The Caribbean Court of Justice (CCJ) has extensive powers to make the orders that had been sought in the no-confidence motion cases. Without serious justification, it declined to do so. Its ‘timid and ineffectual’ decision has intensified the constitutional chaos in Guyana. High Court cases are now being brought for orders and declarations that the CCJ ought to have made. In their absence, the Government has refused to act on the CCJ’s decision.
Mf. Andrew Pollard, writing in the Stabroek News on 28 August, pronounces the CCJ’s decision as fine and is horrified at my criticism. As a newly-minted Senior Counsel, Mr. Pollard should know that criticizing judges and courts in far sharper language than mine, is quite an accepted activity in normal countries. What is not normal is for a court that finds constitutional violations, to decline to make orders to rectify those violations, but relies instead on the ‘integrity’ of politicians. But no word from Mr. Pollard about this abject failure of the CCJ and of the Government’s continuing violations of the Constitution.
And Mr. Pollard seeks to hide behind the ridiculous red herring that I would have been satisfied if the CCJ had fixed a date for elections. No one ever made such a nonsensical suggestion – not me nor the lawyers appearing in the cases before the CCJ, because everyone knows only the President can fix a date. But had the CCJ ordered that the Cabinet must resign and that elections were due by 21 March, and it’s now up to Parliament, or by 18 September, it would have been enforcing the provisions of the Constitution which it was asked to do. That would have made all the difference. But it declined. In the result the Cabinet has refused to resign and the President has not set a date for elections. The Government’s excuse is that the CCJ made no order.
In justifying its course the CCJ said: “It would not therefore be right for the court, by the issuance of coercive orders or detailed directives, to presume to instruct these bodies on how they must act and thereby pre-empt the performance by them of their constitutional responsibilities. It is not, for example, the role of the court to establish a date on or by which elections must be held, or to lay down the timelines and guidelines that, in principle, are the preserve of political actors guided by constitutional imperatives. The court must assume that these bodies and personages will exercise their responsibilities with integrity and in keeping with the unambiguous provisions of the Constitution bearing in mind that the no confidence motion was validly passed as long ago as 21 December 2018.”
As far as can be ascertained, the court’s basis for not directing that the Cabinet must resign and not ordering the date by which the elections must be held, is contained in the following passages: “Their meaning [the provisions of the Constitution] is clear and it is the responsibility of constitutional actors in Guyana to honour them….Article 106 of the Constitution invests in the President and the National Assembly (and implicitly in Gecom), responsibilities that impact on the precise timing of the elections which must be held.”
But the “constitutional actors” did not honour the provisions of the Constitution. They failed to undertake their “constitutional responsibilities.” The date for “elections which must be held” has not been fixed. That was why the matters were in court and why the CCJ was asked to make consequential orders and directives. The flimsy reasons for the CCJ to therefore fail to direct that the Cabinet must resign and order an outside date for elections, in accordance with the Constitution, are baffling.
As to my very mild language in criticism, in 1936 Lord Atkin, one of the greatest intellects in English jurisprudence during the last century said: “Justice is not a cloistered virtue; she must be allowed to suffer scrutiny and respectful, even though outspoken, comments by ordinary men.” Lord Denning later defended the right of “outspoken comment.”
In 1968, Mr. Quintin Hogg QC, later Lord Hailsham, a Lord Chancellor, criticised the ‘unrealistic, contradictory’ and ‘erroneous’ decisions of the courts which, he said, should apologize for the trouble to which they had put the police by their decisions in interpreting certain legislation.
Professor Glanville Williams, a celebrated legal scholar, described the decision in Anderton v Ryan, 1985, as “unflattering of the higher judiciary.” He accused the judges of inventing a rule “based upon conceptual misunderstanding; of their determination to use the English language so strangely that they spoke what by normal criteria would be termed untruths; of their invincible ignorance of the mess they had made of the law.”
Criticisms of decisions of the CCJ and of courts in Guyana should be more not less, using frank and outspoken language where necessary, but always respectfully, as I did. I will do so again if the occasion arises. The Judges of the CCJ, and our own judges for that matter, are expected to understand these basic principles.
