The CCJ has ruled on the constitutionality of actions by the other two branches of government. First, it found an action by the head of the executive—the unilateral appointment of the GECOM chair– to be in breach of the constitution. Second, it ruled that an act of the legislature—the passage of a No Confidence motion– was not in breach of the constitution.
In both cases the CCJ disagreed with at least one of the lower courts. It should also be noted that since in both cases the constitution was not explicit, all three courts have had to interpret what the framers meant. This latter point is quite instructive going forward.
Constitutions by their very nature tend to be short on expressed powers—those that are clearly stated in the constitution—and long on implied powers—those that are not clearly stated. It is for that reason that Judicial Review—the power of the court to review actions to determine whether they are in line with the constitution—is critical.
I always felt that those who called for the instant resignation of the government following the No Confidence Vote (NCV) last December were in effect seeking to deny the government the right to Judicial Review. Judicial Review is not a delaying tactic; it is an important pillar of the judicial process. Can it be utilised as a delaying tactic—of course it can. But that is not a reason to bypass it in instances where the constitution is not clear on the matter at hand.
One of the problems I had with one side of the discourse on the NCV—it talked about the law and the constitution as if they were abstract constructs that had little to do with the politics and the society. They demanded that the government resign instantly and failure to do so made the rulers the enemy of the rule of law. Those demands ignored the complex politics of our society.
Toppling a government via a NCV is not a straightforward issue. Faced with the threat of a NCV, the PPP closed down parliament and continued in office. It denied the constitutional right to debate the motion. The Coalition allowed the debate and the vote and when it lost, it resorted to Judicial Review. Both sides used the mechanisms at hand to delay the process. But the Coalition was demonised even by the PPP which only a few years ago employed the same tactics.
The second observation I wish to make is that the legal and constitutional process should not be discussed as abstractions—they are not. Judicial outcomes have political consequences. What do I mean? I was taken to task by a comrade for saying that the rulings represented a big victory for the PPP and a severe defeat for the Coalition.
My comrade retorted—“it was a victory for the rule of law.” Both of us were correct, but I felt that he completely ignored the political aspect of what occurred. The Rule of Law is not simply a “feel good” slogan to throw around as a form of triumphalism as the PPP is doing. In the end, the notion of the rule of law and constitutionalism risk being hijacked for narrow partisan purposes.
The CCJ, however, seems to be cognizant of this problem when it asked the two sides to marry “principle with practicality.” I read the court to be saying that while the constitution clearly states the timeline for elections following a NCV, consideration must be given to other factors that impact the process. I would be surprised if the CCJ knowingly orders an election within the stipulated timeline that could lead to disenfranchisement of citizens and/or threaten the political stability of a fragile political environment.
But this is what the PPP and some others are asking the court to do. For them, that is what is meant by the rule of law. Maybe that is what it abstractly means. But for me, the rule of law is not an abstraction—it must marry the law with the situation at hand and the nature of the society in which it operates. The rule of law should not, for example, be weaponised in ways that could lead to the disenfranchisement of some citizens and aid the potential for political conflict.
The courts have done their job. Now it’s time for the politicians to do theirs. But if the sole intent is to only reach for solutions that would overtly aid the parties’ chances of winning the next election, the efforts of the courts to mediate would be rendered useless.
For there to be any sensible solution to this impasse, the PPP needs to stop hiding behind the constitution’s timeline and the Coalition should stop hiding behind GECOM’s timeline.
More of Dr. Hinds’ writings and commentaries can be found on his YouTube Channel Hinds’ Sight: Dr. David Hinds’ Guyana-Caribbean Politics and on his website www.guyanacaribbeanpolitics.news. Send comments to [email protected]
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