On July 12, 2019, the CCJ announced the consequential orders, which supplemented their decisions issued on June 18, 2019. What is clear is that the Court has deemed that the vote of no-confidence was properly passed on December 21, 2018, in the National Assembly, and that the clock on Article 106 restarted on June 18, 2019.
What does this mean? The CCJ stated in clause 8 of their consequential orders that “the tenure in office of the Cabinet, including the President, after this defeat is on a different footing from that which existed prior to the vote of no-confidence”. The CCJ then went on in this same clause to endorse the position of a Canadian constitutional expert who stated that the “Government continues in office as a caretaker government or an interim government until the next elections ensue and a President is appointed”. However, the CCJ clarified this statement by offering in the same clause that it is “this caretaker or interim role that explains the three (3) months deadline” for the holding of fresh elections.
The CCJ further elucidated that by convention, the caretaker or interim government is expected to behave with “restraint in the exercise of its legal authority”. That is no accident. As the AFC Sunday Column did point out, there is a constitutional convention obligating the Government to exercise “restraint” in the making of significant appointments, major policy decisions and entering into major contracts or undertakings while it is functioning in a caretaker/interim role.
Though the scope of the convention may be disputed, the weight of historical precedent, and the spirit and intent of the Constitution, all suggest that it applies to how this interim/caretaker Government operates. In this essay, I want to consider the caretaker convention and what it has to say about Mr David Granger’s actions since the issuance of the consequential orders. My central aim is not to assess the constitutionality of his actions specifically, that I leave to the constitutional lawyers. However, I plan to use this piece as a springboard to reflect on the caretaker convention and its application after these three months have expired on September 18, 2019.
Constitutional conventions, as defined by Marshall and Moodie, are “rules of constitutional behaviour which are considered to be binding by and upon those who operate the Constitution”. As this definition suggests, conventions are distinct from the ordinary “law of the constitution”. Therefore, while reading the letter of the Constitution, constitutional lawyers and advisors must pay attention to the conventions in order to grasp the full intent of the written law. It is simply not possible to grasp any constitutional system of arrangements within the British Commonwealth of Nations (a system that Guyana is anchored to) by looking to the written law in isolation, a grave mistake that Team Granger continues to make.
As Ginsburg told us, “written constitutions serve a valuable coordination function”. But as we have seen over the last six months, they leave a great deal unsaid. Left to their own devices, most written constitutions of the world do not say enough and that is why the framework on their interpretation has always included the historical evolution of the written law. In this time of a caretaker/interim government in Guyana, the minimum expectation is that Mr Granger will act within clear boundaries that do not classify his operations as business as usual. He must demonstrate the integrity to incorporate the principle by which we as a people operate and do all within his powers not to compromise the intent of the December 2018 vote. Thus, as a principled start, the onus is on him to swiftly conclude the appointment of the GECOM Chairman. That is a one-day affair.
In the exercise of this restraint associated with a caretaker / interim government, the worst thing any caretaker President can do is impose himself on the nation after September 18, 2019, without the two-thirds endorsement from the National Assembly. The centres of power, like civil society and the army, must let him know the constitutional parameters within which his caretaker / interim Government exists, in compliance with the global norms.
In the current dispensation, the life of this caretaker/interim Government comes to an end on the midnight hour of September 18, 2019, and in its place, we would be having an illegitimate government, unless there are free and fair elections. An illegitimate government does not have the power to make any appointments, any policy decisions, and enter into any contracts on behalf of the people of Guyana.
The law will empower any new government to surcharge any public official especially Permanent Secretaries, Regional Executive Officers or any other Accounting Officers for any expenses incurred during the life of an illegitimate government. It is from this perspective that I must also forewarn every domestic and international investor who chooses to sign any contracts with this caretaker/ interim Government to understand the risks. A new administration can very well deem all signed contracts with this caretaker / interim Government as illegal and unenforceable. It is hoped that good sense will prevail.