OPINION: THE CCJ’s IMPENDING RULINGS

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By: Mohabir Anil Nandlall, MP 

Attorney-at-Law

On Tuesday, June 18, 2019, the Caribbean Court of Justice (CCJ) will deliver landmark rulings in the appeals emanating from the legal challenges filed against the No-Confidence Motion passed by Guyana’s National Assembly on December 21, 2018 and a challenge filed against the appointment of Justice James Patterson as the Chairman of the Guyana Elections commission (GECOM).

These litigations have placed within the province of Guyana’s Judiciary, the very foundation of Guyana’s constitutional and electoral democracy. Sitting at the summit of the nation’s judicial hierarchical structure, the CCJ has the final say. This, it will do on June 18 from the seat of the Court in Port of Spain, Trinidad and Tobago. The lawyers involved are invited to receive the decisions via SKYPE at the Guyana Court of Appeal, Kingston, Georgetown. The CCJ has informed via its website, that the proceedings will be streamed live, so that the world can view.

Through these appeals, the CCJ is afforded the unprecedented opportunity to pronounce, inter alia, upon the strength of the supremacy of Guyana’s Constitution and the efficacy of numerous mechanisms and devices that inhere in the Constitution, as checks and balances against Executive power conceived and designed by the framers of the Constitution to exact greater accountable, responsible and democratic government.

The adversarial system of litigation which Guyana’s legal process embraces facilitated a dichotomized presentation of legal arguments, with one side in the litigation, challenging the legality and viscosity of these safeguards and the other side, asserting their effect, vigor and impregnability. Sitting at the apex, as adjudicator, the CCJ will ultimately determine the extent and fortification of those facets of Guyana’s constitutional and democratic polity.

For example, after these rulings, we will know the true nature of the constitutional supremacy doctrine; we will know whether, a No-Confidence Motion does, or does not exist in Guyana’s National Assembly; if it does, the impact and consequence of its successful passage and how and when is it successfully passed; whether defects in the qualifications of a member of the Assembly can affect its potency; whether GECOM is the master of, or subordinate to, the Constitution; and whether the President can capriciously reject nominees submitted to him by the Leader of the Opposition for the appointment of a chairman of GECOM and instead, unilaterally appoint one of his own choosing. In short, the CCJ will ultimately determine, as my erudite colleague, Kamal Ramkarran puts it, whether the Constitution of Guyana is merely a piece of paper.

I know first-hand, that the CCJ cannot say that there was a paucity of legal submissions, for legal submissions preponderated ad nauseam, ranging from the reasoned to the ridiculous and up until merely a few days before notices were received of the date of the rulings.

The importance of these rulings reverberates beyond territorial Guyana. Not surprisingly, the litigations have captured the attention of the entire Caribbean, North America, Europe and indeed, wherever Guyanese are domiciled.

In the Caribbean, it has been the subject of commentary of the media, politicians, academics and laymen alike. Its importance to democratic norms and constitutional rule in the Region has been repeatedly underscored in opinion pieces published by media outlets throughout the Caribbean. Further, I am aware, that it is already the subject of articles and analysis currently being undertaken in academic circles not only in the Caribbean, but at universities in the United States of America and the United Kingdom.

I have highlighted on a number of previous occasions that the mechanism of a ‘No-Confidence Motion’ exists as a common feature in Westminster-styled constitutions throughout the English Commonwealth. Once successfully passed, its consequences are immutable. The Government against which it is passed, is defeated and must resign. Regaining the confidence of the electorate at general elections to be held contemporaneously becomes mandatory. This position obtained long before the advent of the concept of a ‘written constitution’ in the British Empire. It was birthed in the mid-17th century in England, where no written constitution exists until now. It was bequeathed by Her Majesty’s Government to her former colonies in their Independence Constitutions and has become an innate part of their constitutional democracies.

Since Independence, the Union of India has witnessed over 50 No-Confidence Motions in its provincial Houses of Assembly and the Lok Sabha. The Parliament of the Dominion of Canada passed three over the last two decades. In the Caribbean, I recall one being passed in Barbados against Prime Minister Erskine Sandiford and quite recently, one was moved in St. Kitts and Nevis but was defeated. In over 250 years of recorded history, in none of the instances where the motion was passed, has the impugned Government reacted in the manner in which the Coalition Government of Guyana did. This has certainly contributed significantly in titillating interests, expectations and anxieties alike, in relation to the impending rulings.

Additionally, commentators have expressed the view that these cases are a test for the Court itself and the rulings can have an impact on its future, if not its very survival.

Modern constitutional purists and protagonists view the Constitution, not as an inanimate instrument but as an organic, living organism. Those who are charged with interpreting it, are admonished against an interpretation that is pedantic, sterile and legalistic and are encouraged to employ one that is liberal, purposive, expansive rather than restrictive and one that breathes life into the language of the Constitution, in order to decipher the true intent of its framers. The CCJ itself, has embraced this enlightened approach. In the case of Cedric Richardson vs the Attorney General of Guyana, it discarded volumes of technical legal doctrines and dogmas and ruled that the clear intent of Guyana’s Parliament was to prohibit an Executive President who completed two successive terms in Office, from being elected a third time.

Expectations are high that the Court will adopt a similar jurisprudential interpretative lens in construing the provisions of the Constitution that are the focus of the appeals. The true test lies in how far the Court will be prepared to go in its consequential orders, in giving effect to the intent of the framers of the Constitution, once it finds that the Constitution has been violated. In this regard, early elections is the prize. The time by which they were to be held has long gone. Within the timeframe, one must insert the appointment of a chairman of GECOM, for it is impractical for elections to be held without a chairman. Hopefully, the consequential orders will embrace these various tenets.

All we can now do is wait for Tuesday.