The President’s position is flawed!

Jun 15, 2020 Features / Columnists, Peeping Tom

The President is being misadvised if it is his position that he can declare a state of emergency in order to reconvene parliament should the elections be scrapped. If this is the advice he has received, it is incurably flawed.
States of emergency are usually declared in times of war or where there is a grave threat to public order. The declaration of a state of emergency is not intended to be used to extend the life of a government since this would amount to extra-constitutional rule.
The Constitution of Guyana contemplates the possibility of a state of emergency arising during the interval between the prorogation or adjournment of parliament and the holding of elections. It makes provision for limiting the period of such emergencies without the approval of parliament
The Constitution does not contemplate the declaration of a state of emergency as a means to reconvening parliament. Article 70(5) indicates what happen should a state of emergency arise in the interval between the prorogation of parliament and elections. It states that parliament may be summoned but the elections have to go ahead. It does not give a licence to declaring a state of emergency simply because a constitutional crisis exists.
If that were the case then tyranny would have its way. Governments could simply declare states of emergency and recall parliament after it would have lawfully be prorogued. And governments would also be able to eschew elections by simply declaring states of emergency.
In 1990, there was no state of emergency. Parliament had been lawfully prorogued in preparation for elections. The elections could not have been held that year because of problems with the Voters’ List. As such, after parliament was prorogued, it had to be recalled since the elections could not have been held.
The doctrine of necessity was used for this purpose. A constitutional amendment had to be passed to facilitate the extension of the life of the National Assembly. Both parties had to agree so that the requisite majority could have been obtained to allow for the passage of the constitutional amendment.
Parliament was dissolved last December. Elections were held on 2nd March.
Therefore, there is no interval between this and the holding of elections. A state of emergency cannot be concocted for this purpose since the Constitution presumes the emergency necessitates the summoning of parliament and not the summoning of parliament necessitating the proclamation of a state of emergency.
All this talk about the declaration of a state of emergency should the elections be scrapped, is speculative. The Guyana Elections Commission is required to declare the results of elections. It has no power to annul, invalidate or vitiate any election. This power resides exclusively with the High Court. For the Elections Commission to attempt to annul or invalidate the elections would amount to a usurpation of the powers of the Court.
Any challenge to the validity of an election has to be done by way of an election petition. This is explicitly provided for in the Constitution, the country’s highest law. Article 163(1) so mandates. It gives exclusive jurisdiction to the High Court to determine whether any election has been lawfully conducted or its results affected by any act of commission or omission.
An election petition presupposes a declaration being made. An election petition was filed following the declaration of results of the 1997 elections. Esther Perreira filed an election petition challenging the validity of the 1997 elections.
The elections were vitiated on the grounds that the use of a voter identification card was unconstitutional. The judge in her consequential orders ruled that the government of the day should continue in office NOT by virtue of the vitiated elections but by virtue of the Order of the Court.
That decision has two implications. The first is that it is the Court which has the exclusive jurisdiction to vitiate, annul or invalidate an elections, not the Elections Commission. The second is that any continuation in office, until the holding of fresh elections arises by virtue of the Order of the Court and not by Executive decree, including that of the declaration of a state of emergency.
(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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