Ruling of the CJ NOT Final Under Laws of Guyana

Submitted by Rickford Burke, President, Caribbean Guyana Institute for Democracy (CGID)

Guyana’s constitution is under assault. Misuse, misconstruction, misinterpretation and perversion of the supreme law dominate our political and constitutional quagmire. The court’s carte blanch approbation of the abuse, and potential criminal misuse, of the no confidence provision, as well as the potential perversion and abuse of Articles 156.3. (a) and (b) and 155. 1 (a), collapsed public confidence in the court. Wisdom, scholarly interpretation of the law and constructionist application of the intent of the framers of our constitution ought to compel the Court of Appeal and the Caribbean Court of Justice (CCJ) to reverse the ruling of Chief Justice (CJ). This will preserve public trust in the “judicial process.”    

Henceforth, the CJ’s ruling will be taught in law schools, analyzed by constitutional scholars and dissected by academicians. In his analysis of the CJ’s ruling, foremost constitutional scholar, former Justice of the CCJ, Professor Duke Pollard, delineated that it was misdirected. In an article published in the February 14, 2019 edition of the Guyana Chronicle newspaper, Justice Pollard submitted that the alleged requirement for the government to resign which the CJ affirmed, is “not consistent with the language of commitment employed by the drafters of the constitution.”

Article 106 (6) of the constitution states “The Cabinet including the President shall resign if the Government is defeated by the vote of a majority of all the elected members in the National Assembly on a vote of confidence. Article 106 (7) states that, “the Government shall remain in office and shall hold an election within three months, or such longer period as the National Assembly shall by resolution supported by not less than two-thirds of the votes of all the elected members of the National Assembly determine and shall resign after the President takes the oath of office following the election.”

Justice Pollard proffered that “Articles 106 (6) and 106 (7) “must be construed conjunctively and not disjunctively as the CJ did. The juris held that “If this is what the draftsman intended he would have said “the government shall be deemed to have resigned on the passage of the confidence motion…Clearly, the draftsman did not intend this since his intention was definitively set out in article 106 (7).”  

Justice Pollard’s submission is apposite. The likes of Ralph Ramkarran and officers of the Bar Council of the Guyana Bar Association and others, driven by cultural and political allegiance to the PPP, arrogated to themselves custodial and intellectual dominion over interpretation of the constitution. Their continual attempt to engage in this exegesis of the law  is done with unprecedented perversion. Albeit their tossed about opinions become infinitesimal amidst the scholarship of the erudite juris, Professor Pollard.        

Justice Pollard is right. At no time does the constitution contemplate governance of Guyana without  cabinet. Article 106 (1) states “There shall be a Cabinet for Guyana, which shall consist of the President, the Prime Minister, the Vice-Presidents, and such other Ministers as may be appointed to it by the President. Article 106 (2) states “The Cabinet shall aid and advise the President in the general direction and control of the Government of Guyana and shall be collectively responsible therefor to Parliament.”

Article 106 (1) was not constructed with the imposition of “subject to” Article 106 (6) and is not a subordinate provision to (106 (6). Article 106 (6) does not mandate immediate resignation of the cabinet, or such a mandate would be contradictory to Article 106 (7), which enumerates an organized process to effectuate the termination of the government prescribed in 106 (6). Entrenched in 106 (7) also is a prescription for continuity of governance and orderly transfer of power to a new President, predicated on the doctrine of necessity.

The ruling of the CJ spawns several additional contradictions on which the Court of Appeal and CCJ  will ultimately explicate. Although the CJ held that Charrandas Persaud was ineligible for election to the National Assembly, she nevertheless upheld the validity of his casting vote for the no confidence motion.  She declared that a challenge to the election of a member of the National Assembly can only be mounted through an elections petition which must be filed within 28 days of an election. She also affirmed that Article 165 (2)  validated Charrandass Persaud’s vote.

Article 156  states “The Assembly may act notwithstanding any vacancy in its membership (including any vacancy not filled when the Assembly first meets after the commencement of this Constitution or after any dissolution of Parliament) and the presence or participation of any person not entitled to be present at or to participate in the proceedings of the Assembly shall not invalidate those proceedings.”

The CCJ will have to determine if Members who are declared elected can be legitimately included among the unentitled persons contemplated in this Article 165 (2), as the CJ did. Chapter 5, Sections 50-70 of the constitution govern and regulate the election, requirements, privileges and conduct of Members, and makes not reference of Article 165 (2). Moreover, the clause shall not “invalidate those proceedings” grants validity to the procedure or conduct of business of the Assembly, rather than an act by an unentitled person. A consequence of the ruling of the CJ is that the National Assembly is henceforth proscribed from discarding the vote of a deranged persons who rushes into the Chamber and votes yes on a Bill. Such was not the intent of the framers.       

Interestingly, the predication of Article 165 (2), on which the CJ based her ruling, is the doctrine of  necessity. Therefore while the ruling seem to uphold the Charrandass’ vote out of necessity of government, it repudiated said doctrine of necessity in relation to its misconstruction of the provision of the prolongation of cabinet after defeat on a confidence motion.  Further, the CJ’s ruling vitiated the provision that the government remains in office until an election is held and a new President sworn in; a reconstruction of the provision.   

The CJ’s denial of a conservatory order staying her judgment is enigmatic and quite remarkable, as the plaintiffs sought to stay of her ruling which they prayed constituted a misinterpretation of Articles 106 (6 and (7), 156.3 (a) and (b), 155 1 (a) and 165 920, and a misinterpretation of the two-thirds majority entrenchment.  

