This is a country of political continuous drama. And citizens can expect a lot more in the weeks and months ahead.
Most persons are of the mistaken view that the date of elections has been settled. But this is far from so. It is quite possible that another constitutional crisis, one that is greater than the one which now exists, can emerge by the end of the year.
Arguments are expected to begin in December on the appeal filed against the High Court decision relating to house-to-house registration. If that decision is overturned – and anything is possible in Guyana’s Courts – then this changes a lot of things in the electoral process.
The Court of Appeal decision in that case is not likely until February, one month before the elections. And if the Court of Appeal overturns Justice George’s decision then the Guyana Elections Commission (GECOM) will have less than a month to decide what to do with the preliminary list of electors which is now subject of a Claims and Objections period.
There is a real possibility that regardless of how the Court rules, this matter will end up in front of the CCJ since both sides are not seeing eye-to-eye on the issue of what to do with the data from the house-to-house registration. If the matter goes all the way to the CCJ, it will be impossible to hold elections before May at the earliest.
A constitutional crisis already exists. The government at present is illegal. Its life expired on September 18. An extension could only have been had from the National Assembly. And this did not occur. There is no obligation for the Opposition to give legal cover to the government by returning to the National Assembly to extend the life of the government until March next year, as some misguided persons have been arguing.
The government therefore is operating without a legal cover and its actions can eventually be challenged as being unlawful.
The doctrine of necessity which allows for otherwise unlawful actions to be given legitimacy does not appear to be applicable in this case because the situation in which the country now finds itself was not unavoidable.
Even if some constitutional doctrine is found to legitimise the rule of the government between now and March 2, 2020, there remains the possibility of elections not being held by the original constitutional deadline next year. This will create a further crisis.
The government is not worried. It is operating under the false pretext that because it is allowed to remain in government until elections are held that it can do so indefinitely. This is a misguided position because the Constitution envisages the holding of elections within three months of the passage of a no-confidence motion or until such period as may be decided by two-thirds of the National Assembly.
This three-month period was paused as a result of the approaches to the Court but the countdown commenced following the delivery of the consequential orders of the CCJ. In other words, the three-month deadline expired on September 18, 2019, unless this period was extended by the National Assembly.
The National Assembly has not extended the period and therefore the government is illegal.
Can the actions of an illegal government be legal? Desmond Hoyte had taken an intractable position following the 1997 elections that the Janet Jagan government was illegal. Yet he later crawled back into the National Assembly on the basis of a distinction between a de facto government and a de jure government.
The CCJ did not name a date for elections because this is not its purview. That is the responsibility of the constitutional stakeholders. And it could not name a ‘drop dead’ date in light of the constitutional provision which allows for the National Assembly to extend the life of the government.
But the CCJ, in its decision, left no doubt as to when elections should have been held in the absence of such an extension. It spoke to the clear language of the Constitution, which requires no gloss to make it intelligible. And it spoke about the pause in the three month deadline during the period when the legal cases were being heard.
The government’s position is that it has to remain until elections are held. And it knows that elections are due every five years which means that it should be held before June next year. But even that is now in doubt given the impending appeal of the High Court decision dealing with house-to-house registration.
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