Stay of CJ Ruling is to delay Guyana Elections

Stay of CJ Ruling is to delay Guyana Elections
Photo : Dr. Vishnu Bisram
Government has appealed Acting Chief Justice Roxanne George’s decision on the successful no confidence motion (NCM) and simultaneously filed an application before said court for a stay (Conservatory Order) of the execution of George’s ruling while the appeal goes through the judicial process. This is an effort to delay the constitutionally due elections (by March 19). Having taught American constitutional law, I can say with full confidence that while  a court’s ruling can be challenged (appealed) all the way to the final court of appeal, some rulings by convention are not subject to appeal. And the court avoids getting into matters pertaining to the affairs of the legislature (parliament) since it is a separate branch of government; the court also avoids political matters since political issues are not "justiciable"as the late Sir Fenton Ramsahoye used to say.  If both sides agree for a judicial resolution/interpretation of a political issue, the curt can redner an opinion. But most legal scholars feel the court cannot instruct the legislature (Congress or parliament) on how to run its business. The court can only interpret the constitution as pertains to legislative affairs to determine constitutionalityThe court cannot intervene on political matters.
In conversation with legal scholars in the US, Trinidad and Guyana, they concur that a ruling can be appealed. In the case of Guyana, the CCJ is our final court just as the Supreme Court is the final US court.  What scholars are saying is that instead of seeking a conservatory order (or stay), why not fast track the case before the appeal court or better yet why don’t the parties to the matter come to a consensus and seek the view of the CCJ. In the US, when there were/are “political issues” before the court, the contending parties sought/seek expeditious hearing and go directly to the Supreme Court. The same should be considered in Guyana in light of the fact that the deadline for the life of the (Acting) government is March 19, less than a month away.
 
Can a court can grant a stay of a ruling or grant a conservatory order on the Chief Justice’s decision? It is highly improbable because the acts were already carried out . “Impossible”, say legal scholars (Senior Counsels and Queens Counsels) in Trinidad because of the nature of the case. A court can stay something that is to happen. But the acts for which a stay is requested have already happened. The scholars say a court can’t stay the constitution (Article 106 or other parts unless they are unconstitutional or if a case is made that they were effected illegally say in a rigged fraudulent referendum). But the appeal must be made on that basis -- fraud.
 
Also, an act of parliament (successful passage of the NCM) can’ be stayed as it was also already carried out; if the NCM had failed, the court could not stay it either. The court can’t stay a ruling that 33 is not a majority of 65. It is indisputable among scholars of what constitutes a majority – greater than 50% or one more than the other side. If there is a judicial ruling 2-1 (say in Guyana or Trinidad) or 5-4 (as in the US). If one applies the mathematical formula being bandied about to challenge what is majority in the NCM, then a majority of 3 is 3 and a majority of 9 is 6. That is absurd. Americans and Trinis feel Guyana must have a lot of "mad people in law" who don’t know simple maths – the Americans and Trinis and maybe others  are laughing at us.
 
Justice George stated that the President and Cabinet stand resigned right after the passage of the NCM. The court can’t stay the resignation as the constitution is very clear on the issue. Once the government loses a NCM, it resigns from office. Any judge or court that seeks to issue a conservatory order on a resignation would be a target of ridicule.  And if the judge grants it, that ruling will inevitably be appealed as it would be “improper” and of no legal basis – unprecedented and unheard of. If it is not granted, it may also be appealed even though the matter has no legal merit. 
 
A claim is made that Mr. Charandass Peraud,) whose vote toppled the government, was sitting in parliament illegally (due to dual citizenship) and therefore his vote should not be counted in the NCM. But there are a dozen other members sitting in parliament illegally during the NCM. And the constitution is very clear, notwithstanding the participation and vote of someone not legally qualified to be a member of the legislature, his or her vote is legal. The learned Justice George correctly interpreted the constitution.
 
The constitution is not a toy or game. Clearly, wants to stifle the democratic process -- delay the elections. Instead of playing around with it and other democratic and legal principles, the contending parties should fast track the appeal to have a decision within a week from now. Or since the ruling will inevitably be appealed to the CCJ, why don’t the parties agree to bypass the local appeal and head straight to the CCJ for an expeditious ruling. The leaders of the two parties should get together and work out a date for the elections within a few months.