While during its Congress in May the PPP removed the references to Marxism-Leninism and Socialism from its constitution, it retained democratic centralism, the organisational principle of the ruling party in communist states. When asked the reason for its retention, General Secretary Bharrat Jagdeo replied that it allowed for robust debates before decisions were come to and ensured that when these had been made by the majority they were followed by all members. That is a fairly standard explanation as it applies within a Leninist party, but in communist states robust debate prior to a decision (and in practice that did not necessarily happen, such as under Stalin) was not extended to a country as a whole. The party made the decisions, and at a national level autocracy was the order of the day.
What distinguishes the PPP from former communist states is that it has always subscribed to free and fair elections, which brings into play contradictory principles from those informing the actions of the traditional Leninist party. At the time of the PPP constitutional change Mr Jagdeo was quoted as saying, “We believe in political democracy, political and ideological pluralism … and our track record bears us out on this, and internally.” Unfortunately their record at a national level does not quite bear this out. At best when in government a tension between a commitment to democratic tenets and a leaning towards a Leninist outlook has tended to reveal itself.
One cannot avoid the impression that the PPP still sees itself as the vanguard party leading political change, which is why it is so resistant to other visions of what the development of the society should look like. It is not that they are always necessarily wrong and others right, it is more that they are not prepared to enter into any debate since they are convinced they already have found all the answers. As such they savage their critics whoever they are, and openly accuse them of being opposed to development.
Accompanying this is a distaste for autono-mous, agencies, services and institutions; Freedom House wants conformity in the society, often achieved by appointing placemen/ women in critical posts. The professionalism of the security forces, for example, is undermined through the obsession to exert political control. It is not as if this approach has improved the quality of life for those who live here, and among other things, the accessibility of funds coupled with a sparsity of watchdog agencies has allowed corruption to mushroom to new levels. But most of all, perhaps, the recent oil money has bred a certain hubris among our dominant political actors, so there is less of a sense of the need to acknowledge the legal limits of power.
This was demonstrated recently in the courtroom of all places. The PPP clearly desires to have judges, especially those in the most senior posts, who are sympathetic to its view on any given issue. It can only be concluded that it is for this reason that President Irfaan Ali in defiance of the Constitution will not make substantive appointments to the posts of Chancellor and Chief Justice, even although the Leader of the Opposition has said he would agree to the current acting incumbents being made permanent appointees.
It is a short-sighted approach, since in one of its great decisions it was a PPP/C government which took us into the CCJ. This means that any ruling on a significant issue can be appealed from our local highest court to the Caribbean court, either by a government or by an opponent. And the government can exert no political pressure on the justices who sit on the bench of the CCJ.
But it was last week that AG Anil Nandlall SC seemed to forget that under the Constitution the political executive has no authority over the local judiciary. The case concerned the enforcement of an arbitral ruling issued by the International Chamber of Commerce against Venezuelan state oil company PDVSA on behalf of Phillips Petroleum and ConocoPhillips. Justice Gino Persaud ruled, among other things, that he was satisfied on a balance of probabilities that the applicants were entitled at common law to have the arbitral award recognized and judgment entered in its favour and to have it enforced in Guyana.
It is not as if this was out of line with decisions already handed down in the UK, USA, Hong Kong, Jamaica, Trinidad, the Netherlands and Portugal. It might be noted that the first five nations listed are also, like Guyana, common law jurisdictions.
But the common law, it would appear, cuts no ice with the Attorney General who confused the demands of justice and the law with what he perceived as political imperatives. In the ruling which was seen by this newspaper, Justice Persaud took issue with his statements which represented a “veiled threat to the independence of the judiciary designed to intimidate the court”. He expressed disagreement with the “public policy” argument advanced by the AG as being misconceived, stating: “The Respondents submitted to, participated in and were represented throughout the arbitration and the arbitral award was delivered to the parties on 2nd August, 2019. The Respondents were ordered to be served by me of these Enforce-ment Proceedings and having been satisfied that they were properly served the Respondents opted not to contest these proceedings.”
But the most problematic sections in the AG’s submissions, said the Judge, were found in paragraphs 69 and 71, where it was said that if Justice Persaud were to recognise the award it would be “wholly offensive and expose the Court in the minds of the Guyanese people to allegations of unpatriotic and anti-nationalist conduct …” The Judge said that this was more suited to an elections campaign than a sound legal argument for the court, and should have been withdrawn.
He is undoubtedly correct; it is utterly unacceptable that the country’s chief legal officer should deem a Justice discharging his duty under the law as being ‘unpatriotic’. The AG has not just disgraced himself, he has disgraced the government he represents and by extension, the nation. His statement should certainly be withdrawn. Surely he does not believe that the government’s writ is now so all-enveloping that it can afford to try and bully the courts which are constitutionally independent? If he does, then we have stepped over the line from the rule of law in a supposedly democratic polity, into arrangements which have taken on an autocratic tenor. What do his party and government have to say about this?
It might be asked what stimulated this outburst from Mr Nandlall. It seems it is connected to the fact that as we reported, the 2024 budget showed that Guyana owed PDVSA around US$84 million for oil supplied on concessional terms during the Chavez/Maduro governments. Repayment of this sum could now be subject to the arbitral ruling. Unfortunately for the AG, even non-lawyers will recognize that while regrettable, it is a consideration extraneous to the legal issues which Justice Persaud was called upon to decide. Of all people, Mr Nandlall should recognise the distinction.
“The AG is not the legal guardian of the minds of the Guyanese people,” wrote Justice Persaud. Indeed.