The implication of the CCJs consequential orders for business in - - PDF document

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The implication of the CCJ’s consequential orders for business in Guyana

A presentation by Mohabir A. Nandlall MP, Attorney-at-Law at an American Chamber Guyana (AmCham) event at the Guyana Marriott 5th August 2019

It is now recognised as a fundamental truth that there is an inexorable causal nexus between the rule of law and economic and social progress in any given society. A most peripheral glance around the globe will result in the ineluctable conclusion that nations which subscribe to the rule of law and whose legal system is strong, independent, competent and respected, are the nations that are flourishing economically and in turn, socially. Therefore, it can hardly be disputed that obeisance to the rule of law is a sine qua non

• f development.

The rule of law is a multi-dimensional concept. But a strong, independent judiciary whose decisions bind those to whom they relate, constitutional compliance, adherence to the doctrine of separation of powers, respect for the inalienable basic human rights

• f the citizenry and a culture of respect for the laws of the land

generally, are all indispensable ingredients of that aggregated concept commonly referred to as ‘the rule of law’. One famous Indian jurist, V.G Ramachandran views the rule of law as “the cornerstone

• f civilized life itself…the last bulwark of a state is its courts of justice.

In the free world of today, wherever responsible governments exist, concept of special respect to seats of justice, attended with punishment in the case of contumacious behaviour, prevails.” A No-Confidence Motion (NCM) is a permanent fixture in the democratic architecture of constitutions the world over. The first NCM in recorded English history was passed in the House of Commons against Her Majesty’s Government nearly 250 years ago. When Britain granted independence to its over 50-odd colonies, it inserted in their constitutional instruments, drafted at Westminster, a power in their parliaments to pass a NCM against their sitting Governments with the uniform consequences being that the

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Government would have lost the support of the people and must return to the electorate within a time specified, either for a renewal

• f its mandate, or for a new Government to take its place.

My research informs me that NCMs were passed in India, Canada, the United Kingdom, in several African countries, Australia and of course, right here in the Caribbean. In its over 250 years, of parliamentary democracy, there is no recorded instance where a Government has refused to abide by the constitutional consequences

• f a NCM being passed, until on December 21st, 2018 in the

Cooperative Republic of Guyana, South America. An unenviable distinction indeed. Articles 106 (6) and 106 (7) of the Guyana Constitution are expressed in language whose simplicity and clarity can hardly be disputed by the rational mind. It reads thus, 106 (6)- “The Cabinet including the President shall resign if the Government is defeated by the vote of a majority of all the elected members of the National Assembly on a vote of confidence.” 106 (7)- “Notwithstanding its defeat, 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

• f office following the election.”

Despite their clarity and simplicity, these two constitutional provisions have violently lacerated the mental psyche of this nation for the past eight months. Only last Friday, no other than the Attorney General of the land argues before the Chief Justice that there is no need for Cabinet to resign. It does not require the acumen

• f a genius to conclude that it is this type of extraordinary legal advice

that the Government receives which results in me speaking to you this evening. It is now a fact of public notoriety that the NCM was passed since December 21, 2018 and accordingly, Articles 106 (6) and 106 (7) was immediately triggered. To every rational mind, the Government was defeated, the Cabinet inclusive of the President was

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required to resign, a date for elections was required to be fixed within three months thereof and the Government was to remain in Office with limited powers until a new President is elected. As I said, those consequences were clear to every rational mind but not those in the Government. They took the unprecedented move of returning to the Speaker to ask him to reconsider the vote. Naturally, he refused to do so; for he had no authority to do so. In contumacious defiance and in willful disobedience to the clear language of the constitution, they ran to the judiciary for respite. The Honourable Chief Justice rejected them; Her Honour upheld the validity of the NCM and ruled that Cabinet inclusive of the President was resigned on December 21, 2018 and the other prescriptions

• utlined in Article 106 (6) and 106 (7) of the Constitution, must be

carried out. The Government obdurately refused to comply with the Chief Justice’s ruling and launched appeals against it. They were able to persuade the Court of Appeal in a 2:1 judgement that 33 votes did not constitute a majority of the 65 members of the National Assembly and therefore the No-Confidence Motion was not carried. Naturally, the matters culminated at the Caribbean Court of Justice, the nation’s apex court. That court had no difficulty whatsoever, in dismantling and rejecting every legal contention which they advanced and ruled that the NCM was validly passed. By this time, GECOM was added as a party in clear recognition of its role in the holding of the elections which Article 106 (7) mandates. The CCJ delivered its judgement on June 18, 2019. One June 12, 2019, the then Chairman of GECOM whose appointment was also being challenged at the CCJ, and the decision of that case was also fixed for June 18, decided to issue an order to commence House to House registration. This process, by GECOM’s own work plan, was scheduled to last some 120 days. From its conclusion, its work plan says that it will take another 119 days before a list of electors can be extracted and prepared, thereby, effectively putting the possible holding of an election until June 2020. No one can convince me that this process was not embarked upon to intentionally frustrate and undermine any judgement the CCJ was going to render on June 18.

