Guyana has accounted for 54% of the cases heard by the Caribbean Court of Justice (CCJ) during the period August 1, 2018 and July 31, 2019.

THE CCJ, which is situated in Port of Spain, Trinidad and Tobago, has a Bench of seven judges presided over by CCJ President, the Honourable Justice Adrian Saunders.
The Court has an Original and an Appellate jurisdiction and is effectively, therefore, two courts in one.

In its Original Jurisdiction, it is an international court with exclusive jurisdiction to interpret and apply the rules set out in the Revised Treaty of Chaguaramas (RTC) and to decide disputes arising under it.

In its Appellate Jurisdiction, the CCJ is the final court of appeal for criminal and civil matters for those countries in the Caribbean that alter their national Constitutions to enable the CCJ to perform that role. At present, four states access the Court in its Appellate Jurisdiction, these being Barbados, Belize, Dominica and Guyana.

However, by signing and ratifying the Agreement Establishing the Caribbean Court of Justice, Member States of the Community have demonstrated a commitment to making the CCJ their final court of appeal.

The 2018-2019 year saw a 15% increase, above the previous year, in the number of matters filed, with 2 (5%) cases filed from Dominica, 4 (11%) cases from Belize, 11 (30%) cases from Barbados and 20 (54%) cases from Guyana.

Applications for Special Leave represented a 92% increase over 2017-2018, while the number of Notices of Appeal fell by approximately 37%.

Some of the judgements issued by the CCJ in the 2018-2019 judicial year for Guyana ranged from appeals concerning three matters filed relating to a No Confidence Motion, the case concerning the constitutionality of the appointment of the Chairman of the Guyana Elections Commission and the challenge of the Cross-dressing law.

Among the appeals were the following: Political Activist Christopher Ram had brought an appeal to the CCJ against the Attorney General, the Leader of the Opposition, Joseph Harmon & Guyana Elections Commission; Bharrat Jagdeo (in his capacity as Leader of the Opposition) v The Attorney General, Dr Barton Scotland, Joseph Harmon & Guyana Elections Commission; Charrandas Persaud vs Compton Herbert Reid, Dr Barton Scotland, the Attorney General, Bharrat Jagdeo, Joseph Harmon & Guyana Elections Commission.
These appeals concerned three matters filed relating to a No Confidence Motion that was passed by a margin of 33-32 against the Government of Guyana, in the National Assembly, on 21 December 2018. The Motion was tabled under Article 106(6) of the Guyana Constitution.

In one matter, a private citizen challenged the success of the Motion, on the ground that the vote of Mr Persaud, the Government member of the Assembly who voted with the Opposition, was invalid because Mr Persaud’s dual citizenship disqualified him, according to Article 155 of the Constitution, from being elected to the National Assembly.

Also, the Attorney General contended that a majority of all elected members of the Assembly, for the purposes of Article 106(6), was half of the members plus one, which would require 34 votes.

In another matter, another private citizen sought declarations that the Motion was properly passed by the 33 votes and that national and regional elections were required no later than March 21, 2019.

The Chief Justice found that the vote of Charrandass Persaud, a Member of Parliament was not invalid.

However, the Court of Appeal, by a majority, reversed the ruling of the Chief Justice that 33 votes were sufficient to pass the Motion – and, instead, agreed with the argument of the Attorney General.

The CCJ consolidated the three appeals and rejected the submissions of the Attorney General Basil Williams, which contended that Article 106 did not apply to motions of no confidence and that only a government member could move a motion of confidence.
A majority of the CCJ agreed with the courts below that Mr Persaud’s vote could not be treated as invalid, as his election could only have been challenged by an election petition brought per the National Assembly (Validity of Elections) Act.

Hon. Justice Winston Anderson, of the CCJ, was of the view that there were circumstances where the 28-day limitation imposed by that Act might be disregarded, though he conceded that such circumstances were not entirely clear and required further thought.
The CCJ also held that, in an odd-number Assembly, all that was required was to determine whether the Motion had garnered “a majority of all the elected members.” In this case, that was 33 votes.

Thus, the CCJ held that the motion was properly passed and that the provisions of Article 106(6) and (7) were accordingly triggered
Following the delivery of the Court’s judgement in the Consolidated No Confidence Appeals, the CCJ received written submissions from the parties, on what consequential orders should be made.

