The decision of the Caribbean Court of Justice (CCJ) to strike down all the APNU+AFC positions in the cases relating to the no-confidence vote (NCV) and the appointment of the chairperson of the Guyana Elections Commission (GECOM) was predictable, and its decision to give the parties space to do their political work is commendable but predictably doomed. It was good that the court, while paying homage to the separation of powers and the inappropriateness of its attempting to do the work of politicians, remained firm in its obligation to intervene when the political process is found wanting and legal remedy is required.
I hold to the popular belief that the government never expected to win the NCV case but that for whatever reason, it sought and is still seeking to delay the elections process and the added time (nearing three weeks) given to it on Monday merely plays into its hands, even if it made the court less open to accusations of radical judicial activism if it subsequently feels it needs to impose a period within which elections must be held.
Indeed, one wonders if the government would have gone to court with such enthusiasm if the parties that formed it had to foot the legal bill. There is something in the contention that once the Speaker of the National Assembly decided that the NCV was passed, the government came to an end and the legal battle became one between the opposing political parties – APNU+AFC and the PPP/C – to determine if the NCV was valid. Why should the taxpayer pay for the parties’ concerns or, if they must pay the bill for the coalition party’s legal battle to stay in government, since the opposition is an important element of constitutional government, should the state not also pay its legal bill? This is another issue for the impending constitutional reform.
That aside, had the court delved into the political history of Guyana, it would have recognised that even if the ‘happy marriage’ one of its members (Justice Wit) hoped for ‘between principle and practicality’ was on this occasion successful, it would only be a temporary reprieve, for there is a fundamental disjuncture between the main players on important principles. For the purpose of this article, I place principles into two categories: higher level principles – a belief in fairness, impartiality, integrity, honesty, etc., which form the basis of our social existence and from which all others principles are derived, and second level principles, which in the political arena have to do with the need for forbearance and restraint, majority rule, rights of the minority, politicians acting in the interest of citizens, etc. Thus majority rule is only one of the foundational values of a democratic society because it is considered the most fair, impartial and equitable manner for a community of ‘equals’ to govern themselves. It is by no means the only or the most important principle; after all, people are in society to protect their lives and live in peace and prosperity, and this must be the crowning principle that a democratic society must uphold.
All the talk about constitutionality and the time and resources being expended to receive judgments from institutions such as the CCJ is merely part of a play in which the actors only theoretically accept the basic principles of democratic living. They pay lip service but for many historical reasons they do not agree that the process and likely outcome of majority rule under the current constitutional arrangements will equitably protect all Guyanese. Indeed, the sides upon which our major political parties are derived regularly quote past and recent historical events and act in ways that make this point.
That the coalition wanted to assure its continuance in office was obvious the minute President David Granger decided that the constitution only made provision for judge-like people to be the chairperson of GECOM. A year ago, in relation to the appointment of the chairperson of GECOM, I argued that the principles of independence, impartiality and fairness are only means for attaining legitimacy and that ‘If, therefore, legitimacy is the goal, the decision that allowed one side to unilaterally choose the chairperson of the elections commission flew in the face of a tradition (the normal process of arbitration) that existed centuries before the birth of Christ and thus has already severely undermined the legitimacy of the electoral mechanism, the process and most likely the outcome’ (‘Moralising injuring the body politic’ SN: 26/06/2018). In flouting these principles ‘the president was in effect advising himself’ (SN:19/03/2019).
Many times in this column I have argued that a too literal and restricted understanding of the democratic method led the PPP/C’s government into illiberalism that has made African Guyanese and their leadership extremely wary of it and willing to do almost anything to keep it out of office. That party’s success in collapsing the government by way of a NCV only exacerbated African disgust. The resort to the courts to overcome the impact of the NCV, the foolishness that 34 was the majority of 65 and, as we speak, that 200,000 persons are wrongly on the voters list and a substantial number of young people will be disenfranchised are all parts of this ‘anything’. Perhaps not surprising in this era of fake news, there are those who are arguing that this position about the list must be taken seriously without requiring those who make these claims to provide a thread of evidence that they have merit. But in this tinder box in which we live the underlying threat is that the ‘corrupt’ list could be blamed if some party is not pleased about the results of the forthcoming elections and takes untoward political action.
Since at the practical level the major players are not agreed upon the basic principles of a democratic state that undergird the rules by which the CCJ must play, the happy marriage between principle and practicality will eventually be reached, but only after the judicial process has been milked for all it could contribute to the process of delaying the elections.
Only last week, I put the following position to former president Donald Mr. Ramotar: ‘since you seem to believe that the PPP/C can rule alone, you badly need to convince the Guyanese people that you will not again attempt to overcome our ‘them’ and ‘us’ politics by suppression or the kind of subterfuge in which the current regime is involved!’ It must be obvious to all that if we continue along the current path we are simply waiting for subterfuge to become suppression.
