A lot has been said about the rule of law recently. And not just here. In the UK Prime Minister Boris Johnson has been the target of a slew of criticism for his comments that he would not ask the EU for an extension to the Brexit deadline if no deal is reached with Europe by October 19. This is despite the fact that Parliament passed a law requiring him to seek an extension after that date in the absence of an agreement. The act was intended to obviate the possibility that Britain would crash out of the European Union on October 31 by default.
How is it possible, many commentators are asking, that a British Prime Minister can effectively tell the nation that he is prepared to break the law? After all, that no one is above the law is a fundamental principle of the rule of law. It was the Brexit spokesman for the Labour Party, Keir Starmer, who reflected the sentiments of many when he described the PM’s remarks as “breathtaking.” Various ministers have tried to dance around the issue rather clumsily, but at the same time they have assured reporters that the government will obey the law. Mr Johnson, however, has not reversed himself; he has even told the EU that he will not be seeking an extension.
As is the case here, a British Prime Minister has the benefit of sophisticated legal advice. He has a solicitor-general and an attorney-general, but most of all he has the lord chancellor who on appointment swears to uphold the rule of law. The current Lord Chancellor is Robert Buckland, whose tweet on the subject of Mr Johnson’s position was reproduced by several news sites. “Speculation about my future is wide of the mark,” he wrote; “I fully support the Prime Minister and will continue to serve in his Cabinet. We have spoken over the past 24 hours regarding the importance of the Rule of Law, which I as Lord Chancellor have taken an oath to uphold.”
Given Mr Johnson’s declared intention to breach the rule of law, David Allen Green, writing in the Financial Times, described the Prime Minister as having gone “rogue”, and relayed the view of a former Chancellor, Lord Falconer, that the present incumbent should resign even if it was only a question of the PM persisting in his rhetoric after being given an ultimatum on the subject. “An intention to break the law is … a breach of the rule of law … it signals that the law is not to be taken seriously,” said Green. He went on to observe that since “the stuff of politics in a modern society is about control of the lawmaking process, a politician who disregards the law poisons the wells of democracy.”
While many British citizens might reflect ruefully on how their Prime Minister is undermining the country’s democratic framework, Guyanese are afflicted by a more profound political problem: quite simply, the well of democracy has never been uncontaminated here since at least 1968. And at the moment we are undergoing yet another of our perennial constitutional crises, which the perpetrators of that crisis perversely refuse to recognise for what it is.
Some commentators are suggesting that following all the Brexit confusion and uncertainty, the UK might have to move to a written constitution. The lesson from Guyana is that no written constitution, no matter how clearly expressed and incapable of misconstruction, will supply a guarantee that politicians will observe the rule of law. Even court rulings in this jurisdiction are bypassed by politicians. In the end, what matters is the commitment of all the political actors to abide by the law and to hold themselves accountable.
Prime Minister Boris Johnson (the problematic prorogation case and his declaration of intent aside) has not yet breached the rule of law, in contrast to President David Granger who has done so already and continues to do so. His presidential demeanour is deceiving; he has over an extended period failed to abide by the constitution, importing into it misconceived interpretations to suit his own objectives. Furthermore, his government is ignoring the conservatory orders of the CCJ, on the grounds that they did not give a time-frame for an election, to give one example. The judges indicated that they expected the constitution to be followed; they do not seem to have realised they were dealing with an administration which only follows that foundation document when it is convenient for them to do so.
The difference between the situation of Prime Minister Johnson and President Granger is that the former will certainly be forced by the courts to obey the law if he violates it, and they can if necessary require another minister to carry out what he refuses to do. Furthermore, if he did not comply with a court order where this was concerned, he could be subject to sanctions of a civil and criminal nature. Not so in the case of our head of government and state. President Granger can transgress the rule of law with impunity, and there will be no consequences in the form of legal sanctions.
It is one thing to consciously contravene the rule of law and quite another not to know what it is in the first place. But it would seem Prime Minister Moses Nagamootoo may have problems in that department. Only a few days ago the Guyana Chronicle reported him as maintaining that the APNU+AFC Government had both “de jure and de facto status”. In his weekend column in that paper he wrote, “Its legitimacy flows from the nation’s Constitution and from the overwhelming majority of our people who support it.” While the government has de facto status at the moment, it is certainly not the case that the nation’s constitution confers on it a de jure character.
He went on to aver that despite the apprehensions over “early elections’, the rights and freedoms of citizens were secured and protected. But this is the problem. In the absence of the rule of law, the rights and freedoms of citizens cannot ultimately be assured. That much at least, those who inhabit Britain’s political universe understand. If the government here is not prepared to operate by the rules where the political processes are concerned, then they cannot be trusted in any other area either, however good their intentions theoretically might be in that regard.
There is another difference between the UK and Guyana which relates to the role of the legal officers who advise the government. The nearest equivalent to the Chancellor – although he is not equivalent as such − is our Attorney-General and Minister of Legal Affairs. Whether or not there is a case to be made out for Chancellor Buckland to resign because the Prime Minister has said he would break the law, it would nevertheless be expected that he would do so should the latter carry through on his resolve. In fact, the implications of his tweet quoted above would suggest such. In any event, he has made it very clear that he has sworn to uphold the rule of law.
On this side of the Atlantic, Attorney-General Basil Williams, has by his advice, unnecessary court actions and frivolous arguments in such cases, been complicit in flouting the rule of law. And this is despite the fact that Mr Williams has sworn to uphold the constitution. President Granger has on more than one occasion taken shelter behind his AG’s advice, although it doesn’t absolve him from responsibility for what has happened. However, if the senior legal officer in the land can be so cavalier about the rule of law, there can be little expectation that the government qua government would adhere to it.
