In last week’s article, we began to highlight the key events that took place in 2019 which presented significant challenges for democracy and the rule of law in Guyana. We refer to the aftermath of the 21 December 2018 vote of no confidence in the Government. This article is a continuation from where we left off last week.
Resignation of government MPs with dual citizenship
Article 155(1)(a) of the Constitution states that ‘[n]o person shall be qualified for election as a member of the National Assembly who – (a) is, by virtue of his own act, under any acknowledgment of allegiance, obedience or adherence to a foreign power or state…’. Following the Chief Justice’s ruling on MPs holding dual citizenship, the Government announced on 2 April 2019 that four of its MPs have resigned from the Assembly, and their ministerial portfolios would be assigned to other Cabinet members. However, they would remain in Government service and assigned other responsibilities.
At that time, the Opposition had not indicated what action was taken, or would be taken, in respect of their MPs holding dual citizenship. Since the no confidence vote, it had declined participation in the four of the sittings of the Assembly held during the year, contending that the sittings were unconstitutional.
CCJ ruling on the appointment of GECOM Chair
Dr. Steve Surujbally, former Chair of GECOM, resigned with effect from on 1 March 2017. By Article 161(2) of the Constitution, the President is required to appoint a new Chair from a list of six persons, not unacceptable to him, submitted by the Leader of the Opposition after meaningful consultation with non-government political parties represented in the Assembly. However, if the Opposition Leader fails to submit such a list, the President shall appoint a person who has been a judge or is qualified to be appointed a judge.
The Opposition Leader submitted a list of six names on three separate occasions on 21 December 2016, 2 May 2017 and 25 August 2017. However, in each case the President found the list to be unacceptable. On 19 October 2017, the President proceeded to appoint Justice (Ret’d) James Patterson as the new Chair of GECOM without any consultation with the Opposition Leader. Mr. Patterson’s name was not in any of the three lists. This action prompted the Opposition to seek intervention of the courts on the ground that Mr. Patterson’s appointment violated the above constitutional requirement. The High Court, however, ruled that the appointment was in order. The matter found its way to the CCJ.
On 8 May 2019, the CCJ heard oral arguments from both sides. Justice Saunders enquired about the purpose of the constitutional amendments of 2000, if the President could simply reject a list without giving reasons; and whether this action would not amount to the President again just choosing whoever he wanted as was done prior to 2000. Justice Anderson added that there should have been some form of ‘meaningful’ consultations between the President and the Opposition Leader to reach an acceptable agreement. He felt that it was a tragedy for the court to be the ultimate decider on the matter.
In response to the Attorney General’s contention that the court lacked jurisdiction in the matter, the CCJ expressed the following view:
Unless specifically ousted or constrained, the court has an inherent and unfettered jurisdiction in matters relating to the interpretation of the Constitution. It is the court that authoritatively settles what the Constitution means and whether some action that is taken by a constitutional actor is within or outside that actor’s constitutional remit…Where legitimate questions are raised by a citizen that the appointment of the Chairman of GECOM may not have been in accordance with the imperatives of the Constitution, the court is free to have resort to its inherent jurisdiction and should not turn away the person who poses such questions. Democracy and the rule of law are nourished by both the posing of such questions and the court’s answers to them. (Paragraph 14)
On 18 June 2018, the CCJ ruled that, given the imposition on the Leader of the Opposition of criteria that were not sanctioned by the Constitution and the absence of cogent reasons for deeming unacceptable the candidates and lists provided, the process that was followed in the appointment of Justice Patterson was flawed and in breach of Article 161(2).
CCJ ruling on the no confidence vote
Following the Court of Appeal ruling of 22 March 2019 on the no confidence vote, the Opposition filed an appeal to the CCJ. During the period 9 -10 May 2019, the CCJ heard arguments from both sides. The Government lawyers argued that an absolute majority was needed for the no confidence vote to succeed and that 33 out of 65 does not constitute such a majority. Jamaican Prof. Errol Miller considered the suggestion that 34 out of 65 being the majority, as having represented ‘new electoral mathematics’ that has far-reaching implications for the Caribbean and further afield.
Suffice it to state that a simple majority requires more than 50 percent of the votes of members present and voting. On the other hand, an absolute majority is more than 50 percent of the total membership of the legislature. Therefore, where number of votes cast equals the total membership of the legislature, there is no difference in numbers between a simple majority and an absolute majority.
