Since December 21, the constitution says Guyana has a `defeated’ gov’t which is therefore a caretaker regime

Dear Editor,

Reference is made to a joint press statement issued by the Ministry of the Presidency following the recent meeting between Government and the Opposition. There seems to be a downplaying by Government of the word “defeat” as found in Article 106 (7).

That provision states: “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 elections.”

First, the provision does not address any Government. Rather, it addresses “the Government” which has suffered “its defeat.” This word “defeat,” which cannot be ignored, is the most important in all of Article 106 (7), upon which the remainder of the provision depends, and which emphasizes a fallen, restricted, or “caretaker” regime.

It is understandable that no Government wants to be defeated and a defeated Government will try to sidestep the inalienable profoundness of this word. Here, this is being done by way of legislative and judicial abuse. First Government tried to force the honourable Speaker’s hand, and now it will try to do similar injustice to a judge’s gavel.

The record shows undisputedly that on December 21, 2018 more votes were cast against Government than for it, bringing into being “its defeat.” To deem otherwise is to sidestep this word “defeat” and to change the no-confidence motion into a confidence motion.

From December 21 to date, the record has not been changed by fact or law. Thus, as a matter of law, Guyana has not just any Government but a defeated Government. Until such time if and when this changes, there exists at hand today a “caretaker” regime, so the idea that the Constitution is silent on this matter is misleading.

It is settled law in Guyana that an undefeated Government governs for 5 years and not 3 months, and does so with unlimited authority subject to the Constitution. It follows naturally that a defeated Government cannot have the same unlimited authority, and Government today cannot say “there is no provision in the Constitution which imposes limitation on the Government to perform its lawful function.”

If this is true why have a no-confidence motion mechanism? Arguably, the Constitution cannot give a legitimate but defeated regime and a legitimate undefeated regime the same panoply of authority. If this is so, then Guyana’s next legitimate regime will be one of limited authority with a 5-year term. It is illogical. 

Further, there never was any dispute that Government has no legitimacy. Indeed, calls for Government to resign emerged out of respect for its legitimacy; only a “legitimate” Government can resign. But Government’s legitimacy and time in office is severely restricted as already argued, here and elsewhere. The public is advised to be careful with this deliberate miscalibration.

Finally, the Constitution calls for new elections “within three months.” Is this going to be replaced by the overbroad new invention called the “administrative capabilities of the Guyana Elections Commission”? Is this from the Constitution?

Yours faithfully,

Rakesh Rampertab

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