Should the Chancellor of the Judiciary be running our country?

Sep 29, 2019 Letters

Dear Editor,

Several constitutional lawyers and former judges who I have spoken with are of the view that the government becomes illegal and should have been run by the Chancellor of the Judiciary since September 19. If a government fails to adhere to its constitution or timeframe to hold elections, is it illegal? Is the opposition also illegal? Can a government violate its constitution and remain in office? The Caribbean Court of Justice (CCJ) should have warned the warring parties of consequences (when it issued orders on June 18) should they not adhere to the court’s generalised orders that elections be held by September 18. The parties should have come to an agreement on extension of government. Perhaps a power sharing formula until elections are held!
The Guyana constitution clearly and specifically states that elections must be held within ninety days of successful passage of a no confidence motion (NCM) unless the assembly passes a motion by two-thirds majority to extend the date. If the government fails to hold elections within the ninety-day period or get an extension beyond that, is the presidency vacant? Does the government exist? If a government does not adhere to the constitution, is it legal? Some lawyers answered in the affirmative to the above. Under such condition, does the Chancellor (head) of the Judiciary assume control of an interim government until a new President is elected and forms a government? Unlike other states, in Guyana the head of the judiciary is the Chancellor rather than the Chief Justice (CJ). Other states have the CJ as the head of the judiciary. The CCJ is the final appeal court.
In its consequential orders on the NCM, the CCJ merely repeated the clause on elections in ninety days but failed to warn the warring parties that the government ceases to exist after that. The head of the judiciary could assume control of an interim government if elections are not held within the ninety-day period.
Legal luminaries I spoke with said the Chancellor should have been running the government once the disputed parties failed to get an extension beyond September 18. The constitution also states that if the Chancellor fails (or is unwilling) to assume control of the government, the head of the armed forces should take over the government. Should the President be running the country? Should the office of the Opposition function? The government and the Opposition should meet and clarify if the Chancellor should assume control of the government. Both sides must respect the constitution. If it is accepted that their office becomes vacant, they would have been forced to come to a political agreement.
The ninety-day period for elections expired on March 21. But the government challenged the legality of the NCM all the way to the CCJ which gave its final ruling on June 18. The CCJ, Guyana’s final court, noted that there was a pause in the ninety-day rule as a result of the court challenge but that the clock resumed on June 18. It means that the ninety days expired before September 18. If the lawyers are correct, it therefore, means that the presidency and the office of opposition become vacant. The Chancellor should have assumed control of the functions of the government, thereon as interim President until fresh elections and the swearing in of a new President.
Lawyers are of the view that the CCJ should have made that point very clear. Lawyers feel it is not too late for the CCJ to meet and clarify the issue of the constitutionality of the government. Failing that, the parties to the appeal case or some public interest lawyer should approach the court to issue such an order so that there can be respect for constitutional governance. There must be consequences for any government that does not comply with its constitution. Lawyers are of the view that if the CCJ fails to issue a specific consequential order on the legality of the government, then no government in the region will respect the CCJ and governments can do as they please because they will remain in office; CCJ may as well dissolve itself and instruct the countries to return to the Privy Council. Lawyers say no country should join the CCJ unless it enforces its orders and hold governments accountable.
Yours truly,
Dr. Vishnu Bisram
Political Scientist

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