The 90-day period to hold elections following the successful passage of the no-confidence motion on December 21, 2018 came to an end in March, and another three months later, the Guyana Elections Commission is still not ready for General and Regional Elections. In fact, GECOM has gone silent since the Caribbean Court of Justice ruled on Monday that the no-confidence motion was validly passed. As of now, from what is currently playing out in the country’s political sphere, the Constitution is being trampled upon, and the court of law is being disregarded by the current Government.
The actions of the Government over the past two days have brought up again the debate of the mechanism of “separation of powers”, and the need for it to be respected.
While the doctrine was first enunciated in the middle of the 18th Century by the Frenchman Montesquieu, it was given life in the first written Constitution of a nation – that of the 13 colonies that rebelled against the tyranny of British rule and established the United States of America. The gist of the concept is simple but profound in its implications. Since the powers of the Leviathan state can be abused when they are controlled by one person or a group, Montesquieu proposed that power could be functionally divided among Executive, Legislative and Judicial branches of the Government. This allocation of powers would be described in the Constitution, the supreme law of the land.
The Executive would be responsible for running the Government, the Legislature for enacting laws, and the Judiciary for ensuring those laws are not transgressed by the citizenry and the Constitution is not violated by the other two co-equal branches.
Because “men are not angels”, in the words of one of the framers of the American Constitution, incumbents always try to increase their powers, especially where the lines between the branches of Government are not watertight.
For instance, since the Judiciary is the arbiter of the Constitution, and therefore the guardian of the boundaries of power in the other two branches, citizens have to be very vigilant to ensure that neither of those branches hobbles or controls the Judiciary when it exercises its power of judicial review. It is for this purpose that, for instance, the salaries of the Judiciary must be independent of Executive control; even judicial mouths may be muzzled by the hands that feed them.
Another way in which the Executive may try to influence judicial decisions is by ensuring the Bench is packed with individuals with whom they are comfortable. To lessen this eventuality in Guyana, Judges are supposed to be nominated by the Judicial Service Commission (JSC) and then appointed by the President. If, however, the President has some concerns about the nominees, he can return the list to the JSC for reconsideration; but if it returns the list, the President has to either approve the nominees or sit on the list. In the latter case, as is presently the case in Guyana, a crisis can develop in the Judiciary, since their ranks can become decimated to such an extent that justice cannot be served in the courts.
Given this doctrine, and given all that the Government has thus far done to avoid complying with the Constitution, in defiance of the CCJ ruling, a situation can arise in which the country can be deemed ungovernable, as had obtained in the past. The aftermath of the 1997 elections is a classic example of an ungovernable environment being created, despite the fact that it was not an issue of unconstitutionality, but one of dissatisfaction over the results of those elections.
Having walked that road, having fought for what it believed to be right then, having ignored the Constitution now on the no-confidence vote, the Government seems unconcerned about the potential negative impact its action would have on all.
