With 72 hours to go, it is still possible in the national interest for the President and the Opposition Leader to agree to convene a sitting of the National Assembly in order to avoid the looming constitutional crisis and a blow to democracy now staring at us.
Last week, Bloomberg News reported that the European Union (EU) has increased the list of blacklisted countries from five to 15 as part of its efforts to fight `opaque practices that facilitate tax avoidance by multinationals and individuals’. According to the EU, these countries either failed to deliver on their commitments to comply with required good governance criteria or did not commit to do so at all. Seven of these countries are from the Caribbean: Aruba, Barbados, Belize, Bermuda, Dominica, Trinidad and Tobago, and U.S. Virgin Islands. Earlier, the EU was unable to reach an agreement on the list of countries deemed to be money-laundering hotspots.
In this article, we continue our coverage of events that took place within the last week or so in relation to the vote of no confidence in the Government and preparations for elections.
Three Days to Go before Deadline Expires
With three days left for the deadline for holding elections following the 21 December 2018 vote of no confidence in the Government, we can now conclusively rule out that elections could be held before Thursday. This will result in a major constitutional violation attributable to the gridlock between the Government and Opposition-nominated the Commissioners as to the readiness of the Commission, fueled by the refusal of the Government to recognize the ruling of the Speaker and the Chief Justice. In order to break the deadlock, the GECOM Chairman voted with the Government-nominated Commissioners to proceed with its workplan for 2019 which involves the conduct of house-to-house registration of voters. Given that this exercise would take at least nine months, in all probability elections will not take place this year, thereby negating the effects of the vote of no confidence, a position that the Government appears very much comfortable with.
We had stated on previous occasions that the Constitution mandates that GECOM always be in a state of readiness to hold elections within three months. In this regard, a date within the deadline set by Article 106(7) could have been announced immediately after the vote of no confidence was passed. As the date for the elections approaches, if GECOM finds itself unable to conduct the elections, the date could be extended as provided for by Article 162(2):
If the Commission is satisfied that holding elections on the appointed day is likely to pose a danger or create serious hardships, it may, after consultations with the Prime Minister and the Opposition Leader, postpone the holding of the elections to a date specified in a notice in the Gazette.
The other option could be to extend the three-month deadline for holding elections, with the approval of two-thirds of all the elected members of the National Assembly as also provided for by Article 106(7). With 72 hours to go, it is still possible in the national interest for the President and the Opposition to agree to convene a sitting of the National Assembly in order to avoid the looming constitutional crisis and a blow to democracy now staring us.
Second Statement by Civil Society Representatives
In our 18 February 2019 column, we had referred to a statement from civil society representatives urging the Opposition Leader and the President to meet urgently to bring an end to the stalemate over the holding of general elections. The statement added that while their members would like to see compliance with the Constitution, a reasonable compromise can be worked out through
extending the deadline to ensure adequate preparations are made for such elections.
Last week, the representatives issued another statement indicating that the President’s deferral of responsibility to the Guyana Elections Commission (GECOM) for naming a date for elections, has no constitutional support and is therefore unacceptable. They expressed the view that this action ‘revives the misgivings and insecurities generated by the controversial selection of the current Chair of a polarized GECOM who now has a casting vote on when elections will be held’, adding that the Constitution mandates the Commission to always be in a state of readiness to hold elections within three months. Referring to the President’s decision to ask GECOM to go back to the ‘drawing board’ to resolve their differences, the representatives argued that, since the Commission comprises persons chosen by the two major parties, this action appeared intended more to evade than resolve the issue that the two political leaders could not resolve.
Further Comments from the Diplomatic Community
The United Nations (UN) and the European Union (EU) offices in Guyana had issued separate statements regarding the vote of no confidence vote and the holding of elections. The UN stated that the Chief Justice’s ruling demonstrates the independence and integrity of the Judiciary in protecting the Constitution and upholding the rule of law; and Speaker’s earlier validation of the process of the controversial voting in the National Assembly is testimony of the integrity of the legislative arm of the State. It expressed the hope that the Executive arm of the State would demonstrate its integrity and respect for the Constitution and the Judiciary that constitute the foundation for the rule of law.
Similarly, the EU called on all concerned bodies and stakeholders to uphold the Constitution, and to respect democratic procedures and the rule of law; welcomed the expeditious handling of the court cases; hoped that the further legal process could be expedited; and looked forward to free and fair elections being held in line with all constitutional provisions.
Last week, the British High Commissioner added his voice by referring to the supremacy of the Constitution and the requirement for elections to be held within three months. He considered that the only way to resolve the issue is through consensus among the political leaders. And at the presentation of her credentials, the new U.S. Ambassador stated that the United States continues to ‘encourage genuinely free and fair elections, freedom of speech, multi-party representation, and a constitutional judiciary process…’.
