorate their constitutional right to vote at elections to be held within the time frame mandated by the Constitution.
At page 26 of the judgment in the Esther Pereira case, Justice Claudette Singh issued the following firm but admirable reprimand:
“… no political party can arrogate unto itself the power to barter away or waive the constitutional right of members of the electorate. The voice of the members of the electorate to speak through the ballot cannot be silenced by arrogant agreements among political parties. Even Parliament cannot do so since the voice of the members of the electorate to speak through the ballot is a constitutional right under Article 59.”
If only the Chairperson of GECOM can render obeisance to this sagacious judicial enjoinder and end the ongoing charade, perhaps then that moribund doctrine of constitutional supremacy can be saved from virtual death.
Yours faithfully,
Anil Nandlall
