Since the no-confidence motion (NCM) last December, the quarrel about what is and is not legal has been building in the public mind a healthy scepticism about the law. Such uncertainty is useful as it guards against the excessive dogmatism inherent in the quasi-religious nature of this type of discussion, which usually boils down to which side (usually of lawyers) one believes, and given the nature of Guyana, this heavy reliance on faith only helps to strengthen the ethnic divide.
Fortunately, the aspect of the quarrel having to do with whether the government has breached the constitution and is illegal is amenable to a more objective approach that is not heavily dependent upon what a specific law states or upon what the Caribbean Court of Justice (CCJ) may or may not have intended. The record shows what the court actually did, and we can conduct a simple analysis of the process it ordered to demonstrate that it logically leads to the following conclusions. The passing of 18 September without an extension of parliament does not mean that the present government is illegal. However, the logical operation of that very process suggests that it is close to becoming so.
Once the courts were seized of the controversy arising from the NCM their interpretations on any specific aspect of the problem became contained in and superior to the applicable written laws. When on the issue of the appointment of the chairperson of the Guyana Elections Commission (GECOM), the Chief Justice ruled that the president was entitled to make a unilateral appointment, regardless of what many of us believed, the appointment was legal until the CCJ decided that on this issue the CJ had erred. Indeed, the CCJ endorsed this position when it stated that the period within which elections were to be held after the passing of the NCM had been put on hold during the judicial process and should start again from the date of its final decision.
The CCJ would be nothing without its judgments, orders, opinions, etc. The court refused to set a specific date for elections, stating clearly that it is not ‘the role of the Court to establish a date on, or by which, the elections must be held’. Apart from limiting the activities of the government, what it did was to order the parties – the president, parliament, opposition leader – to do politics: to negotiate in the spirit and letter of the constitution and, bearing in mind the demands of the constitution, meet and reach compromise as reasonable and practical representatives acting in the interest of Guyanese.
There was some politicking and the process initiated by the CCJ is not proceeding smoothly, but even without ethnic dimensions, political negotiations can be difficult. Look for example at the British negotiations to leave the European Union or Donald Trump and the Democrats over his promised border wall. But the process is still validly proceeding and bearing fruit. A chair of GECOM has been appointed with an agenda to conduct credible elections in the shortest possible time, but the commission could not agree upon a timeframe for elections that would have enabled the government to set a date for those elections before the life of parliament expired. Opposition support was necessary if the two-thirds majority required for an extension was to be achieved, but for its own reasons, the PPP/C decided that it would not support such a change until a date for elections was announced. The blame for this vicious circle does not lie with one party.
The nature of the process the court ordered called upon the parties to attempt to reach agreement in keeping with the strictures of the existing laws but it did not make 18 September the end date of those negotiations. It did not make them superior to the process, and bearing in mind what was argued above about the superiority of legal decision- making in relation to any existing law not meeting the 18 September date does not allow one to claim that the government is unconstitutional when it is still operating within the ambit of the process outlined by the CCJ. Indeed, yesterday the British Supreme Court ruled against Prime Minister Boris Johnson in his threat to break the law: they ruled against his proroguing parliament so in Guyana’s extremely litigious environment, why has a legal remedy not been sought?
Many have argued that the CCJ should have set specific deadlines and while this might sound reasonable in theory what would that have entailed and was it practical? The court’s mandate is to extract justice from complex situations and this would not have allowed it to simply brush aside the claims of the various parties and set some arbitrary date or one simply based upon the passage of the NCM. Its task would have been to make orders that could lead to the holding of credible elections in the shortest possible time.
It would have had to become involved in doing what GECOM had to do! For example, hear, contemplate and decide upon the contentions of the various parties, including government’s claim that the elections list is severely bloated and thus open to manipulation and that the NCM was engineered to forestall the process of rectifying the list by way of house-to-house registration. It would also have had to consider the opposition position that the regime wants to suppress its votes by taking names off the list, but according to the law names cannot be taken off the list (the local courts had not decided this point as yet) and thus a claims and objections process will suffice. No one knows whose position, if any, the court would have adopted. What everyone would have been certain of was that it was prepared to delve into deep political matters and, particularly in a volatile context like Guyana, risk becoming embroiled in a situation that could have serious consequences for its very existence.
All that was to be done was not done by 18 September, but the process established by the CCJ lives on and so continues to provide legal coverage. Forbearance, toleration and compromise are at the heart of the democratic process, and perhaps the CCJ should have known that these are not traits that flourish among politicians in Guyana and so should have attempted to run the country for them! More realistically, if blame must be cast it must fall on both the government and the opposition for not being able/willing to compromise.
However, we need to look forward and now that the president has received some dates from GECOM he must be given a week or so to give a specific date for the elections. Ambassadorial and other talk is usually politically contrived but the timing is telling for if without overpowering reasons the president fails to act with sufficient urgency, he and his government alone would be legally and morally responsible for frustrating the spirit and letter of the constitution and the process established by CCJ to hold credible elections in the shortest possible time. By so behaving, a contempt of court order and all that entails should await them!
