The court has power to order Constitutional Governance

Oct 26, 2019 Letters

---

DEAR EDITOR,

In my studies of American constitutional law and in conversations with eminent lawyers around the Caribbean, it is the informed view that the court has the power to oversee and secure constitutional governance in a country. The court protects the nation against abuses. Lawyers I conversed with feel the CCJ ruled (June 18) that the government must resign if it fails to get a parliamentary extension to its term in office within the ninety days (September 18).
If citizens feel the government (ruling or governing party and or the opposition) has violated the law or constitution, they can seek redress in the court. The court has the power to compel (write of mandamus?) government to follow the constitution and hold officials in contempt (jail them) if they fail to execute the court’s order. But this only happens in democratic countries or countries with a long tradition of democracy like the white man countries or India, Sri Lanka, among a few others.
Mr. Anil Nandlall challenged the normal functioning of the government in the High Court because he feels the government has violated the constitution. He, and the Bar Association, as well as lawyers around the Caribbean region, feel that the government (meaning the President and cabinet) should resign after successful passage of a no confidence motion, as happened on December 21. The constitution clearly specifies that the government resigns but the President stays on till a new President is sworn in after elections held within ninety days after the fall of a government. The Chief Justice, in her ruling, states that the CCJ, the final court, did not order the government to resign in its decision of June 18. But such an order was inherent in its ruling when it ordered both the ruling party and opposition to follow the constitution. The CCJ quoted the relevant sections of the constitution in its ruling. In effect, in form and in substance, lawyers say, that the CCJ ordered the government to resign when it quoted the constitution.
Thus, the Chief Justice erred in her ruling when she stated that the CCJ issued no such order. The CCJ expect all parties to act in consistence (accordance) with the constitution. All public officers, bureaucrats and Ministers included, must act in accordance with the constitution. Everyone has to follow fundamental principles of law and democratic practices. If the President, PM, public officers, Ministers, MPs, act in conflict with the constitution, they would undermine democracy and the very constitution itself that they swore to uphold. If officials violate the constitution, then they render empty its contents. All acts outside of the constitution would be considered as unlawful.
It is quite true that the CCJ was supposed to give specific directions to the parties of the dispute on the no confidence motion in light of historic violations of the constitution going back to the 1960s. But the CCJ judges felt that following the constitution was specific enough and believed that the parties to the dispute would abide by the constitution. The CCJ should have told the disputants to uphold the constitution and rule of law. A specific order would have held the government so to speak (not only President and the cabinet but the opposition leader, all MPs, and all those appointed by the ruling and opposition parties) accountable to the vote of the parliament.
In the parliamentary tradition, once a no confidence vote or a vote on a budget or major piece of legislation is lost, everyone resigns and elections are held within 90 days. Not following the order of the CCJ is unlawful. One has to prevent the undermining of the rule of law; this is in the public interest. Lawyers say that no rational reasons have been given why the entire government (including the opposition) has not resigned. Extraneous reasons may not make it practical for government to resign. But those have to be stated and the court has to decide. Some contingencies and emergencies are not the subject of expressed constitutional provisions; government must be able to possess and effectuate such powers especially in emergency situations like disaster, wars, etc. But the government in remaining in office after it has been brought down by a vote is not free to do what it feels even in emergency situations; it cannot carry out new projects. Its powers are restrained.
Those who exercise power on the ruling and or on the opposition side must do so lawfully and must act in accordance with the constitution. Everyone must respect orders of the court (CCJ and lower courts) which is the guardian of constitutional compliance. The court has the power and is mandated to order the government to follow the constitution.

Yours faithfully,
Dr. Vishnu Bisram

---

---