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!