CCJ will order new Chair and Elections

On June 24, the court directed both sides to make written submission on consequential orders by July 1.  The court also urged both sides to meet and try to reach consensus on appointing a Gecom Chair and fix a date for elections. The court will issue consequential orders on Jul 12 if both sides fail to reach a consensus on going forward.

CCJ will order new Chair and Elections
Photo : Dr. Vishnu Bisram

The Caribbean Court of Justice (CCJ) will on July 12 deliver its consequential orders arising out of its ruling of June 18 in the case involving Guyana’s no confidence motion (NCM) and appointment of a chair of Guyana elections commission (Gecom). The CCJ will order appointment if a new Chair of Gecom and elections. But the timeframe for carrying out these orders will be contentious. Will the court issue a timeline for executing the orders? And how will the orders be enforced? The court does not have police power to enforce its orders. In all likelihood its orders will be ignored under the guise that they are not practical. Then the doctrine of necessity kicks in.

Just to recall, the CCJ ruled on June 18 that the no confidence motion passed by Guyana’s parliament on the evening of December 21 was valid.  The court also ruled that the President (David Granger) violated the constitution by making a unilateral appointment of James Patterson as Gecom Chair; Patterson was appointed in October 2017 after Granger refused to appoint any of the 18 nominees submitted by opposition leader Jagdeo. Guyana’s constitution requires that the President selects a Chair from among the nominees of the Opposition Leader (as has been the practice since 1992).

After the court made its rulings on June 18, it ordered the government and opposition to meet and reach a consensus by June 24 on consequential orders (what should happen). That is normal practice by any court – seeking suggestions on resolutions on orders to be made. The two sides failed to meet by the deadline and had no suggestion on how to go forward with a date for elections and the appointment of a Gecom Chair.  Patterson waited a whole week before submitting his resignation even though the court ruled that his appointment was illegal.

On June 24, the court directed both sides to make written submission on consequential orders by July 1.  The court also urged both sides to meet and try to reach consensus on appointing a Gecom Chair and fix a date for elections. The court will issue consequential orders on Jul 12 if both sides fail to reach a consensus on going forward.

On July 4, Granger and Jagdeo, along with aides, met but could not reach agreement on the appointment of a Chair of Gecom. Granger informed Jagdeo that some of the 18 names he submitted are acceptable to him and that he should review the three lists of six nominees and re-issue another list. On July 7, Jagdeo submitted a list of eleven names to Granger for him to pick one as Chair. Granger could reject the entire list of eleven or advise Jagdeo to reduce it to six nominees. It will not be surprising if a response come just before the CCJ meets on July 12. It is not likely an agreement will be reached before the CCJ issues consequential orders.

What orders will the CCJ Make? The law (constitution) is clear. The precedent in other countries is also clear. When a government loses a no confidence motion it resigns and holds fresh elections within a short time of between one and three months.  The Guyana constitution mandates that elections be held within three months. But the government went to court and the process has dragged on to almost seven months and it will take another three months to hold elections. So the court will mandate that an election be held within three months – the court can’t ignore the constitution. To say the NCM is valid and to ignore its consequences would be to say that the NCM is not valid. The CCJ does not have a choice in ordering elections. The court will have a problem ordering the President to dissolve the assembly. Normally, this should have been done after the government loses a vote of no confidence or when the CCJ ruled that the government lost he vote. The government collapsed and should have resigned. The government has asked the court not to tread on political matters that fall within the remit of the President who has the power to dissolve the assembly. It is a challenge for the court to balance politics and the law.

A major problem for the CCJ is the government says elections cannot be held because the voters’ list is not up to date. The election commission says it need at least six months from now to update the list with new house to house registration that is not required in the constitution; the process could even take longer. This would mean elections would be held well beyond March 2020 and it would be like the NCM was never passed defeating the purpose of the vote. The court is likely to reject the Gecom position. The court will issue a vague order urging the government to follow the constitution. Guyana ought to be ready for election at any moment’s notice because the government can fall at any time. So the voters’ list must be permanently ready and updated.

With regards to appointment of Gecom Chair, the court will order the Opposition Leader to submit a list of six nominees (as required in the constitution) probably giving him three days to provide the list to the President. And the court will order the President to make an appointment from the list within ten days if not much sooner.

The process will be dragged out in Guyana. Will the court be able to enforce its orders?  That is the challenge!