These sub judice matters that confront the Court of Appeals and CCJ embody an extreme perversion of the constitution that threatens democracy and constitutional governance of Guyana and engenders anarchy. This is why the ruling of the CJ is not final. The Court of Appeal, then the CCJ, are final arbiters of the law. That is final!   

11 comments

  • When a Spy or a Germ gets into your Body and moves along at the point its discovered it must be removed, to keep the body intact, You do not kill the entire body. Just the Cell is removed, The Government is a BODY. One Dirty Person Shall Not Destroy an Entire Body and just needs to be Removed! The wants and needs of the Many out weights the wants and need of the One!

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  • Elected Officials Should Not Be Dual Nationals | Sir Ronald Sanders
    Caribbean360February 18, 2019

    By Sir Ronald Sanders

    BRIDGETOWN, Barbados, Monday February 18, 2019 – The law is the law and it is binding on all who dwell or visit within its jurisdiction. The law is particularly binding on those who make the law. As I observed in a previous commentary, “law makers should not be law breakers”.

    This issue is raised again in the context of persons who hold dual citizenships while seeking election – and, in some cases getting elected – to the legislative bodies of countries. Those who either seek or achieve such election violate the law of the land in countries of the Caribbean Community (CARICOM), particularly when they also hold Cabinet positions, formulating national policy.

    This matter has arisen time and again in Caribbean countries; among them: Antigua and Barbuda, Belize, Dominica, Jamaica, St Kitts Nevis and St Vincent and the Grenadines and Trinidad and Tobago where dual nationals have sought election, or have been elected, to the legislature, leading to political storms that caused them either to resign from office or withdraw as candidates for election.

    The reason for the disqualification of a dual national from eligibility to legislative bodies and Government cabinets is simple and straightforward. As University of the West Indies Law lecturer and columnist, Jefferson Cumberbatch, observed: it is “a secular version of the axiom that no man can serve two masters”.

    To become a citizen of a country other than the one in which a person is born, allegiance must be sworn to that country. But, Caribbean constitutions forbid such double allegiance in the context of election to the House of Representatives. In almost uniform language, they state: “No person shall be qualified to be elected as a member of the House of Representatives who by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign Power or State”.

    Read more: http://www.caribbean360.com/opinion/elected-officials-should-not-be-dual-nationals-sir-ronald-sanders#ixzz5fyEPUuLz

    http://www.caribbean360.com/opinion/elected-officials-should-not-be-dual-nationals-sir-ronald-sanders

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  • I agree with Sanders and I think if our Chiel Justice is a citizen of the USA,he should not be allowed to serve in that capacity.It was a mistake if that story is factual.
    As I understand it the CCJ is the final arbiter of any dispute originating in the Law Courts of the participating States.There can be no legal dispute with that.Only the political swordsman would find it worthwhile to attack.In any case every judgement is open to challenge based on new evidence.

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  • I have always contended that David Thompson should not have been elected to lead this country, based on the fact that he was born in the UK. I like the American system. If you were not born in the USA you cannot become president.

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  • @ Robert Lucas,

    Be careful. I recently raised this issue and was criticised on BU. They rather discuss Clico and the fact I said he might have made a decent prime minister. UK born, St Lucian wife, Barbados prime minister.
    Certain offices of state should be reserved for born Barbadians – Governor General, Chief Justice, Prime minister, head of the BDF and Commissioner of Police.

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  • Sir Ronald Sanders & Gabriel February 19, 2019 9:14 AM So then why Do We even have a Sir? QCs , Et Ali These are other titles from Another Nation Rules and laws that we dont even follow or even our Own,

    But Yet these crooks titles are used to subdue the People and to BOW Down as Slaves When dealing with the CROWN they are the law on to the People but not unto the People in office Holding titles …

    Talking two way all full of She-it, for Mr . Ronald Sanders has no business in the People Business, As he awaits Orders from His Queen to put more Fraud Upon the People!
    & Stop Kissing BOX-Sea

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  • Robert Lucas

    Give a valid reason why David Thompson shouldn’t have been Prime Minister of Barbados either than that he was born in England?

    And what you have stated about the American system of governance was partly true …yes today you have to be native born to occupy the office of the president and vice-president of the United States of America … But Sir Alexander Hamilton was grandfathered in though he was born in Nevis, because any foreign born person such Hamilton could have president prior of the ratification of Constitution …now go and do you our research I did mine …

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  • Robert Lucas

    The late great comedian Bob Hope came to America at the age of 4 … now don’t you think that it is a little unreasonable to prevent this man who has spent 90% of his life in America from running for the office of presidency just because he was born elsewhere?

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  • Robert Lucas

    Let me say this lastly to you … I have zero tolerance for you and Barbadians of your making who share your xenophobic attitude …

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  • I have little time for the likes of Jagdeo and his racist claptrap as evidenced by columnist Freddie Kissoon and a case before the courts of Guyana in which Jagdeo is accused of race baiting in the last election making reference to drums and killing..If I had the power and authority I would declare Jagdeo persona non grata in Barbados.The following is a reminder of the person who thinks his brand of politics is unifying and edifying.
    http://www.therealafrican.com/2017/01/u-n-body-investigating-guyanas-ex-president-crimes-humanity/?

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  • @Lexicon
    You are entitled to your opinion. I have no problem with that.

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