The Courts and PNC politics

Today the lawyers for the several parties involved in CCJ judgements on the No-Confidence Motion (NCM) passed in the National Assembly on Dec 21, 2018 will be presenting their written submissions to the Court on the suggestions of their principals for the necessary post-judgement consequential orders. The CCJ has turned cartwheels in an effort to have the disputes reconciled by the parties themselves in accordance with the spirit and letter of the Constitution; the spirit being “consensual”.
The Justices have valiantly attempted not to show their impatience with the casuistry displayed by the representatives of the Government and GECOM in their idiosyncratic and cavalier approach to the Constitution. But it would be very difficult to continue in this vein if the Attorney General were to present the latest interpretation of his Government on the way forward in selecting the next GECOM Chair, now that the incumbent had stepped aside after a momentary studied hesitation.
The pertinent Art 161 (2), inter alia, specifies that the person should “be appointed by the President from a list of six persons not unacceptable to the president, submitted by the Leader of the Opposition, meaning consultations by political parties represented in the National Assembly.” That the list would be prepared and presented by the Leader of the Opposition has never been questioned since 1992, when the rule was introduced.

The President is now on record as interpreting that instruction as insisting that he is also entitled to present names to the Opposition Leader: “The Government interpreted [the CCJ’s ruling] to mean that both the President and Leader of the Opposition will provide nominees on the list of six persons.” Not surprising, PPP quickly responded, “In this regard, it was never a matter of controversy that the list of six names must emanate from the Leader of the Opposition, and the appointment of one therefrom is exclusively the remit of the President.”
But in outrageously moving the goalposts once more in interpreting the Constitution, the PNC-led Government is placing enormous pressure on the Courts in general, and the CCJ in particular, to walk a fine line on the boundaries between the judiciary on one hand and the executive and administrative branches on the other. It would appear that because of the obduracy of the PNC, the Courts will now become the arena for settling the political disputes of the day – which have always been fractured and febrile, to begin with.
There are some in the PNC camp who have already complained in the state-owned newspaper that the Courts are getting too “intrusive” into politics, and it is important that the Guyanese people understand that politics is ultimately dependent on the “rules of the game” as delineated by the Constitution. And that in our system of governance, our Constitution has authorised the courts with the power of “Judicial Review” – that is to authoritatively examine the actions of the other co-equal branches of the state, the executive/administrative bodies and the Legislature, when petitioned, to determine whether the latter are acting within the limits of their remit as delineated by the Constitution.

In the US, there is a tradition of “judicial deference” on questions that involve policies for governmental actions that are seen as within the bailiwick of the Executive, and so may raise issues of “separation of powers”: but the cases before the CCJ at this time are not within that realm. The Court is being asked to use grounds of rationality, legality, proportionality and reasonableness, which have been authorised as the standards to evaluate all exercises of public power in determining questions which the Court has already signalled should never have reached the Judiciary.

When one reviews the history of the PNC on the question of clinging on to state power, it is not difficult to conclude that they are once again laying the grounds for challenging any adverse result of the next elections, even though they have succeeded in delaying those elections for almost a year.