GECOM arguably has right to postpone elections beyond constitutionally ‘appointed’ date of March 21

Dear Editor,

We have now officially entered the final week of what some have deemed a countdown to a constitutional crisis.  Certainly, we are entering uncharted constitutional territory but I am not sure that ‘crisis’ is the best description of where we are heading vis a vis the actual provisions of the Constitution, and this largely seems to stem from deliberate misinformation.

 Article 106 speaks specifically to the establishment and dissolution of ‘The Cabinet’, as opposed to more generally Ministerial Appointments of elected members (Article 104) and appointment of Non-Elected Members as Ministers (Article 05).  It is article 106(6) and 106(7) that the Opposition Leader seems to be using to extrapolate to say that the executive government ceases to exist after March 21 or, as was the previous claim from Freedom House, it was acting illegally. 

 Article 106 (7) speaks to three things:

1) automatic election within 3 months; or

2) a longer period as sanctioned by not less than two-thirds of all the members of the National Assembly; and

3) the continuation of executive government

 The executive government and its constituent parts, the individuals that comprise it, possess in effect multiple identities and functions.  For example, Winston Jordan was, as of December 21, not one but essentially three functions and identities in one:

1) he is a Member of Cabinet;

2) he is Minister of Finance;

3) he is an APNU+AFC Member of Parliament. 

 In the former two of those roles, he is a member of the executive and in the latter he is a member of the legislature.  The successful NCM has only ended one of those roles, his status as cabinet member – it has not ended his appointment as minister of government nor his role as Member of Parliament.  In brief, his executive role has been diminished not rendered null and void, and he is still considered part of the [executive] government that continues and is expected to resign after (not before) the next elected President takes the Oath of Office.

 The Opposition Leader has signaled that he is prepared to extend the time no longer than April 30 which is when the current list of electors expires, while it is the position of the Government that a house-to-house registration process, as was originally catered for in this year’s GECOM work plan and budget is necessary for a credible process.

 GECOM’s constitutional autonomy and its specific role in determining the date of elections have come into focus recently, particularly whether the Commission has the capacity to thwart the stipulations of 106(7) and the three-month deadline.  This is where Article 162 (‘Functions of the Elections Commission’) is instructive, particularly 162 (2), which states that:

“Notwithstanding anything to the contrary in this Constitution, if the Elections Commission is satisfied that the holding of an election pursuant to paragraph (2) of article 60 or article 160 (2) on the day appointed therefor would be attended, either generally or in a particular area, by danger or serious hardship it may, after consultation with the Prime Minister and Leader of the Opposition, by notice published in the Gazette:

(a) postpone the holding of the election to a day specified in the notice; or

(b) postpone the voting in an area specified in the notice to a day so specified.”

 In plain language, not only does it not require the legislature’s sanction to postpone an election, requiring only consultation with the Prime Minister and Leader of the Opposition, but the term “[n]otwithstanding anything to the contrary in this Constitution” provides the sanction for 162(2) to [conditionally] take precedence over 106(7).  The framers of the Constitution would no doubt have included this provision to account for a broad enough array of exigent circumstances – war, social unrest, natural disaster – potentially impacting the holding of elections, and while the section speaks to bipartisan consultation with the relevant constitutional mechanism, the legislature, it does not and cannot compel GECOM as an independent constitutional body.

 Applied to the present context, if GECOM decides that a bloated list due to expire on April 30, the incapacity of the Secretariat to adequately train staff within the timeline stipulated by 106(7), and inadequate budgetary allocation to hold elections together constitute a general ‘hardship’ in conducting a credible elections, and even if there is a failure of parliamentary consensus on extension, 162(2) arguably gives the Commission the right to postpone elections beyond the constitutionally ‘appointed’ date of March 21.   Those are the technical/legal considerations as I see them.  However, at present we, more than anything else, straddle that gray area between what is morally sound and what is legally sound, with the primary consideration on both sides of the divide seeming to be what is the most politically expedient path.

 On the PPP’s part, their argument is that the administration should do the legal and honourable thing by automatically adhering to the provisions of 106(6,7), despite the fact that – attempts at rhetorical engineering notwithstanding – the NCM was effected by insidious and dishonourable, though legal, means.  Blinded by the myopia of its no doubt carefully considered calculus of triggering 106(6,7) and then bulldozing through to elections, clearly little thought was given to other factors, constitutional and otherwise, 162(2) in particular.

 On the Government’s part, without a clear and unequivocal commitment to deliberately and severely restrict its executive mandate post-March 21 and to prepare for elections within a reasonable time, it runs the risk of squandering whatever political and moral capital it gained in the wake of the scandalous NCM, capital that has already been wasted in part by the ill-conceived and reactionary legal cases challenging the legitimacy of both the nature of the majority of the NCM vote in toto and that of Persaud’s individual vote.  A resort to the Caribbean Court of Justice as final court of jurisdiction in what is a fundamentally national issue – one that speaks to perpetuation of political power beyond a constitutionally provided timeframe – would be at best a Pyrrhic victory to the party vested in the perpetuation of said power.     A few weeks ago, I had the privilege of being part of a live-streamed discussion on constitutional reform along with former Speaker of the National Assembly, Ralph Ramkarran and former Prime Minister of Trinidad and Tobago, Basdeo Panday.  During the discussion, Mr. Panday insisted that the conversation on constitutional reform in both Trinidad and Guyana needs to start at a deeper, more visceral level than the purely or primarily legal.  I am in agreement with that perspective.   We don’t have a constitutional crisis so much as we have the Constitution being the current raison de guerre in our perpetual crisis of ethno-political division.  And the only way we can solve it in the interest of some lasting peace is to examine our national constitution in what is essentially a wider, more poetic sense.  What are the best and most representative things that constitute us a nation, how do we recognize and explore our complex and multifaceted character, and only after this process – or at the very least in tandem with it – should we seek any overarching codification.

 It has become a cliché to say every election that we stand at a critical crossroad regarding our national destiny, but I believe that this time, more than any other, is representative of that crossroad.  The choice is however not between two historically warring political factions – the reality is that at this point this is more a macabre tango than it is a genuine boxing match that is playing out before us.  The choice in the upcoming months and beyond will be one between the exercise or the abdication of citizenship; whether we as citizens affirm and perpetuate the regressive status quo of adversarial-interdependent politics, or we (or at the very least a significant quantum of us) decide to recognize the potential calamity that faces us if we fail to redefine and continuously regulate the social contract, and act in concert to thwart that calamity. 

  Yours faithfully,

  Ruel Johnson

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