To presume to order the President to dissolve the National Assembly, in my view, is disrespectful

Jun 30, 2019 Letters

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DEAR EDITOR,

It is not surprising that almost everyone finds article 106(6) of the constitution which states that “The Cabinet including the President shall resign if the Government is defeated by the vote of a majority of all the elected members of the National Assembly on a vote of confidence” to be clear and definitive. What is surprising is that those very persons cannot find the same clarity in article 106(7) which makes the following three (3) simple, and clear, assertions:
1) Notwithstanding its defeat, the Government shall remain in office and shall resign after the President is sworn in following the next election;
2) The Government shall hold an election within 3 months; OR
3) 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 a later date for elections.
It is not clear exactly why there should be an issue, confusion or misrepresentation regarding the tenure or remit of the government and why the CCJ considered that the no confidence motion rendered the government “no more” or a “caretaker government” and had left the country “in limbo”. President of the Caribbean Court of Justice, Justice Adrian Saunders, in handing down the Court’s decision on June 18 thought it prudent and necessary to state that the Court was not involved in politics and that its remit was solely to uphold the constitution. I confess to being easily confused by the difference between politics and law for I find no references in the constitution to support the Justices’ contention, only the Opposition Leader’s demand, that the government is ended or restricted in any way. Actually, there are several constitutional references, including 106(7) which suggest that this is not the case including Article which 92 states that, “a person assuming the office of President in accordance with the provisions of this Constitution shall, unless his or her office becomes vacant under article 178, continue in office until the person elected to the office of President at the next election held under article 91 assumes office”. In fact, Justice Wit seems to acknowledge that the positions adopted by the CCJ are not expressly stated but that this is implied and this is the case in many constitutions around the world.
I believe that this misconception is at the root of the current constitutional confusion. Guyana’s constitution is not similar to many constitutions around the world, it may even be singular and unique. The Constitution of the Co-operative Republic of Guyana is a combination of Republican and Westminster-style constitutions; it combines the offices of Head of State and Head of Government in an Executive Presidency (article 89) with specific processes for his removal (articles 93 & 94) and for a vacancy in the office of the Presidency (article95) none of which is contemplated in article 106 (6).
I am concerned that Article 106(6), which is located in the section dealing with the Cabinet, is being used as a decapitation strike on the Presidency, Cabinet and Parliament which are the “supreme organs of democratic power in Guyana” (article 50). It is being viewed as the preeminent article of the Constitution and that other articles of the Constitution are subordinated to it. In calling for the resignation of the Cabinet, including the President, following the passage of a no confidence motion it seems to be demanding the dismissal of the President (Head of State, Commander in Chief of the armed forces and Supreme Executive Authority), without cause or process, and without due care to maintain and uphold the Office of the Presidency of Guyana. This sub-article, which is one sentence, and 32 words, long is, in my view, constitutional malware aimed at disrupting, destabilizing and even, destroying, the state and the argument that this represents the will of the people, expressed through their representatives, is nonsensical. In most political systems the passage of a no confidence motion signifies that the government has lost the ability to govern because of a lack of support in parliament which is not the case here as the government retains the majority support it always had.
With regards to the demand for elections within 3 months, CCJ Justices Saunders and Wit have expressed the view that GECOM should always be in a state of readiness, in the event of snap elections as occasioned by the passage of a no confidence motion. Again, this seems to be a misunderstanding of the Guyanese constitutional, political or administrative reality. GECOM has not the permanent staff, equipment, materials and supplies to adequately prepare for, and administer, credible elections within three months; their acquisition has to be planned for and GECOM has advised that elections cannot be held within three (3) months. It is also not realistic to expect that the citizenry and other parties desirous of participating in the electoral process, to be in a state of perpetual readiness. As I understand it, preparations for transparent and credible elections would require the following actions, some of which may be conducted concurrently but cannot altogether be completed within 3 months, even without a process of house-house registration:
1) Public education campaign (registration/election);
2) advertising for, and training of, temporary staff (registration/election);
3) training of trainers and acquiring training materials (registration/election);
4) establishing registration/election offices and acquiring materials for conduct of registration / election;
5) period for registration;
6) fingerprint verification process and ID card production and distribution; and
7) period for political parties desirous of contesting the elections to comply with statutory requirements.
Under these circumstances there seems to be no necessity, based on the constitution, for the CCJ to issue coercive orders against the state, as demanded by the Opposition Leader, directing the President to dissolve parliament and to set a date for elections. Article 106 (7) recognizes the ability and responsibility of parliament to determine a later date for elections if elections cannot be held within 3 months. To presume to order the President to dissolve the National Assembly, which is his prerogative, is, in my view, disrespectful of the office of the Presidency, and a denial of the authority and responsibility of the National Assembly to resolve an issue which is within its remit and of its own making.
Sincerely
Oscar Dolphin

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