— Attorney Maxwell Edwards contends

THE three-month provision in the Constitution, which provides for early elections following a vote of No-Confidence against a government, is not mandatory but rather directory, Attorney-at-Law Maxwell Edwards has argued.

Edwards, who is among attorneys representing Attorney General Basil Williams, established this position in his submissions to the Court of Appeal in the case, The Attorney General v The Speaker, Opposition Leader and APNU representation, which seeks to overturn the January 31 decision of the High Court.

“It is our respectful submission that article 106(7) can only be interpreted as directory since the government has no control over elections. It has to be read subject to articles 161, 161A; 161B; and 162 (1)(a) which give the Elections Commission exclusive remit with respect to the holding of elections,” Edwards stated in his submissions.

According to him, only GECOM can determine when elections can be conducted having regard to its state of readiness. In laying the foundation for his argument, Edwards pointed to the case of Attorney General of Grenada v. The Grenada Bar Association [2000] in which Chief Justice Byron, as he then was, underscored the principle of looking at other provisions of the Constitution in order to glean what the framers of the Constitution intended.

“It is our respectful submission it could not be a proper interpretation that after the expiration of three months, there would be no sitting government and President and by implication, no one to run the state of Guyana. A purposive interpretation must be given to Article 106(7) to read that the President and the government continue in office and resign when a President is sworn in after an election,” he argued.

Edwards, who is appearing in association with Solicitor General Nigel Hawke and Attorney Mayo Robertson, emphasised that the court is the guardian of the Constitution and has to interpret the Constitution in a purposive manner to avoid a constitutional crisis.
He said, in law, it is important for the Constitution to be interpreted as a whole, and failure to do such could result in error. “Interpreting a section or part of a Constitution in isolation will likely result in the Court not appreciating the impact that its interpretation may have in real life,” Edwards argued.

It was pointed out that the Caribbean Court of Justice recently reiterated this rule in McEwan and others v Attorney General of Guyana [2019].
“Law and society are dynamic, not static. A Constitution must be read as a whole. Courts should be astute to avoid hindrances that would deter them from interpreting the Constitution in a manner faithful to its essence and its underlying spirit.

If one part of the Constitution appears to run up against an individual fundamental right, then, in interpreting the Constitution as a whole, courts should place a premium on affording the citizen his/her enjoyment of the fundamental right, unless there is some overriding public interest,” he stated while quoting the CCJ.
Edwards said the Constitution is a radically different document that calls for a different and enlightened approach by the Court to its interpretation.

BROAD, GENEROUS AND PURPOSIVE APPROACH
“The nature of a Constitution requires that a broad, generous and purposive approach be adopted to ensure that its interpretation reflects the deeper inspiration and aspiration of the basic concepts on which the Constitution is founded. Respect must be paid to the language that is used and its context, by considering all relevant provisions bearing on the subject for interpretation as a whole, and to the traditions and usages which have given meaning to that language, in order to effect the objective of the Constitution.

In order to do this, the court must have a sober and objective appraisal of the general canvas upon which the details of the constitutional picture are painted,” Edwards said while again quoting Justice Byron in the very case Attorney General of Grenada v The Grenada Bar Association.

Edwards submitted that in interpreting sections 106(6) & (7), the learned Chief Justice Roxane George-Wiltshire failed to consider the Constitution as a whole, regarded these articles as part of an ordinary statute, and thereby fell into error.

He further submitted that section 20 (1) (b) of the Interpretation and General Clauses Act, Cap 2:01 requires that the learned trial judge should have ruled in the Appellant favour.
“We submit that in its pith and substance, Resolution 101 abridges, subverts, impairs, dilutes or curtails the five (5) years term of office guaranteed by article 70 (3) of the Constitution and to that extent, Resolution 101 is contrary to the prohibitory provisions of section 20 (1) (b) and is void and cannot stand,” he put to the Court.

The case, The Attorney General v The Speaker, Opposition Leader and APNU Representatives comes up on Tuesday, March 12, 2019 at the Court of Appeal. The Chief Justice had upheld the decision of the Speaker of the National Assembly, Dr. Barton Scotland, but the Government, through the Attorney General, is seeking to have it overruled.