‘Due observance of constitutional democracy and the rule of law in Guyana rests, in large measure, with the conduct of the various branches of government, that is, the President and the Cabinet, the Parliament and the Judiciary. All must be faithful to the spirit and letter of the Constitution and operate within the parameters given to each by the Constitution. … It is not, for example, the role of the Court to establish a date on or by which the elections must be held, or to lay down timelines and deadlines that, in principle, are the preserve of political actors guided by constitutional imperatives’ ([2019] CCJ 14 (AJ).
The Constitution, then, has two components: the ‘spirit’ and the ‘letter,’ both of which must be skillfully combined to deliver an authentic interpretation. Most of what we have been hearing in relations to the timing of elections and the ongoing house-to-house registration process focus upon the ‘letter’ of the Constitution, so let us attempt here to account for both the ‘spirit’ and the ‘letter.’ We know what the written Constitution is, but what constitutes its ‘spirit’ and how should it be accounted for?
“The challenge of constitutional adjudication is to make sense of a document that the polity cannot readily amend and that interpreters must apply many years—often centuries—after its adoption. … When the Court purports to enforce the freestanding ‘spirit’ of the Constitution … it ignores the reach and limits that constitution makers bargained for when they negotiated the specific ‘letter’ of the law (https://jmp.princeton.edu/events/letter-and-spirit-constitution). Simply put, ‘One was voted on, the other is an ethereal shifting nothingness as to who ever is making the decision’ (https://www.quora.com/What-is-the-difference-between-the-letter-and-the-spirit-of-constitution).
However, five levels of constitutional interpretations have developed that makes this appeal to the ‘spirit’ of the law somewhat more stable. Judges consider the written law and structure of the constitution; the intention of those who drafted, proposed and voted for the document or any specific provision in question; judicial precedents; social, political and economic consequences of alternative interpretations, and rarely these days, natural law (http://law2.umkc.edu/faculty /projects/ftrials/conlaw/interp.html).
Please remember that there were many – supposedly learned counsel included – who absurdly held that in the appointment of the chairperson of the Guyana Elections Commission (GECOM), the president was obliged to accept the list – even the first and only list – unilaterally constructed by the leader of the opposition regardless of whom he consulted! On the other side of this silliness, the court in Guyana gave the president the authority to make unilateral decisions! Whatever the various sides wanted us to believe the Carter formula meant, if justice and fairness were being sought, neither of the above could be the case. The CCJ, in appealing to the ‘spirit’ of the law, interpreted the process as one of discourse and compromise between the protagonists to arrive upon a chairperson in whom they both have a sufficient level of faith.
The CCJ recognised that the no confidence motion was validly passed and elections should have been held within three months of its passing, but that due to the lengthy court drama that followed, the three month deadline was held in abeyance and should begin again from the day of its final decision, i.e., 14/07/2019. It did not, however, set any specific date but advised that the politicians should together consider the ‘constitutional imperatives’ and arrive at a compromise much as they did in relation to the new chair of GECOM.
The first ‘constitutional imperative’ of any state is the maintenance of peace and security. Indeed, so important is this that the first modern social contract theorist, Thomas Hobbs (1588–1679), was prepared to have the citizenry ruled by a Leviathan to achieve these goals. The more philosophical Chapter II – Principles and Bases of the Political, Economic and Social Systems – of Guyana’s Constitution states: ‘Sovereignty belongs to the people, who exercise it through their representatives and the democratic organs established by or under this Constitution. … The right to form political parties and their freedom of action are guaranteed. Political parties must respect the principles of national sovereignty and of democracy.’ The most important principle of a liberal democratic state is the existence of a political system for choosing and replacing governments through free and fair elections. Generally, unfair elections are morally reprehensible and since they could and do lead to social upheaval they undermine the very existence of the state.
Where elections are close, as in Guyana, a small amount of fraud could make a substantial difference. So when one of the largest political parties, with demonstrably serious social reach is claiming that the elections are unlikely to be fair because the electoral list is bloated in favour of its rival: what is to be done? Just as it would have been unjust to allow the coalition to unilaterally choose the chairperson of GECOM, it would be similarly unfair to dismiss the government concerns and furthermore, risk post elections disaster based upon some very questionable interpretations of the Constitution about the timing of elections.
A few have been attempting to find solace in the recent statement the CEO of GECOM made to the press but if anything, that statement suggested that the list might indeed be bloated! “Speaking with reporters yesterday at the High Court, Lowenfield reiterated that claims and objections ‘always has and always will’ be a means by which a list of electors can be ‘refreshed.’ He stressed that ‘If a claims and objections exercise is to be used, then [the recently expired voters’ list] will form the basis of a preliminary list for claims and objections exercise to be held.’” The CEO is here simply stating the obvious. If GECOM decides upon a claims and objections process, the previous list could be used. But he never ventured to say that the list was not bloated. Indeed, he suggested that it maybe but by what amount he does not know! “… the CEO also clarified that he never advised President David Granger that the now expired list was “bloated” with approximately 200,000 extra names. Though he declined to get into the ‘numbers game’ he stressed that ‘I will want to do an exercise to determine that amount and that exercise can be done (‘Lowenfield says claims and objections remains option for refreshing voters’ list:’ SN: 24/07/2019)!’”
The PPP/C is now in a very hard place. Not wanting the electoral list interfered with in any substantial manner it has rejected the consensual approach ordered by the CCJ. For example, in partnership with the coalition it established a legitimate GECOM in which it claims it has faith to deliver free and fair elections. Yet it now wants to curtail the commission’s capacity to deliver those elections by suggesting that it will not facilitate the extension of the parliamentary period if that is what the commission believes is necessary to deliver free and fair elections. In other words, notwithstanding the existence of a legitimate GECOM, the PPP/C is either saying that based upon its structural constitutional location, i.e, essentially the letter of the constitution, and its interpretation of the situation, it could unilaterally determine the path to free or fair elections!
I understand the PPP/C predicament: it does not want to give GECOM administrative space to make a decision in favour of house-to-house registration. However, on my reading, if the PPP/C or the government refuse to do what GECOM decides is necessary to deliver free and fair elections, they will be undermining the consensual approach ordered by the Court and breaking with the Constitution of Guyana.
