A constitutional conundrum

Feb 08, 2019 Letters

DEAR EDITOR,

The Attorney General has filed appeals against the Chief Justice’s ruling in two of the three cases filed in relation to the No-Confidence Motion: the case filed by the AG and the case filed by Christopher Ram. The attorney-at-law for Joseph Harmon has also lodged an appeal. There is no doubt that the lawyers for Compton Reid will also appeal in due course. The Leader of the Opposition will not appeal, as he is not dissatisfied with any material aspect of the Chief Justice’s decisions.
I wish to make it emphatically clear that none of the appeals filed, nor any which may be filed, has, or will have the effect of staying the rulings made by the Honourable Chief Justice. Indeed, I maintain that the Chief Justice merely granted, what in law, is called “declarations”.
For example, her Honour declared that the No-Confidence Motion was validly passed; that Charrandass Persaud’s dual citizenship disqualified him from being elected to sit in Parliament; that notwithstanding that disqualification, his vote remain valid; that 33 votes were sufficient to pass the No-Confidence Motion; that the Cabinet “was resigned” upon the passing of the No-Confidence Motion and that the Government must remain in office, notwithstanding its defeat, and that elections must be held within three months of the date that the No-Confidence Motion was passed; and that the Government must resign when a new President is sworn-in, consequent upon those elections.
A microscopic examination of those pronouncements made by the Chief Justice will lead to the ineluctable realization that the learned Hearing Judge made no coercive or injunctive orders. In other words, no part of the rulings compelled any act to be done, or prohibited, any act from being done. Therefore, there is simply nothing to “stay”, nor conserve, nor preserve. The rulings consisted merely of declarations in respect of the status quo in accordance with interpretations placed upon the relevant constitutional provisions.
Significantly, the Constitution does not vest in the Judiciary any power, or authority, to stop that three months period for the holding of elections after a successful No-Confidence Motion, from running. In consequence, there is no Court within the hierarchical judicial structure that can lawfully make any order, which can have the impact of delaying the elections, irrespective of the circumstances.
It is not that the framers of the Constitution failed to address their minds to the eventuality of an extension of time. They certainly did so, as is reflected in Article 106 (7) of the Constitution. However, they sagaciously vested that power, not in the Judiciary, but in the Legislature, to be exercised by virtue of a two-thirds majority vote, should the circumstances warrant such an extension.
In the same mould, GECOM, the body exclusively charged by the Constitution with the holding of elections, has no discretion, and is certainly not empowered to plea a lack of readiness to hold elections, when elections are due. Under the Constitution, elections are due at any time fixed by the President by way of a Proclamation, or in cases otherwise determined by the Constitution, for example, within three months after the passage of a No-Confidence Motion. When either of these circumstances manifest itself, GECOM must be ready to hold elections. The Constitution offers no alternative.
The current state of affairs, which documents the President and his Government’s refusal to comply with the Constitution and the pronouncements of the Chief Justice, coupled with GECOM’s lack of readiness to hold elections when they are constitutionally due, have the conjoint effect of catapulting the nation’s state of the Cooperative Republic of Guyana into the realm of unconstitutionality and an anarchic existence, not witnessed in the Caribbean, perhaps, since the Grenadian “revolution” in 1983.

Mohabir Anil Nandlall, MP
Attorney-at-Law

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