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Similarly, no one can convince me that this decision of GECOM was not taken to carry out the directives of the Government. So you have GECOM, a creature of the constitution, which is subservient to the constitution and most naturally bound by the orders of every court including the apex court, taking a decision that not only flouts the clear language and spirit of the constitution but a decision that was also intent to defeat and disobey the decision of the highest court of the country. On June 18, when the court delivered its decision, it invited the parties to make submissions in terms of what consequential orders it should make. On July 12, the CCJ issued the following consequential orders:

• 1. …
• 5. The National Assembly properly passed a motion of no

confidence in the Government on 21 December 2018;

• 6. Upon the passage of this motion of no confidence in the

Government, the clear provisions of Article 106 immediately became engaged. Quotes from the ruling ▪ The judiciary interprets the Constitution. But, as we intimated in

• ur earlier judgment, these particular provisions require no gloss
• n the part of the Court in order to render them intelligible and
• workable. Their meaning is clear and it is the responsibility of

constitutional actors in Guyana to honour them. Upon the passage of a vote of no confidence, the Article requires the resignation of the Cabinet including the President. The Article goes on to state, among other things, that notwithstanding such resignation, the Government shall remain in office and that an election shall be held “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 …” The Guyana Elections Commission (“GECOM”) has the responsibility to conduct that election and GECOM too must abide by the provisions of the Constitution.

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▪ Given the passage of the no confidence motion on 21 December 2018, a general election should have been held in Guyana by 21 March 2019 unless a two thirds majority in the National Assembly had resolved to extend that period. The National Assembly is yet to extend the period. The filing of the court proceedings in January challenging the validity of the no confidence vote effectively placed matters on pause, but this Court rendered its decision on 18 June 2019. There is no appeal from that judgment. ▪ Article 106 of the Constitution invests in the President and the National Assembly (and implicitly in GECOM), responsibilities that impact on the precise timing of the elections which must be

• held. It would not therefore be right for the Court, by the issuance
• f coercive orders or detailed directives, to presume to instruct

these bodies on how they must act and thereby pre-empt the performance by them of their constitutional responsibilities. It is not, for example, the role of the Court to establish a date on or by which the elections must be held, or to lay down timelines and deadlines that, in principle, are the preserve of political actors guided by constitutional imperatives. The Court must assume that these bodies and personages will exercise their responsibilities with integrity and in keeping with the unambiguous provisions of the Constitution bearing in mind that the no confidence motion was validly passed as long ago as 21 December 2018. Notwithstanding these crystally clear pronouncements from the highest Court in the land, Cabinet is yet to resign and the learned Attorney General said that the Cabinet does not have to resign; the President has not yet dissolved Parliament and has not yet fixed a date for elections. Meanwhile, GECOM is proceeding merrily with a house to house registration process that will put possible elections until mid-2020 earliest. The only Opposition party in Parliament has signaled an intention not to return to the National Assembly to extend the life of the Parliament and has called on its supporters to boycott the house to house registration process. I must point out that the house to house registration process is in itself illegal, insofar as it seeks to scrap the existing database and creating of a new one

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which the law does not permit. A natural corollary of this illegal process is that it will result in tens of thousands of Guyanese, who are already registered being taken off the list, if they are not caught by the current process, thereby denying them their constitutional right to vote through no fault of theirs. Significantly, persons can only be removed from the national register on grounds stated in the National Registration Act for e.g death, insanity etc. In short, the State of Guyana is precariously perched on the precipice

• f a constitutional crisis. After September 18, the Government will

lose its constitutional right to govern and Guyana will become no longer under constitutional rule but under tyrannical rule. This will sound the death knell of the rule of law. Logically, the economic and social progress which the rule of law guarantees will certainly dissipate. The downward slide has already

• begun. I will make reference to empirical data in due course to

support this contention. But it is important that I digress momentarily, to make the point that the consequential orders of the CCJ must not be viewed in isolation in respect of the abrogation of the rule of law and constitutional defiance on the part of the