Justice Saunders remarked that ‘[n]o one is doubting that an absolute majority is required in this case. The only issue is: what constitutes an absolute majority?’ Justice Wit expressed an interest in hearing the deeper meaning of the requirement to have 34 votes to ‘send the Government home’ but only 33 to ‘govern’. Justice Anderson asserted that the President, Opposition Leader and the courts must obey the Constitution, and if the motion was validly passed, elections ought to have been held within three months. He expressed concern that the local courts did not act expeditiously to enable the constitutional requirements to be followed.
In relation to the contention that an MP is obliged to support his/her party’s position in the Assembly, lawyers for the Opposition argued that if this were so, the Government would always obtain the majority on a vote of no confidence. To this, Justice Saunders interjected: ‘If you have to vote for your party, voting on any motion in Parliament could be a charade’.
The CCJ overturned the Court of Appeal’s ruling and re-instated that of the Chief Justice.
Consequential orders to give effect to the CCJ rulings
On 12 July 2019, the CCJ issued its consequential orders to give effect to its rulings on the appointment of the GECOM Chair and the validity of the no confidence vote. It stated that Article 106 of the Constitution provides the necessary guidance on the way forward and should be followed. The CCJ emphasized that it is not the role of the court to fix a date for elections; the said article must be followed; and it expected that the Government will continue as ‘a caretaker for the affairs of the country but that in light of its caretaker role it should be restrained in the use of its legal authority’.
As regards the appointment of GECOM Chair, the CCJ noted that Justice Patterson has since resigned and therefore it is no longer necessary for a consequential order to be issued. However, the CCJ made it clear that the appointment process of a new Chairman should be embarked upon with ‘the utmost urgency’. In this regard, it suggested that the most sensible approach before a list is submitted is that:
The Leader of the Opposition and the President must communicate with each other in good faith, and perhaps even meet to discuss, eligible candidates for the position of Chairman…The Constitution anticipates that the Leader of the Opposition and the President conduct themselves in a reasonable and responsible manner, eschew partisanship and seek the best interests of the Republic and the Guyanese people. (Paragraph 26)
Appointment of new GECOM Chair
For 19 months, the nation was made to witness the unfortunate spectacle of our two political leaders battling it out tooth and nail, each wanting to have his own way in the selection of the GECOM Chair, despite clear guidance provided by the Constitution. Following two weeks of disagreement over the interpretation of the CCJ’s consequential order, it was a great sigh of relief that the ‘gridlock’ ended. On 26 July 2019, the President appointed Ret’d Judge Claudette Singh as the new Chair of GECOM, following the submission by the Opposition Leader of a revised list candidates for the position. Justice Singh was one of the nominees.
Court ruling on house-to-house registration
Another controversy erupted over GECOM’s decision to carry out house-to-house registration of voters to replace the current list of voters. It was alleged that the list was ‘bloated’ with more than 200,000 names due to the inclusion of persons who have migrated or who have died. Additionally, persons who would have attained the age of 18 were not included. The matter found its way to courts which ruled that the registration exercise was neither unconstitutional nor illegal. However, it would be illegal to remove names from the voters’ list except in the case of death or disqualification.
In the light of this ruling, GECOM aborted the house-to-house registration exercise and decided to merge the results with the current list of voters. However, as was expected, there were tremendous difficulties in doing so, and at the time of writing GECOM was yet to resolve the problem.
Dissolution of Parliament and proclamation of date for elections
On 25 September 2019, the President announced that elections would be held on 2 March 2020 following communication he received from GECOM that the earliest that it would be in a position to conduct elections was after the end of February 2020. The President, however, did not dissolve Parliament until 30 December 2019 following the announcement by GECOM that Nomination Day would be on 10 January 2020.
Conclusion
Last year was a year when democracy and the rule of law were placed under severe strain. It took a full year to resolve the myriad of issues brought about by the no confidence vote. Our political leaders have failed us in every way by not putting the national interest ahead of narrow political interests. The failure to hold elections within three months of the no confidence vote will remain a significant blemish and a serious constitutional violation. Indeed, the challenge to the Speaker’s ruling that 33 out of 65 does not represent a majority must also be regarded as one of the most frivolous cases for which judicial review was sought.
It is our sincere hope that come 2 March 2020, citizens will be able to choose the political party that is best suited to manage the affairs of the State over the next five years by putting aside all forms of sentiments and basing their choice on a careful analysis of each party’s manifesto and past performance as applicable. Guyana’s future depends on a complete break from the past as regards the way we choose our elected representatives.
