There were two major decisions from the Courts of Guyana which have never been used as a precedent in any other jurisdiction. The first case was a Court of Appeal decision on a challenge brought by the then Attorney General against a High Court ruling involving the publishers of the Mirror newspaper.
It was a highly controversial decision which has had bearing on freedom of expression. It forced the temporary closure of the Mirror newspaper and a contraction of the publication.
The decision by the learned judge in that appeal has never stood the test of time. It involved a principle as to what is essential for freedom of expression. The then Court of Appeal had ruled that the right to import newsprint was not an essential part of the freedom of expression.
At that time, there was no Caribbean Court of Justice (CCJ). As such, there was no higher Court to appeal to. But even lower courts have never invoked that decision.
The second decision was issued in the challenges which were brought to the validity of the 1997 elections. Those elections were vitiated, not because of the irregularities which were adduced by the plaintiffs, but because of the use of a voter identification card which the Court deemed to be unconstitutional.
There were about five or six grounds which the then Chairman of the Guyana Elections Commission, Doodnauth Singh, had said he would challenge in appeal. He did not get the chance because a decision was taken by GECOM, after he had resigned, not to appeal the decision. And it is not clear whether the PPPC was interested in pursuing this appeal, or whether the appeal is still pending.
Needless to say, it was most interesting that an election could have been vitiated because of the use of a measure which had not been established to result in mass disenfranchisement. Both of these decisions should have been appealed because they delved into important constitutional issues which remain unsettled onto now.
Yesterday, the Chief Justice declined to order the Cabinet to resign as is provided for under the Constitution. There is a difference between the Cabinet and the government. The latter can exist without the former and is not necessary for the existence of a caretaker regime. After all, full executive power resides in one person who merely delegates executive authority.
The person who had applied for the order to force the Cabinet to resign has indicated that he will be appealing the matter. But that would only be of academic importance because by the time the appeal is heard, a new government would have been in place.
But for the sake of constitutional interpretation, it is important that the decision be appealed, and if needs be, be appealed all the way to the Caribbean Court of Justice. There are significant issues which have not been resolved by the decision.
One of those is what happens if a Court presumes that all stakeholders will act with integrity in implementing an unvarnished provision of the Constitution and therefore refuses to issue mandatory orders to the two other arms of the government, namely the executive and the legislature. What is the recourse if politicians do not act with integrity and are in violation of the Constitution?
This question remains unanswered. While any appeal of yesterday’s ruling by the Chief Justice may not have any impact on what happens on Vlissengen Road, it does have implications for what happens in the future.
And so the decision should be appealed. And while the appellant is at it, he can ascertain whatever happened to that appeal which was supposed to be filed against the decision vitiating the 1997 elections.
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