In considering the appropriate order, the Court stated that while it was the function of the judiciary to interpret the Constitution, the provisions of Article 106(6) and 106(7) of the Guyana Constitution required no gloss by the Court to render them intelligible and workable.

Thus, the Court held that the passage of the No Confidence Motion required the resignation of the Cabinet, including the President, but that the Government remains in office as a ‘caretaker’ government until the holding of fresh elections within three months, or such longer period as determined by resolution supported by not less than two-thirds of the votes of all elected members of the National Assembly.

Therefore, the Court found that a general election should have been held by March 21, 2019, but that the filing of the proceedings in January, effectively placed matters on pause, which was lifted when the Court rendered its decision on 18 June 2019.

The Court did not consider it right for the Court to specify a date on or by which elections must be held, as that responsibility was vested by the Constitution in the various constitutional actors, who were bound by the unambiguous provisions of the Constitution.
Another case highlighted was the Peoples Progressive Party (PPP) executive secretary, Zulfikar Mustapha vs the Attorney General of Guyana and the Chairman of the Elections Commission.

This case concerned the constitutionality of the appointment of the Chairman of the Guyana Elections Commission (GECOM), who was appointed by the President of Guyana pursuant to the proviso of Article 161(2) of the Constitution. Article 161(2) required the Leader of the Opposition to submit a list of six nominees who were not unacceptable to President David Granger.

Before the President’s appointment of Justice Patterson as the Chairman, the Leader of the Opposition had submitted three separate lists, each containing six nominees.
However, the President rejected the three lists and utilised the proviso.

In determining whether the correct process was followed, the Court considered the drafting history of Article 161(2) and found that, before the current version of Article 161(2), the President had the unilateral power to appoint the Chairman of the GECOM.
This unilateral process was later replaced by an inclusive one which required the participation of the Leader of the Opposition.

The CCJ had noted that the Constitution was silent on the approach to be taken and so the Court decided that the most sensible approach to operationalising the Article was for the Leader of the Opposition, Bharrat Jagdeo and the President to communicate with each other in good faith on, and perhaps even meet to discuss, eligible candidates for the position of Chairman before a list is formally submitted.

The aim of such discussions should be to agree to the names of six persons who fit the stated eligibility requirements and who were not unacceptable to the President.
The Court was also of the view that the employment of the double negative ‘not unacceptable’, signalled that onus was placed on the President not to find a nominee unacceptable merely because the nominee was not a choice the President would have himself made. In those circumstances, the Court found that the process used to appoint the Chairman was flawed and did not comport with the constitutional requirements.
Following the delivery of the Court’s judgement on the constitutionality of the appointment of the Chairman of the GECOM, the Court received written submissions from the parties on what consequential orders should be made.

The Court found that due to the Chairman’s resignation since the delivery of the judgement, the need for consequential orders and directions in the case became largely unnecessary.

However, the Court emphasised that it was of the greatest public importance that the President and the Leader of the Opposition embark upon and conclude the process of appointing a new Chairman especially in light of the Court’s decision in the no confidence motion cases that the motion was validly passed, thereby triggering the need for fresh general elections.

The Court ultimately declared the appointment was void.
Another major case was the appellants Quincy Mc Ewan, Seon Clarke, Joseph Fraser, Seyon Persaud vs The Attorney General of Guyana.

The appellants, who identified as transgender persons, were convicted and punished for crossdressing in public for an improper purpose, contrary to section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act.

The appellants subsequently brought a constitutional challenge to this law. Both the High Court and the Court of Appeal denied the challenge and rejected the argument that the section was too vague and uncertain to be enforceable.

The courts decided that it was the “improper purpose” that grounded the criminalisation of cross-dressing in public.

On appeal to the CCJ, the Court examined the historical context surrounding section 153, enacted in Guyana in 1893, as part of the vagrancy laws of the post-emancipation era. It was noted that many of those laws were struck down as being in violation of the rule of law. The Court considered the effect on Section 153 of the savings law clause, which protected existing laws from declarations of constitutionality.
In striking down the section, the Court noted that law and society were dynamic, not static. A Constitution must be read as a whole and 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.

Section 153(1)(xlvii) could, therefore, not be saved if it ran afoul of the Constitution. The Court allowed the appeal, declaring that the impugned section violated the appellants’ right to equality, non-discrimination and freedom of expression and that section 153(1)(xlvii) was unconstitutionally vague and offended the rule of law.