Govt. should return to Parliament to extend time for holding elections – Attorney General proposes to CCJ

Jul 09, 2019 News

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In his suggestions on Consequential Orders to the Caribbean Court of Justice (CCJ), Attorney General and Minister of Legal Affairs, Basil Williams, submits that there is no doubt that elections must be held. He however noted that the state of readiness/unreadiness of the Guyana Elections Commission (GECOM) to conduct credible elections cannot be ignored.

Williams proposes that until such elections are held, the Government, including the President, Prime Minister, Ministers and Cabinet shall remain in office until a President is sworn in after elections have been held, pursuant to Article 106 (7) of the Constitution of Guyana, but only for the purpose of extending the time for the holding of elections.
In his submissions that were filed on July 01, Williams said, “The Government should convene the National Assembly to have a resolution passed in order that the time be extended for the holding of an election within the earliest time as indicated after the President has consulted with the Guyana Elections Commission. If for any reason the National Assembly does not pass the Resolution or the Resolution does not garner the requisite majority for an extension, the
President after consultation with the Guyana Elections Commission shall dissolve the National Assembly and General and Regional Elections shall be held on a date to be fixed by the President under Articles 70(2) and 61 respectively.”
Moreover, the Attorney General has maintained the need for the holding of house to house registration before General and Regional Elections are held. As it is, the Attorney General submitted that GECOM is constitutionally incapable of lawfully directing, supervising and administering the elections that are required to be held, since it is without a Chairman. Williams submitted, “The appointment of a GECOM chair is subject to a mandatory constitutional process. Until the President and the Leader of the Opposition complete that process, which is to be completed by them with dispatch, the work functioning of GECOM is affected.”
GECOM, Williams noted, has two primary functions, the registration of electors and the administration of elections. Williams said, too “There is absolutely no evidence before (the CCJ) that the officers and employees of the Secretariat of GECOM are not discharging their functions in order to ready the electoral apparatus for elections. On the contrary, the evidence strongly suggests that they are at work and that time is required for the work to be completed. The process outlined above must be completed by house to house visits. There is no doubt that all the parties accept that elections must be held. The state of readiness (or unreadiness) of GECOM to conduct credible elections cannot be ignored.”
CCJ CANNOT SET DATE FOR ELECTIONS
Continuing in his submissions, the Attorney General urged the CCJ to stay above politics. He respectfully submitted to the CCJ that it has no jurisdiction to set a date for the holding of elections in Guyana, neither does the court have the authority to dissolve parliament. According to Williams, setting a date for elections is a “quintessentially political question”. He went on to describe this as one of the most powerful tools held by a President or Prime Minister in most constitutional democracies, without fixed dates for elections.
The Attorney General recommended, “Before setting a date for elections this Court (CCJ) must ask and answer the following question: What is the best date for general and regional elections to be held in Guyana? Frankly, that question and the answer to it are political in nature and within the exclusive right and privilege of the President of Guyana.”
But the court of Guyana, Williams asserts, does not answer political questions.
“It falls exclusively to the President to decide when to dissolve Parliament. It is noteworthy that Article 106 does not provide for the dissolution of the National Assembly by operation of law if a government is defeated on a motion of confidence. It follows that notwithstanding such a defeat, the power of dissolution remains constitutionally vested with the President. There is no evidence before this Court that proves or suggests that the President will fail to discharge his constitutional duty. Consistent with the settled practice of this Court, it is to be presumed that the President will comply with the law.”
He was keen to point out that the Opposition and other appellants are seeking for the court to grant coercive orders against government. This, he says, is contrary to the basic legal principles for granting orders of mandamus. He held that the requests for coercive orders are baseless. Williams reasoned that courts have been very hesitant to issue orders of mandamus, and have exercised such jurisdiction only where a litigant has established that a public authority has breached fundamental rights or failed to comply with a duty.
In several landmark rulings delivered on June 18, the CCJ affirmed that the No-Confidence Motion was successfully passed against government in the National Assembly on December 21, 2018. The regional court also ruled that the President’s unilateral appointment of retired Judge James Patterson as Chairman of GECOM was unconstitutional.
Patterson has since resigned. On June 24, the court held a hearing to determine where the parties had reached a consensus in respect to the rulings. As there was no such consensus, the CCJ ordered the parties to file written submission on the issue by July 1. All the parties have complied. The CCJ, nonetheless, will hand down its ruling on Consequential Orders on Friday, July 12, at 14:00hrs.

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