How will CCJ Rule on Guyana?

The Caribbean Court of Justice (CCJ), based in Trinidad, announced on Monday (June 10) that it will deliver a ruling Tuesday May 18 on the two (political) appeal matters relating to Guyana that were heard a month ago. How will the court rule? It is the view of this writer that the court will rule against the government.

How will CCJ Rule on Guyana?
Photo : President of the Caribbean Court of Justice, Justice Adrian Saunders

The Caribbean Court of Justice (CCJ), based in Trinidad, announced on Monday (June 10) that it will deliver a ruling Tuesday May 18 on the two (political) appeal matters relating to Guyana that were heard a month ago. How will the court rule? It is the view of this writer that the court will rule against the government.

This appeal was supposed to be an urgent hearing and judgment given the nature of the case – whether a government could continue in office having lost a no confidence motion. In all other countries, the government resigns. In Guyana, there is no respect for parliamentary norms.

The CCJ has taken its time to render a judgment. In do doing, it has given new meaning to the term “judicial urgency”. This matter has taken almost six months to resolve when precedents suggest that it should not have been in court in the first place. In every court, the judges should have sent back the file instructing the government to hold elections within ninety days as stated in the constitution. When a government loses a no confidence motion in any part of the world that subscribes to a parliamentary tradition, it resigns and hold elections.

Just to recap, the appeal to the CCJ was filed in late March after two judges in Guyana ruled that 34 is a majority of 65. It took some six weeks for the CCJ to hear oral arguments on the case.  And it now promises a judgment more than four weeks after arguments were heard. This was not a normal case and the matter should have been disposed off within a few weeks -- that is judicial urgency.

In first world countries, like the US or Australia or Canada or UK, judicial urgency means the judges deliver a judgment on a constitutional issue within hours or days. Even in India, the Supreme Court also rendered judgments on urgent appeals within hours or a few days.  In the US, Canada, UK, Australia, and India, urgent appeals were at times requested on disputed election matters. The court rendered judgments within a couple days. One recalls that in the Bush/Gore election petition of November 2000, the Federal court heard the case and rendered judgment within a day. The matter was appealed all the way to the Supreme Court (final court of appeal) and heard right away with judgment given promptly in each step of the way because of the nature of the case – critical for government formation. But, regrettably, in the Anglophone Caribbean, as the Guyana cases illustrate, an urgent appeal takes months. No wonder that only four countries (out of 12) in CARICOM have expressed faith in the CCJ. The court does not understand judicial urgency which for first world people and India mean dire necessity and a matter heard expeditiously.

The three Guyana cases before the CCJ are straight forward: One has to do with what is the majority of 65? The Guyana government and two appeal court judges say 34 is a majority of 65. This is not complex space-related mathematics. The judges may be spaced out, but any nursery child knows that 33 is a majority of 65. Any other number will make the CCJ a laughing stock. Guyana is a laughing stock because of the ruling of the two judges.

Another case is whether a disqualified Member of Parliament (on account of being a dual citizen that is prohibited by the Burnham constitution) can vote on a motion (the no confidence vote). The Guyana Burnham constitution clearly states that not withstanding the “illegal participation” of a MP “illegally voting” (not supposed to vote) on a motion, his or her vote stands counted and cannot be reversed. The constitution also specifically states that if an elected person is suspected of not being qualified to serve as MP, an election petition must be filed against the MP (within 28 days of an election). The dual nationality MP (Charandass Persaud) told the leader of his party (Khemraj Ramjattan) that he holds Canadian citizenship and that he should not be a member of the assembly. The leader told him not to worry about it since several other MPs also hold dual citizenship. Indeed, eight other MPs (from among government and opposition) held dual citizenship of UK, US, or Canada and they all voted on the no confidence motion as well as on other motions going back for years. So dual nationality does not vitiate (void) a vote in the assembly.

The third matter before the CCJ is whether the Guyana President can unilaterally appoint the Chair of the Elections Commission (Gecom). The chair votes to break ties in the six member commission (three appointed by the President and three appointed by the Opposition Leader). The Guyana constitution states that the President must appoint a Chair from among nominees submitted by the Opposition Leader. The lower court and court of appeal in Guyana ruled that the President can unilaterally appoint the chair if the President is not satisfied with the nominees of the Opposition Leader; the clause in the constitution does not allow for such loose interpretation. The constitution was changed in 2000 to stop unilateral appointment of a Chair by the President. The Opposition Leader nominated eighteen members, including a former Election Chairman (Joe Singh) and several individuals (like Lawrence Singh and Chris Ram) all of who campaigned for the coalition. Granger rejected all of them saying they are not qualified (by account of their ethnicity?) and appointed a supporter of his party that served as a judge in the Grenada Treason trial that convicted Bernard Coard and others. It should not be too difficult for the CCJ judges to interpret the plain language of the constitution.  But with Caribbean judges, anything can happen.

Nevertheless, it seems clear to me how the CCJ will rule on the matters – all against the government. Otherwise, it will be a mockery of the law. The bigger issue will be to enforce the CCJ’s ruling if indeed they rule against the government. Judicial rulings have hardly been enforced in Guyana over the last four years. The CCJ should mandate that a new Chairman of Gecom (among Jagdeo’s nominees) be appointed within seven days and instruct the government to hold elections within three months.