The no confidence motion Frankenstein cannot be permitted to devour our Constitution

Mar 21, 2019 Letters

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DEAR EDITOR,

Hitherto I had restrained myself from commenting in your letters column on this No Confidence motion matter. I am aware that there is a considerable readership that wants to read my views. But I am a member of the Attorney General’s battery of Lawyers. Therefore, I conceived it right, and proper, not to comment by letter as the matter is sub judice. Not anymore. Comment I must. There is an overriding public interest that compels a lettered response to the nauseaus inciteful misconceptions of a Senior Counsel in Ralph Ramkarran’s Sunday Column “The Court of Appeal can shine a legal light on the way forward” (SN, Sunday, March 17, 2019).
Editor, with an accustomed degree of reckless disregard for constitutional intricacies, and preference for political expediencies, Mr. Ramkarran writes thus “… by the Government’s failure to fix a date for elections before March 21, the Government becomes illegal on March 22… President Granger blithely ignores the nation’s right to elections and relies on the invented veto, which he has accorded to the Elections Commission… On the morning of March 22, all Guyanese will awaken to the existence of a Government that is a usurper… HAS NO AUTHORITY OVER THE SECURITY FORCES… 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…”
Readers are entitled to be educated and made aware that there is no express wording in the constitution, which provides that the Government will be “illegal”. Nor has the Chief Justice (ag) ruled that it will be. Even the most ardent and gullible supporter of the opposition must ask Mr. Ramkarran this question: if the APNU + AFC government will be “illegal”, who then in law, and fact, will be the legal government? On the morning of March 22, can the Court of Appeal exercise some jurisdiction to impose another government to replace the supposed “illegal” one? Politicians wishing to inflame would use the word “illegal”; but for the jurist, the only issue is, whether the government will be constitutional, or unconstitutional; and that issue defies the simplicity of notions of “illegal”, and brings into sharp focus the intricacies of our Constitution. Readers here are the constitutional truth.
First and foremost, the 7th Parliament, which purported to introduce no confidence motion regime into the Constitution in 2000, some twenty (20) years AFTER the constitution had come into force on 6th October 1980, could not, and is not permitted by the Constitution, to use a less valuable or significant provision / article of the Constitution to interfere with rights and duties created by the framers / makers of the Constitution by, and in, provisions / articles that are much more valuable. Nor could the 7th Parliament by such less valuable article foist on a President, duties or limitations different from those provided by the more, or most, valuable articles. This you might think is pure common sense or constitutional logic; and it is supported by our highest judicial authority, the Caribbean Court of Justice in Cedric Richardson case (the reader would observe that I have in the interest of simple reading avoided the use of legalise such as “inconsistent” and “inconsistency”).
Second, whether deliberately, unwittingly or otherwise, Mr. Ramkarran ignores or disregards this intricacy of the attribution of differential value and writes, you might think, as if the no confidence motion carries a higher value, in the constitutional scheme of things than GECOM’s power over elections [even a power to POSTPONE a date proclaimed / appointed by the President – Article 162 (2) (a)] Not at all. And this is one of the curiosities of our Constitution. The Constitution attributes to Article 106 (the no confidence motion Article) the LEAST OR SHALLOWEST VALUE; it attributes to GECOM’s provisions the second highest level of value. And guess what readers? Stop and pause and think on this: it attributes to the PRESIDENCY THE HIGHEST OR DEEPEST LEVEL OF VALUE. This was done by protecting articles directly relating to the Presidency such as 51, 89,99 with the best and strongest security by requiring a REFERENDUM for any change or impact whatsoever on them. And what cannot be done directly cannot be done indirectly by sterile arguments about illegality of government. But Mr. Ramkarran would not tell you about such intricacy.
Third, the 7th Parliament could not by votes alone in the National Assembly (even all 65) and the President’s assent, and without also a referendum, purport to subvert, impair, dilute or water down rights or powers conferred or invested in the Presidency under Articles 89, 99. By this most valuable Article 89 itself, the President (for the time being) is the “Commander-in-Chief of the armed forces of the Republic “Only by a referendum can that power which President Granger extantly has, be interfered with. The no confidence motion carried by 33 votes is certainly NOT a referendum. On the morning of March 22, President Granger by Article 89 of the Constitution will be the Commander –in–Chief and have ABSOLUTE authority over the GDF. No amount of sterile, inflammatory, politically expedient argumentation about “illegal” can change that. (Again for simplicity of reading. I have deliberately avoided such constitutional legalise or nomenclature as entrenchment, guarantee, supremacy etc.)
Fourth, President Granger has not “invented veto” for GECOM. The Constitution itself has invested GECOM with veto power. The Nation is credibly and reliably made aware of GECOM’s is position of its practical unpreparedness or inability to conduct, now, general and regional elections. It is an open question of interpretation, on which presently there is no authoritative judicial ruling, whether postponement, or, postpone-ability of elections within Article 162, permits a President to take notice of GECOM’s publicised position of unpreparedness (a fact that can be deposed to by Affidavit) and act on that virtual certainty of a postponement, and defer appointment of a date for election. The President cannot be expected to capriciously and whimsically appoint a date no later than March 21 and face the virtual certainty of postponement, and so act in VAIN. Vanity is not excused by what the purveyors of elections now may presume to be the President’s duty. And if Courts do not act in vain, our jurisprudence cannot expect the Executive to. The law of elections is not some abstraction, nor is it to be applied as if we exist in some classic utopian void. The Constitution is not asinine as to require a President in the face of indications of unreadiness by GECOM, to appoint a date before GECOM is ready and has indicated its readiness. That is pure and simple, a necessary implication. And readers must be told (one does not expect the Ramkarrans and Rams to do so) that to ensure the impartiality and independence of GECOM, the Constitution itself (Article 226 (1) & (7) has prohibited GECOM from being directed or controlled directly by any authority (including the President). This is the constitutional truth and reality; the “invented veto” argument is misleading nonsense.
I am convinced that upon a true interpretation of the constitution, GECOM’s state of readiness is, and must be, a relevant and material consideration in the exercise of the President’s functions to appoint a date for elections and dissolve Parliament in which event the President’s legislative capacity (Article 51) ceases but his Executive capacity (Articles 89 and 99) persists and continues until a swearing in of the elected President happens. I can conceive of no reason in constitutional theory that will preclude GECOM from disclosing its incapacity. Why should such incapacity be some matter of secrecy? It is plainly delusional to expect a President to ignore such disclosure. And if GECOM by a majority decides its incapacity, it is settled law that the Courts has no jurisdiction to entertain any question as to the validity of that decision [Article 226 (6)]. Ramkarran ignores this truth.
I end with this: the Rule of law requires that the Executive, the Parliament and Judiciary alike respect and obey the Constitution. Those who, rightly, preach obedience, owes it to their congregation to tell them that like George Orwell’s “Pigs”, some provisions in the Constitution are by the Constitution itself more valuable than others. And that any interpretation that trivializes the most valuable provisions and accords to the least valuable ones more importance is self-evidently unsound and wrong. That absurdity is what Ralph Ramkarran preaches. The no confidence motion Frankenstien that he as a member of the Constitution Reform Commission helped to create in 2000, cannot be permitted to devour our Constitution; nor one of its most valuable tenets – the Presidency.

Yours,
Maxwell E. Edwards

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