– CCJ blanks Jagdeo’s September 18 elections date

– urges parties to make appointment of GECOM chair a matter of greatest public importance

THE Caribbean Court of Justice (CCJ), on Friday, ruled that it had no authority to set a timeline or date for the holding of elections in Guyana, noting that the country’s Constitution invests that power in the President and the National Assembly.

In delivering the Consequential Orders in the aftermath of the landmark ruling that the No-Confidence Motion brought against the Government was validly passed, President of the CCJ, Justice Adrian Saunders, while noting that Article 106 of the Constitution clearly outlines the responsibilities of the President and the National Assembly, said CCJ had no authority to issue coercive orders or detailed directives instructing the President and the National Assembly on how they should act.

“It is not, for example, the role of the Court to establish a date on or by which the elections must be held, or to lay down timelines and deadlines that, in principle, are the preserve of political actors guided by constitutional imperatives. The Court must assume that these bodies and personages will exercise their responsibilities with integrity and in keeping with the unambiguous provisions of the Constitution bearing in mind that the no-confidence motion was validly passed as long ago as 21 December 2018,” Justice Saunders explained.

Leader of the Opposition Bharrat Jagdeo, through his attorney Anil Nandlall, had asked the CCJ to order the President to name a date for elections on or before September 18, 2019 but the CCJ has made it clear that only the President can set that date for elections.

According to Article 106 (6) and (7) of the Constitution, the Cabinet, including the President, shall resign if the Government is defeated on a vote of confidence; however, notwithstanding that defeat, the Government must remain in office, and hold an election within three months, or during an extended period approved by two-thirds of the National Assembly.

Justice Saunders said while the judiciary interprets the Constitution, the provisions outlined in Article 106 (6) and (7) require no gloss on the part of the Court.
“Their meaning is clear and it is the responsibility of constitutional actors in Guyana to honour them. Upon the passage of a vote of no-confidence, the Article requires the resignation of the Cabinet including the President. The Article goes on to state, among other things, that notwithstanding such resignation, the Government shall remain in office and that an election shall be held ‘within three months, or such longer period as the National Assembly shall by resolution supported by not less than two-thirds of the votes of all the elected members of the National Assembly determine…,’” Justice Saunders reasoned on Friday as he delivered the consequential orders in Trinidad-based CCJ.

He said the Guyana Elections Commission (GECOM) has the responsibility to conduct the election and it must abide by the provisions of the Constitution. On the basis that the No-Confidence Motion was passed on December 21, 2018, the CCJ President said elections in Guyana ought to have been held by March 21, 2019 in accordance with the Constitution, if there was no extension granted by two-thirds of the National Assembly.
“The National Assembly is yet to extend the period. The filing of the court proceedings in January challenging the validity of the no confidence vote effectively placed matters on pause, but this Court rendered its decision on 18 June 2019. There is no appeal from that judgment,” he pointed out.

Upholding a submission made by the Attorney General of Guyana Basil Williams, through his attorney Senior Counsel Eamon Courtenay, the CCJ maintained that though it has ruled that the No-Confidence Motion in the Government stands, it is the President, the National Assembly and GECOM that have responsibilities that impact the precise timing of the elections which must be held.

But while it did not set a date or timeline for the holding of elections, the CCJ said until those elections are held, the Government must operate as an “interim government” or a “caretaker government.”

Justice Saunders explained that in mandating that the Government remains in office notwithstanding its defeat and the resignation of the President and the Cabinet, Article 106 requires that Cabinet’s tenure in office be on a different footing from that which existed before the No-Confidence Motion.

He posited that the Chancellor of the Judiciary, Justice Yonette Cummings-Edwards, in citing Hogg – the Canadian Constitutional expert, was right to note that: “…the government continues in office as a caretaker government or an interim government until the next elections ensue and a President is appointed (or reappointed) depending on the results of that elections.”

Justice Saunders told the parties in the matter, “by convention, the government is expected to behave during this interim period as a caretaker and so restrain the exercise of its legal authority.” He added: “It is this caretaker or interim role that explains the three-month deadline, in the first instance that the Article lays down, in principle, for the holding of the fresh elections.”

Based on those lines of reasoning, Justice Saunders together with Justice Jacob Wit, Justice David Hayton (not retired), Justice Winston Anderson and Justice Maureen Rajnauth-Lee, made a total of eight declarations with respect to the consolidated No-Confidence Motion cases.

The CCJ, Guyana’s final appellate court, declared that the provisions of Article 106 (6) and (7) of the Constitution apply to a No-Confidence Motion, while reiterating its June 18 decision that 33 votes constitute a majority of the 65-Member National Assembly.
It also declared that though recalled Member of Parliament, Charrandass Persaud, was ineligible to be elected to the National Parliament due to the fact that he is a citizen of both Guyana and Canada, his vote on the motion of no confidence was valid.
It said too that nothing in the anti-defection regime established at Article 156 (3) of the Constitution rendered Persaud incapable of casting his vote on the motion, in the manner he did. As such, the Court further declared that the National Assembly properly passed a motion of No-Confidence in the Government.

The CCJ, in handing out these orders, said the due observance of constitutional democracy and the rule of law in Guyana rest in large measure, with the conduct of the various branches of government, that is, the President and the Cabinet, the Parliament and the Judiciary. “All must be faithful to the spirit and letter of the Constitution and operate within the parameters given to each by the Constitution,” it urged.

Meanwhile, in response to its June 18, 2019 decision that the process that resulted in the unilateral appointment by the President of a Chairman of GECOM was flawed and in breach of the Constitution, the CCJ said the need to issue consequential orders and directions has been rendered largely unnecessary because the GECOM Chairman voluntarily resigned his office subsequent to the decision.

“It is now a matter of the greatest public importance that the President and the Leader of the Opposition should, as soon as possible, embark upon and conclude the process of appointing a new GECOM Chairman. This imperative is now of the utmost urgency in light of our decision in the no-confidence motion cases that the motion was validly passed thereby triggering the need for fresh general elections,” Justice Saunders said.