The hearings at the CCJ

The arguments made by the Government’s lawyers and others to the CCJ, seeking to deny that the no-confidence motion was validly passed by our National Assembly on December 21, 2018, forced one participant to observe that the Government is suffering from the misapprehension that it is ruling Guyana as a monarchy, rather than as a Republic. And it is this misapprehension that has brought us to the pass where even the august Justices had to wonder wistfully why the case had to be brought in front of them, and not settled through discussion and negotiation. Monarchs, after all, rule by Divine Right, and have no need to consult anyone before they issue edicts.
This was brought out clearly when the Government’s lawyers insisted that the President’s discretion to appoint the Chairman of GECOM should be totally “unfettered” – not even having to offer reasons for rejecting names proffered by the Opposition Leader. The incredulous Court had to inquire as to the purpose of the change wrought to the Constitution after the Herdmanston Accord, when the extant unilateral and “unfettered” discretion was modified by Art 162 (2). This introduced the requirement that the President could only act unilaterally when the Opposition Leader did not submit a list of six names.
The Government’s lawyers were not only engaging in some creative concoction to further their principal’s case, but in fact were faithfully representing President Granger’s position from the onset. In fact, the latter was even more extreme in rejecting the constitutional change away from unilateralism when he derided as “perception” the ruling of the Chief Justice (ag) in the High Court that the candidate for the position did not only have to be a Judge, as previously was the case, since the insertion of the phrase “or any other fit and proper person” irrevocably opened up the field of choice.
This Government needs to be reminded — as the Justices of the CCJ each did by implication on separate occasions as they tutored the Government’s lawyers — that Guyana is a “democratic sovereign state” (Art 1), and that “sovereignty belongs to the people, who exercise it through their representatives…” (Art 9).
And as the High Court and the Appellate Court asserted recently, our Constitution has a “basic structure” that demands only the “sovereign people” can alter the substance of the values enshrined by Art 1 and 9. And the President certainly could not do so, as he and his representatives were petitioning the CCJ to do.
There was, for example, the insistence by the Government’s lawyers that the “representatives of the people” – the Members of Parliament, who were exercising the latter’s “sovereignty” – could not vote their conscience, but had to toe the party line like automatons. As one of the CCJ Justices had to ask pointedly: what, then, was the purpose of Art 106 (6), which was under question and which allowed a motion of confidence? If the MPs that constituted the Government’s majority were compelled to vote for it, would not the exercise be moot?
The tradition of the Government retaining the support of the majority of the people’s representatives in the Assembly is a fundamental tenet of constitutional democracy, since it is only through their unfettered acts that they can exercise the people’s sovereignty to give or withdraw legitimacy to the Government. To hold that the party’s position takes precedence over the will of the people via their representatives is a retrograde position that is reminiscent of Charles I’s entry into the House of Commons to seize five MPs who had “remonstrated” him over his high-handed actions. The Speaker famously defied the King, who not long after literally lost his head.
As both the High and Appellate Courts have held, the directive in Art 156 (3): that the representative disqualifies himself from holding his seat if he declares he would not support his party, only applies prospectively after the implicit or explicit act. To hold otherwise would be to deny the representative the right to use his conscience on behalf of his constituency.