August 7 2019
I refer to the Stabroek News editorial of Monday, 5th August (Constitutional governance). According to the editor, there now exists a disjunction between what the constitution says (on one hand) and (on the other) what our highest court, the CCJ, says the constitution says. SN and others hold that the former should trump the latter. But this is a fake distinction. Constitution interpretation does not work that way.
All this arises in relation to the CCJ’s ruling in Section 8 that (i) notwithstanding its defeat and the resignation of the President and the Cabinet, (ii) the Government shall remain in office and (iii) “the tenure in office” of the Cabinet and the President continues (albeit on a caretaker footing). To reconcile the “defeat and resignation” stated in (i) with the survival of a functioning cabinet clearly implied at (iii), the political opposition, SN, and others have concocted the legal witchcraft that a material duality in constitutional interpretation co-exists: what the constitution clearly means and what the courts say the constitution clearly means.
But the constitution does not interpret itself. What it says is really a human intellectual endeavour. And has been long established, and correctly declared by the CCJ in section 5 of its ruling: “The judiciary interprets the constitution”. It is only that interpretation that matters. Only that that binds. Any other interpretation could only be a wish.
True, we may disagree with a court ruling. And, while SN did not so assert in this particular editorial, it has recently argued in its role as the moderator of its blog that section 8 of the CCJ ruling is “carelessly written”. But one suspects that SN and others may have found this bold contention unsatisfactory as it would still leave the ruling (and, therefore, the cabinet) intact. Hence, the attempt to falsely distinguish between what the constitution says and what our highest court says it says. No such division exists that finally matters. Only the latter carries the day. And we have to live with it until and unless we reform the constitution.
In an affidavit filed by Deputy Solicitor-General Deborah Kumar in the challenge brought by Christopher Ram against the ongoing house-to-house registration exercise, Attorney General, Basil Williams SC has made another spurious excuse for the government not abiding with constitutional strictures imposed as a result of the passage of the December 21, 2018 motion of no confidence against the government.
Dated July 31st, 2019 and released by his Chambers on August 3rd 2019, the Attorney General has argued in the affidavit that the Caribbean Court of Justice (CCJ) in its July 12, 2019 consequential order upholding the motion of no confidence “never expressly or by implication ordered the Cabinet or the President to resign.”
He swore that “The clear pronouncement of the Court is that the Government inclusive of the President and the Cabinet remains in office but on a different footing until fresh elections are held”.
The affidavit then cited the following statement by the CCJ in its July 12, 2019 order as grounds for Cabinet and the President not resigning.
“It is important, however, that the Court (CCJ) makes this point. In mandating that the Government shall remain in office notwithstanding its defeat and the resignation of the President and the Cabinet, Article 106 envisages that the tenure in office of the Cabinet, including the President, after the Government’s defeat, is on a different footing from that which existed prior to the vote of no confidence. Chancellor Cummings-Edwards, citing Hogg, the Canadian constitutional expert, was right to note that: By convention, the Government is expected to behave during this interim period as a caretaker and so restrain the exercise of its legal authority. It is this caretaker or interim role that explains the three months deadline, in the first instance, that the Article lays down, in principle, for the holding of the fresh elections”.
Referring to this paragraph, Mr Williams in his affidavit stated that the “clear pronouncement” of the Court is that the Government inclusive of the President and the Cabinet remains in office but on a different footing until new general elections are held and that the CCJ has “never expressly or by implication” ordered the Cabinet or the President to resign.
In the paragraph in question, the CCJ took pains to underline that the APNU+AFC government should now be considered to be a “caretaker government”, a reality that the government has tried hard to defy by applying terminologies such as “interim”. Any suggestion that the CCJ’s implied reference to Cabinet continuing presents the government with a lifeline should be immediately ruled out as it contradicts the very clear meaning of article 106 (6) of the Guyana Constitution which says that Cabinet, including the President, shall resign if the government is defeated by the vote of a majority of all the elected members of the National Assembly on a vote of confidence.
Anyone who paid the slightest attention to the presentations of the CCJ on June 18 and July 12 in relation to the motion of no confidence and the appointment of retired Justice Patterson as GECOM Chairman would know that the CCJ views the Guyana Constitution as sacrosanct and inviolable and the court would in no way derogate from it. One of the images seared in the consciousness of those who watched would have been the President of the court, Justice Saunders holding up a copy of the constitution to underline that it had to be adhered to.
It has been clear that since it felt hard done by the defection of one of its MPs, thereby handing the opposition a stunning victory on December 21 last year, the government will try every ploy it can think of to stay in office and defer elections particularly in light of the results of the November 12, 2018 local government polls and even if this means defiance of the constitution.
The Attorney General’s statement in the affidavit should be seen in the context of his inscribed role. He is the principal legal advisor to the government. It is ultimately President Granger who should be held fully accountable for his government’s clear defiance of the constitution requiring his and his Cabinet’s resignation and the convening of new General and Regional Elections in three months. Having been aware of the June 18, 2019 ruling of the CCJ affirming that the motion of no confidence was validly carried, it also remains President Granger’s constitutional obligation to ensure that elections are convened by September 18 or an extended date which would require the approval of the opposition. His naming of a date close to September 18 would give the Guyana Elections Commission time to begin planning for elections which the constitution already expects it to be ready for and the Commission also has access to article 162(2) which allows postponement of the election for some good reason.
By continuing to defy the constitution, President Granger and his government are further entrenching divisions in the country. While lofty affidavits may be issued in reams to the courts at every level, the President and his government have shown no intention of assuaging the concerns of nearly half of the electorate which didn’t vote for it in 2015 and who believe that new elections should have been called by a caretaker government.
In addition, President Granger’s government is prolonging the state of suspended animation that Guyana is presently in. There has not been a functioning parliament since January. Legislation and regulations for the oil and gas industry will be left in abeyance until a fully empowered government is in place. No major agreements can be concluded or policies enunciated. Relations with major partners in the international community also face a downgrading.
By defying the constitution and its clear meaning and enabling roadblocks to the new general elections that must be held, President Granger has also left the country at risk of being sanctioned for unconstitutional behaviour with the attendant consequences. There is a clear risk of that at the Commonwealth which has taken stringent steps over the years for its members to abide by the tenets of the 1991 Harare Declaration. Pressure will no doubt also build within CARICOM.
President Granger must act urgently to comply fully with the terms of articles 106(6) and 106(7) otherwise he would have further undermined the country’s democratic values and constitutional governance.