Filing of Private Criminal Charges
Civil Engineer and activist, Marcel Gaskin filed private criminal charges against the GECOM Chairman and the three coalition-appointed commissioners for violating the Constitution, resulting in a failure to hold general elections within three months of the passing of the vote of no confidence. The court dismissed the charges as lacking in merit.
Hearing of Appeal Against Chief Justice Ruling
In presenting oral arguments against the Chief Justice’s ruling, the Attorney General stated that, should the court uphold her ruling that the President and the Cabinet should resign immediately after a vote of no confidence is passed, this would result in devastating consequences for the smooth running of the country. He stated that the use of the term ‘immediately’ is nowhere used the Article 106(6) of the Constitution; and the Chief Justice failed to consider Article 106(7) in her ruling. That article calls for: (i) the Government to remain in office and hold elections within three months or such longer period as the National Assembly by resolution determines and supported by two-thirds of all the elected members of the Assembly; and (ii) the Government to resign after a new President is sworn in.
The other issue of contention, not raised by the Attorney General, is whether a distinction exists between the Government on the one hand, and the President and the Cabinet on the other. One would hope that the court will provide the necessary guidance on this issue. If the court rules that a distinction does exist, then the President and the Cabinet should have resigned on the eve of 21 December 2019, but it is not clear whether the Cabinet’s resignation implies that the concerned Ministers cease to function as Ministers. If this is the case, the Government would have had to be run by the non-Cabinet Ministers and the various Permanent Secretaries until elections are held.
The Attorney General further argued that the Cabinet has to approve of spending and payment of salaries, among others, and therefore if it has to resign, the smooth running of the Government would be adversely affected. However, it is Parliament that approves of spending in the form of Appropriation Acts and not the Cabinet. The 2019 Budget has already been approved, and GECOM received its full allocation of $5.4 billion since January 2019. Of this amount, some $3 billion has been earmarked for house-to-house registration of voters. In a previous column, we had stated this latter amount (or a portion of it) could be reallocated to conduct the elections since GECOM has the authority under the Article 222A of the Constitution to do so. Besides, if additional funds are needed, in the absence of a Parliament, the Minister is vested with the authority to provide such funds by way of advances from the Contingencies Fund. At the very next sitting on the Assembly, the advances can be cleared via Supplementary Estimates.
The President’s Address
In his address to the nation last Saturday, the President stated that there is no cause for alarm or anxiety and stressed the need to ensure that credible elections are held as soon as possible. He further stated that with the advice of GECOM as well as support of the Opposition in the Assembly, he would be able to proclaim a date for the elections.
The President indicated that he had written GECOM again requesting the submission of a workplan. He emphasized that public trust in GECOM and confidence in its ability to deliver credible and timely elections, will be enhanced by greater consensus within the commission itself. He further stated that the walk-outs of meetings by Opposition-nominated Commissioners have been “disruptive, dilatory and counterproductive to the agreement of a ‘work plan’ that could assure the nation of the Commission’s ability to hold credible elections within the shortest time possible”.
The President insisted that the government is committed to supporting the rule of law and respect for civil rights, the Constitution and the independence of the institutions of the State. He further stated that in order to proclaim a date for the elections, he relies on the Commission’s readiness; the provision of funds; the expansion of time to conduct credible elections; the outcome of legal challenges by the Court of Appeal; and public confidence in the institutions responsible for executing these processes. He then demanded political cooperation, not confrontation.
President’s Invitation to the Opposition Leader
Last week, we had stated that the three parties involved – the President, the Opposition Leader and GECOM – in all sincerity and with the public interest at heart, should have a face-to-face meeting in a final attempt to agree on a position as to the way forward. In this regard, the President is reported to have invited the Opposition Leader to a joint meeting with GECOM. The Opposition Leader, however, declined the invitation. Earlier he had contended that the President has treated the issue of no confidence in the Government in bad faith; is abdicating his responsibility for proclaiming a date for elections; and is shifting the responsibility on GECOM to declaring its readiness first.
Final Appeal to Our Political Leaders
With three days left before the deadline expires for the holding of elections, we make a final and urgent appeal to the President and the Opposition Leader to convene a sitting of the National Assembly before Thursday with a view to extending the deadline for holding elections as prescribed by Article 106(7) of the Constitution. The Constitution is the supreme law of the land which both leaders have taken an oath of office to uphold and defend. The failure to do so will be a betrayal of trust, and a significant setback for our democracy, rule of law, governance, and accountability to the citizens of this country.
