Life support cannot revive the dead

Sep 22, 2019 Peeping Tom

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Whether the Guyana Elections Commission is ready or not, we have a constitutional crisis. The Constitution demands that elections be held within three months of the passage of a no-confidence motion, unless that period is extended by a two-thirds majority of the National Assembly.
The CCJ had ruled that elections were supposed to be held by March 21, but because of the appeals filed, this placed that deadline on “pause”. The CCJ issued its consequential orders on June 18th which means that elections were supposed to be held by September 18 unless that period was extended by the National Assembly. The period was not extended.
So how does the government justify its legality, in light of these developments?
The government says that it has to remain in office until elections are held. That is correct, except that what the government is not saying is what happens if elections are not held, either within three months or ever.
Will it remain in office forever?
The government’s tenure is for three months after the “pause”. The CCJ was clear that it was the “tenure” of the government which was on a different footing, not the “nature” of the government.
One government official has hinted at the use of the doctrine of necessity. This doctrine is used sparingly, and especially in times of regime change, to justify acts which would otherwise have been deemed unconstitutional. It was an argument which was used to rule against persons charged following the invasion of Grenada, when those persons challenged the legality of the High Court.
The doctrine of necessity was invoked during the debate in the National Assembly after the parliament, which had been prorogued for elections in 1990, had to be recalled. However, the National Assembly is not a court of law; it is a court of policy. The jury is still out to determine whether the doctrine was correctly used to justify (not legitimize) the otherwise illegal acts.
The doctrine is a justification of last resort. It is employed only in relation to situations which were unforeseen and unavoidable. It is hard to see how any court can accept that the failure of the government to call elections within the period stipulated by the National Assembly could have been unavoidable or unforeseen, especially since it did not even make an attempt to debate an extension of its life.
In a letter published in the Stabroek News in March of this year, Ronald Singh argued that the conditions which were necessary to invoke the doctrine of necessity did not exist in Guyana. He outlined those conditions, as laid down by Haynes P of the Court of Appeal of Grenada in Mitchell v Director of Public Prosecutions [1986] LRC (Const) 35, 88-9 (Haynes P) as being:

i) the existence of exceptional circumstances not provided for in the Constitution, for immediate action to be taken to protect or preserve some vital function to the State;
(ii) no other course of action is reasonably available and
(iii) action is required in the interest of peace, order and good government but must not impair the rights of citizens under the Constitution.
Singh went on to quote Gates J in Prasad v Republic of Fiji [2001] NZAR 21, Gates J who stated that:
“The Constitution’s very indestructibility is part of its strength. [No man has the authority to tear up the Constitution.] The Constitution remains in place until amended by Parliament …. [and] may only be changed in accordance with that Constitution.
The Constitution provides for its own mutation. Usurpers may take over as they have in other jurisdictions, and in some cases rule for many years apparently outside of, or without the Constitution.
Eventually the original order has to be revisited, and the Constitution resurfaces….Even the Glorious Revolution must eventually be tamed by the Constitution. For the courts cannot pronounce lawfulness based simply on the will of the majority. Nor can lawfulness be accorded to the tyranny of the mob…Such tyranny lacks universal morality and the courts will not assist usurpers simply because they are numerous, powerful, or even popular.”
The AFC is now hinting that it may be moving to the National Assembly to extend its life. This is as ridiculous as it gets. You cannot extend the life of something that has ended. You cannot apply life support after death.
The life of the government had to have been extended before the deadline, because that is what the Constitution prescribes. The option of doing so always existed, but was not done. This failure renders a nullity, any resort to the doctrine of necessity.
But this is Guyana. And in Guyana all manner of arguments are found to be attractive and even plausible.

(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper)

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