Constitutional imperatives

On July 29th in a statement welcoming the appointment of the new GECOM Chairman, the Secretary-General of the Commonwealth, Patricia Scotland QC also adverted to the larger issues that have arisen here in the aftermath of the successful December 21, 2018 motion of no-confidence against the APNU+AFC government.

The statement from the Commonwealth said:  “The Secretary-General took note of the 18 June 2019 ruling of the Caribbean Court of Justice (CCJ) and its consequential orders of 12 July 2019 and urges all stakeholders in Guyana to fully abide by these rulings and be guided by constitutional imperatives.

“The rule of law is a cornerstone of democracy.  This is also enshrined in the Commonwealth Charter and the Commonwealth Latimer House Principles.  Due observance of constitutional democracy and the rule of law in Guyana rests, in large measure, with the conduct of the various branches of government. All must be faithful to the spirit and letter of the Constitution and operate within the parameters given to each by the Constitution”.

The Secretary-General’s reference to “constitutional imperatives” and the rule of law as the “cornerstone of democracy”, is significant as it speaks to the fundamental underpinning of democratic government and the Commonwealth.

What answer can the APNU+AFC government give in relation to whether it is observing the injunction of “constitutional imperatives”? It can give none as it and President Granger continue to be in flagrant breach of the Guyana Constitution.

In his latest bid to defy the constitution which is the supreme law of the country, President Granger sought to explain to Opposition Leader Jagdeo why Cabinet would not be resigning. In his letter dated August 5th in response to one from the Opposition Leader of July 20th, the President said “I have made careful note of your request for the resignation of the Cabinet on the basis of your claim that Article 106 of the Constitution of the Cooperative Republic of Guyana requires the resignation of the Cabinet and the President.

“It is my considered opinion that the Caribbean Court of Justice did not issue orders that I should dissolve the National Assembly, fix a date for the General and Regional Elections and that I should resign from the Office of the President.

“I shall not, therefore, accede to your request”.

Aside from the fact that it took him 15 days to respond to this important missive, President Granger failed to recognise in his correspondence of August 5th  what the CCJ had ruled on July 12 in relation to the life of Cabinet. It is worth repeating this section of the CCJ’s consequential orders.

“Due observance of constitutional democracy and the rule of law in Guyana rests, in large measure, with the conduct of the various branches of government, that is, the President and the Cabinet, the Parliament and the Judiciary. All must be faithful to the spirit and letter of the Constitution and operate within the parameters given to each by the Constitution.

“Article 106(6) and (7) of the Constitution states as follows:

`106 (6) The Cabinet including the President shall resign if the Government is defeated by the vote of a majority of all the elected members of the National Assembly on a vote of confidence.

`(7) Notwithstanding its defeat, the Government shall remain in office and shall hold an election 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, and shall resign after the President takes the oath of office following the election.

“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 could not be clearer when it said article 106 “requires the resignation of the Cabinet including the President”. Adherence by President Granger to this finding of the CCJ based on the Constitution is mandatory and he has no leeway. His defiance of this constitutional stricture dangerously undermines the rule of law, the primacy of  which was referred to by the Commonwealth Secretary-General on July 29th.

Cabinet’s resignation must therefore occur in compliance with the CCJ’s ruling and the government then operates only in caretaker mode as already established by the court. Such caretaker status would have to comply with the extant jurisprudence and in this case it would ironically be the ruling of the present GECOM Chairman, Justice of Appeal (Rtd) Claudette Singh in the Esther Perreira petition where she ruled that:

“a) no legislation shall be introduced in Parliament except those required for the proper and timely holding of  fresh National and Regional Elections;

b)  no substantial contracts for the execution of public works shall be awarded without the permission of this Court;

c)  the State owned media shall only be used for elections purposes through paid advertisements”.

Thus far there has been no measurable compliance by the government with its court-ordered caretaker status. On Saturday, the Department of Public Information reported that a ministerial team had sallied forth to La Parfaite Harmonie on the West Demerara and announced that “$1.5B has been set aside by the Coalition Government to execute much-needed upgrades for La Parfaite Harmonie”.

It will not come as a surprise if the APNU+AFC government is ostracised by the international community for unconstitutional behaviour along with the implications of such. It is important that all sections of society raise their voices in support of constitutional governance.