The Caribbean Court of Justice has delivered justice which had been miscarried in our local courts. In a not unexpected ruling, it has reversed the majority of the Guyana Court of Appeal (and by extension the first instance ruling of Ian Chang Chief Justice (ag) (then) in the so called presidential third – term case (Cedric Richardson V Attorney General). It was a miscarriage induced by three Justices with political blinkers (Carl Singh, Chancellor (ag) and B.S Roy, Justice of Appeal in the CoA) under the disguise of constitutional interpretation. Permit me to stir some points which such an emphatic humiliating rejection by the CCJ of the rulings of the CoA majority, and chang, CJ (ag) raise and bring into sharp focus.
Editor, miscarriage of justice such as happened deserves (if not compels) post mortem. Why, and how, could such have happened when both Chang CJ (ag) and the CoA majority, must have appreciated that their rulings were bound to be appealed and in the case of the CoA to be reviewed by the CCJ; with no real prospect of it being upheld. Or did the CoA majority seriously misread the resolve of the Granger government to uphold the will of Guyanese expressed in article 90 of the Constitution; in preference to political self-interest.
I start my forensic autopsy with this question: was not Cedirc Richardson (who had no previous legal or political profile) a surrogate for Bharrat Jagdeo in that constitutional case? Now, here was a man who knows nothing about law (much less the intricacies of constitutional law), a man who is a notorious political unknown, suddenly like Rip-Van-Winkle, awaking after more than a decade of that third term limit introduction in the Constitution, and seeking to have the courts declare unconstitutional an amendment/alteration of article 90 which at that time prejudiced only Bharrat Jagdeo.
Sheer common sense, logic and the overwhelming circumstantial evidence has driven me to the irresistible conclusion that Richardson was nothing but a surrogate for who – yes, Bharrat Jagdeo. Nor, was this surrogacy lost on Chang, CJ(ag) who in his judgment made no less than three references to “Bharrat Jagdeo”, Singh CJ (ag) once, Cummings – Edwards CJ (ag) then dissenting in the CoA – none. The point here, is that consciousness, like bias can be an insidious master. Did the CJ (ag) and Carl Singh, C(ag) unwittingly or otherwise, (and unlike Cumming-Edwards CJ (ag) in the CoA) allowed their judicial minds to be influenced by this surrogacy? There is strong circumstantial evidence in support of such a view.
My next step, is to point out and draw attention (again) to the Usain Bolt like speed with which Singh, C (ag) caused the appeal to be heard, and judgment delivered before his impending demitting of office. Like the Hon. Attorney General Basil Williams., SC, I too had queried, the haste to complete this particular appeal with its obvious political overtones (see KN article Saturday January 14, 2017 “AG queries haste to complete presidential third-term appeal”) and my letter in which I said “I myself as an officious bystander see this haste to ruling with some alarm and disquiet… it must be a matter of some considerable disquiet and intrigue that this matter is set for ruling without the fulness of oral arguments but on the basis of written submissions not submitted at the instance of the parties but ordered by the Court” (GC Wednesday January, 18, 2017 – “Did Chang have jurisdiction to hear third term motion?).
So, what influenced the haste? Lacking as Singh, C(ag) judgment is in legal erudition [(contrast the logic, perspicacity and lucidity of Cummings – Edwards, CJ (ag) (then)] on one possible view, the CoA majority predominant motive, was in biblical nomenclature – come hell or high water, to deliver a judgment which removed the electoral prejudice which article 90 caused to Jagdeo; for they must have appreciated that a CoA differently composed (both Singh and B.S Roy demiting office was impending) was not likely to rule favourably to Jagdeo , for the law was decidedly against Richardson.
I come to the final point in my forensic autopsy. The overall balance sheet in seven (7) judges for the constitutionality of the third term limit; four (4) against. (albeit B.S Roy, JA gave no reasons but merely concurred with Singh, C (ag). I anticipate with amusement, attempts by some local commentators/letter writers/ columnists to impugn the obviously correct judgments of the CCJ’s overwhelming majority. I have no desire to indulge in ego, and revisit my published letters on this matter: first, “The CJ’s decision on term limits” (SN Monday July, 20, 2015); then a third letter (“CCJ would be directing itself to the soundness of submission” GC Sunday March 25, 2018) was prompted by the inexplicable confidence and persuasion exhibited by the usually logical Sherwood Lowe for Richardson’s Trinidad Senior Counsel Douglas Mendez “flip-flop” arguments before the CCJ. I am being purposefully sarcastic when I ask if Richardson is of such means to have retained that battery of Trinidadian lawyers. Why would Richardson have such an interest in such a matter that involved no proprietary or other material benefit to him?.
My forensic autopsy is done. My opinion is that the miscarriage was caused by politicization. And, I could not fail to allude en passant, to an ominous portention of the Opposition Leader, poignantly captured in the two following captions viz “Jagdeo wants to remain PPP boss-even if CCJ nixes his third term bid” (GC Sunday June 24 2018); “Jagdeo says will continue leading PPP no matter what CCJ rules” (SN Sunday June 24, 2018).
I had prepared as part of this letter an open notice (as it were) to the Chief Election Officer, of his duty come Nomination Day 2020 to reject any party list naming Bharrat Jagdeo as its Prime Ministerial candidate, as defective, and the reasons therefor. However, that aspect is soundly dealt with by my learned friend Sanjeev Datadin whose opinion has my entire concurrence (KN Wednesday June 27, “ Jagdeo cannot be Prime Minister either”). Article 101 (1) is an express constitutional ineligibility which embodies that well known rule or canon of interpretation: when anything is directly prohibited; it is also indirectly prohibited (quando aliquid prohi betur ex directo prohibetur et per obliquum).
I end with this: amidst the surrogacy, constitutional legalese, judicial politicking and humiliation, and, portentions of a constitutional crisis, there is a lesson and moral which deserves to be highlighted – that President Granger is a true constitutionalist who puts the Constitution above political self interest. (the GC editorial of Tuesday June 26 might have put it differently as “statesmanship”). In the events which have happened, President Granger could have, tactfully, instructed his Attorney General not to appeal Chang, CJ (ag)’s ruling delivered on 9th July, 2015. An unappealed ruling (albeit knowing that it was palpably wrong) would have remained the law, entitling him to be the APNU+AFC presidential candidate (and President) in 2025, 2030, 2035. But President Granger did not. He resisted the human urge to, self interestedly, avail himself of the futuristic benefit of that wrong ruling. David Arthur Granger is demonstrably, a constitutionalist par excellence.
Maxwell E. Edwards