• Government. It is simply the culmination of almost four years of

flagrant disregard for the constitution and the rule of law by the

• Government. In my writings over the past four years, I have detailed
• them. They all concatenate in the creation of an environment not

conducive to economic and commercial activities and in the creation

• f an atmosphere, most debilitating for business and investors’

confidence. No prudent investor will invest in a country where the Government is unlawful, where the Government disobeys the constitution and the laws of the land and disregards its own courts’ decisions. Those are all manifestations

• f

a political culture

• f

intolerance, authoritarianism, lack of democracy and a society where private capital, investments and private property are unsafe and insecure. As I said above, this toxic political climate has already begun to negatively affect economic activities across this land. From all indications, the situation will only get progressively worse. Not

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surprisingly, the Caribbean Development Bank, earlier this year issue this ominous warning that “While Guyana is on the verge of a sharp increase in economic growth, its prospects depend on ending political uncertainty.” In similar vein, the Georgetown Chamber of Commerce has publicly disclosed that a survey that it did showed a sharp decline in business and commerce since the NCM was passed. The Private Sector Commission has repeatedly complained of the devastating impacts, the political climate has had on the business community and in particular, investors’ confidence since the passage of the NCM. Of course, these pronouncements of the realities of the commercial sector by these organisations have attracted the wrath of the Government, and they in turn, have unleashed most impertinent attacks on these organisations, and their membership, compounding the situation even further. Currently, the Government is limping along with a caretaker status

• nly, this means that the Government cannot implement new

policies, cannot pass a budget, cannot enter into any new contracts

• f worth, cannot embark upon new projects and cannot enter into

new international treaties. At the national level, the Government is the largest spender in the local economy. With its current limitations, it can only spend in relation to routine goods and services. This is a significant blow to economic activities locally. Tens of thousands depend upon projects and contracts from the Government for their

• livelihood. The Government cannot executes these contracts in its

current state. Naturally, no new investors will come because the government cannot enter into lawful contracts with them. Internationally, it is arguable whether the Government can effectively represent the State of Guyana at international fora, having regard to its current limitation. The sum total of all of this, is that economic activities and social progress are slowly grinding to a halt. I must emphasize that all of this are taking place while the Government still enjoys some degree of legitimacy. This flimsy constitutional lingerie of legality will be ripped off on September 18

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and the Government will become completely denuded of any form of constitutional and legal attire. After that, the ship that is Guyana, will then drift into unchartered waters where none is the wiser in relation to what that eventuality holds. Certainly, we will be joining that inglorious group of nations ostracized by and from the free world

• f nations.

I hear some arguing that the doctrine of necessity can come to our

• rescue. I reject that proposition as wholly without merit. The doctrine
• f necessity can only be properly activated when there has been an

intervention

• f

an event unforeseen, unpredictable and

• unpreventable. It cannot and will not apply, where the Executive

willfully violates the verdict of its own legislature, intentionally tramples upon its own constitution and deliberately disobeys its own judiciary, thereby catapulting the nation into a constitutional crisis. For if the doctrine of necessity can be invoked in such circumstances, it would have been the refuge of every tyrant who refuses to call elections when they become lawfully due and then utilizes the doctrine of necessity to remain in Government ad infinitum. In conclusion, the consequential orders of the CCJ created for those who were not hitherto convinced, an opportunity to see the true nature of this Government and its authoritarian tendencies. Speaking for myself, I have been highlighting them for years, both in the media and via the legal system. I have been able to secure court

• rders declaring the President’s revocation of over 50 leases to rice

farmers, as unconstitutional and a deprivation of their private

• property. I have been able to secure from the courts, declarations

that the President’s instructions to the Police Service Commission and the Public Service Commission not to promote officers, as

• unconstitutional. The ruling of the CCJ quashing the unilateral

appointment of James Patterson by the President as Chairman of GECOM as being unconstitutional is still fresh in our minds. As I speak, there is no Judicial Service Commission appointed since August last year, in clear violation of the Constitution. So there can be no new judges appointed or promoted or new magistrates appointed or promoted.

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I have written about the President inviting former Chairman of the Public Service Commission, Mr. Carvil Duncan to resign. I have also highlighted the President instructing the Public Security Minister to send a Commissioner of Police on administrative leave, again a grievous violation of the constitution. I can go on but I think that I have put before you, sufficient empirical examples of constitutional violations by the most supreme executive officer of this land. These actions strike at the very foundation of the rule of law and constitutional governance and as I begun, I will close, whenever the rule of law is subjected to such multiple and felonious assaults in any society, economic prosperity and social progress are absent. So it is not the consequential orders which are affecting the business climate in Guyana, it is those who brazenly and with impunity, continue to refuse to execute and comply with them.