Dear Editor,
The constitutional travails precipitated by the actions and or omissions of the Executive since the 21st December 2018, has catapulted the nation state of Guyana to, one of the most novel positions attained by no other in the world over the past 60 years. That we are engulfed in a constitutional crisis is axiomatic. That the crisis deepens every day is a reality.
Guyana’s legal order and governmental super structure are set out in its Constitution, which declares itself to be supreme and at the zenith of all national institutions.
This constitutional defiance of the No-Confidence Motion commenced by litigation instituted by the Government challenging its validity. These challenges were thrown out by the Chief Justice (ag), who ruled that the No-Confidence Motion was lawfully passed. In the course of a reasoned judgement, Her Honour made the following fundamental finding:
“I therefore find that Cabinet is not required to resign with all convenient speed, as the resignation under art 106(6) takes immediate effect following the defeat of the Government on a vote of confidence by a majority of all elected members of the National Assembly. In this case, Cabinet must be taken to have resigned with effect from the evening of December 21, 2018, and all functions or duties provided in any law to be performed specifically by Cabinet must have ceased from that time.” (Read this excerpt more than once.)
It is common knowledge that this litigation spiraled all the way to the Caribbean Court of Justice (CCJ), where that Court made its final pronouncement on the 12th July 2019. In that eight months hiatus, that is, from the 21st December 2018 to the 12th July 2019, the President and his Government not only callously and brazenly refused to comply with the imperatives contained in Article 106 (6) and (7) of the Constitution and the Chief Justice’s pronouncements, but they publicly defied them by stating that the Cabinet will not resign and elections will not be held within three months.
On the 12th July 2019, the CCJ issued a number of Consequential Orders, including one that reads:
“Upon the passage of this motion of no confidence in the Government, the clear provisions of Article 106 immediately became engaged.”
One does not have to be a super intellect to comprehend that when Article 106 was triggered it means that the events outlined in that Article was kicked into motion, that is, that the Cabinet inclusive of the President (as its Chairman) shall resign (or was resigned); the Government became defeated; however, notwithstanding its defeat, it shall remain in office and shall hold an elections within three months or such longer period as the National Assembly shall by resolution supported by not less than two-thirds of the vote of all the elected members of the National Assembly shall determine and that Government shall resign after the President takes the oath of office following the elections.
This specific Consequential Order of the CCJ, quoted above, was buttressed by the following passage in their Ruling, where after quoting Article 106 (6) and (7) of the Constitution, their Honours posited:
“The judiciary interprets the Constitution. But, as we intimated in our earlier judgment, these particular provisions require no gloss on the part of the Court in order to render them intelligible and workable. Their meaning is clear and it is the responsibility of constitutional actors in Guyana to honour them. Upon the passage of a vote of no confidence, the Article requires the resignation of the Cabinet including the President.”
Unfortunately, the CCJ, in a miscalculated act of judicial restraint, omitted to deliver the coup de grâce by issuing Coercive Orders against the constitutional miscreants. Instead, they misled themselves by placing confidence in the relevant constitutional actors, the President and the Guyana Elections Commission (GECOM), trusting that they will do the right thing. These misguided sentiments were expressed thus:
“… 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.”
Another five months have elapsed since the Ruling from the CCJ but still yet, there is no compliance with the Constitution or with any judicial directions. In fact, the position has become even more egregious. Irrespective of which interpretation one uses, the timeframe fixed by Article 106 (6) and (7) of the Constitution for the holding of elections, has long expired. No extension was sought from the National Assembly and none was granted. The caretaker status, which the Government once enjoyed, is now dead. It only lasted for the three months period prior to the elections contemplated by Article 106 (7). That three months period came to an end on the 18th September 2019.
As a result, the Government’s constitutional tenure has expired. It remains in Office not with constitutional, or legal authority, but by imposition. From a legal perspective, every decision it makes, every policy implemented, every contract entered into, every appointment made and every taxpayers’ dollar spent, is illegal, unlawful and unconstitutional. However notwithstanding, the President and his Government pretend to function as normal and feign ignorance of the constitutional vacuum in which they operate.
Recently, I attempted to bring some reprieve to the situation by seeking from the constitutional Court, an Order directing Cabinet, inclusive of the President (as Chairman of Cabinet), to resign, or alternatively, an Order giving effect to the resignation of Cabinet, along with an Order restraining Cabinet from functioning. I did so from the perspective of the clear linguistic imperatives expressed in Article 106 (6) of the Constitution and the Chief Justice’s own admonition that “…Cabinet is not required to resign with all convenient speed, as the resignation under art 106(6) takes immediate effect following the defeat of the Government on a vote of confidence by a majority of all elected members of the National Assembly. In this case, Cabinet must be taken to have resigned with effect from the evening of December 21, 2018, and all functions or duties provided in any law to be performed specifically by Cabinet must have ceased from that time.” (See above)
Unfortunately, the learned Chief Justice, relying upon a singular passage in the CCJ’s Ruling, which I respectfully make bold to say that Her Honour wholly misinterpreted, categorized my Application as an abuse of process and dismissed same with punitive costs. An appeal has already been filed.
I am confident that I will be absolved in time.
Yours faithfully,
Anil Nandlall
