The Court of Appeal can shine a legal light on the way forward

President Granger last Friday said that “the Government is conducting its affairs in accordance with the Constitution and with respect for the rule of law.” He sought to convince the nation that it was the Speaker of the National Assembly who directed the Government’s approach to the court and that the cooperation of the Opposition is necessary for credible elections. He created a constitutional mandate for the Elections Commission in fixing a date for elections. He reiterated that the National Assembly is competent to extend the time for holding elections. The President said that there is no cause for “alarm or anxiety.” The Office of the Leader of the Opposition issued a statement contradicting the President’s assertions point by point. The President places the burden for resolving the crisis on everyone but himself and the Government. 

Notwithstanding the President’s use of selected articles of the Constitution to justify his untenable views as to the current state of affairs, created by the Government’s failure to fix a date for elections before March 21, the Government becomes illegal on March 22. One of two things ought to have happened by March 21; namely, elections ought to have been held, or the life of the National Assembly extended. Neither occurred, despite the decision of the Chief Justice (ag) that elections have to be held in three months after December 21, the date of passage of the no-confidence motion. The Government insists that it has a right to be heard in Court and in doing so, insists that it has a right to violate the Constitution while awaiting the Court’s verdict. President Granger blithely ignores the nation’s right to elections and relies on the invented veto which he has accorded to the Elections Commission.

The President’s speech cannot stop time. On the morning of March 22, all Guyanese will awaken to the existence of a Government that is a usurper, has no right to hold office, can make no decisions affecting Guyana or Guyanese, can collect no taxes, has no authority over the security forces, can enter into no contracts, and can conduct no international discourse on behalf of Guyana. The National Assembly would have no lawful existence. Resort to the doctrine of necessity cannot apply to a situation that was deliberately created by the Government by its own acts or omissions about which it was publicly warned on countless occasions. The Government was publicly advised that it needed to implement the Chief Justice’s decisions in the absence of a stay. The Court of Appeal also refused a stay. Even up to that stage the Opposition stated that it was willing to extend the time for elections up to April 30. But the Government ignored everyone.

The Court of Appeal has heard the arguments in cases relating to the no-confidence motion passed in the National Assembly on December 21 and has reserved decision. The hearing is to continue. No doubt the decision will be given early to take cognizance of the fact that the matter is urgent, having regard to the pending constitutional no man’s land into which the Government will place Guyana on March 22.

The decision of the Court of Appeal can come before next Friday, March 22. If it does, the Court ought not to ignore the impending crisis and avoid dealing with the consequences of the failure of the Government to call elections in accordance with the Constitution and the decision of the Chief Justice (ag). The Court of Appeal may acknowledge the possibility of extending the life of the National Assembly by a two-thirds majority. But it ought not to merely acknowledge that possibility and wash its hands of the matter by ignoring the unlikelihood of it happening. It will therefore need to go further and express its view as to the consequences of the failure of achieving that objective. What happens next? If the Court of Appeal does not wish to abandon the nation to constitutional darkness, as some would say is its duty, it would have to give us the answer and appropriate guidance.

If the Court of Appeal gives its decision after March 22, it will be doing so in the circumstances outlined above, where the Government no longer has any legal status. There would be a huge gap in its decision if it does not address the absence of lawful, governmental, authority in Guyana. If the Court is of the view that as a result of the Government’s failure to hold elections within the stipulated time, it is holding office illegally, it must say so boldly and fearlessly. It cannot merely uphold the decision of the Chief Justice (ag), if it feels that her decision is sound, and walk away from the most serious constitutional crisis facing Guyana since its life began as an Independent nation in 1966. Guyana faced serious travails for decades in the era of rigged elections and authoritarian rule but the Courts were spared, except when ‘socialism’ was advanced as a legal concept to be enforced. That option no longer exists. The Court of Appeal must shine a legal light on the way forward. Of course, all this goes away if the Court rules that the majority of 65 is 34.

This column is reproduced, with
permission, from Ralph Ramkarran’s blog,
www.conversationtree.gy

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