Constitutional judiciary and new-wave democracy

DPI, Guyana, Sunday, March 17, 2019

The new American Ambassador to Guyana, Sarah-Ann Lynch, seems to have already rolled up her sleeves and started work to build on the solid relations between the United States of America and the Cooperative Republic of Guyana.

I noted her remarkable understanding of the unfolding events in Guyana, which she placed in an innovative context of support for the country’s judiciary. In her remarks after she received her accreditation from President Granger, the Ambassador said:

“We have seen a strengthening of the democratic process and political institutions, along with broader political participation and citizen representation. Moving forward, we will continue to encourage genuinely free and fair elections, freedom of speech and assembly, multi-party representation and a constitutional judiciary process…”

CYNICAL COMMENTS

I have since seen a few cynical comments on social media about her choice of “constitutional” to describe the judicial process, as her detractors were quick to read into her remarks support for a perceived government’s position to delay elections by waiting on the outcome of the appeal against the judgment on the no-confidence motion cases.

I did Internet surfing on the subject and came up with impressive academic findings. There is a hefty text on “Constitutional Judiciary in a New Democracy: the Hungarian Constitutional Court” by Laszlo Solyom, and another titled, “The Supreme Court and Constitutional Democracy” by John Agresto.

These studies have been made in post-authoritarian States which, like Guyana, have since been riding on new waves of democracy. Like Guyana, the Judiciary in those countries has been separated from the Executive, and functions as independent, constitutional branches of the State.

JUDICIAL INDEPENDENCE

In the Guyana case, this independence was affirmed by the former acting Chancellor of the Judiciary, Justice Carl Singh who, in an address to the Commonwealth Magistrates and Judges Association Conference was reported saying,

“Guyana’s Constitution provides that all courts and all persons presiding over the courts shall exercise their functions independently of the control and direction of any other person or authority, and shall be free and independent from political, executive and any other form of direction and control.” (Stabroek News, September 20, 2016)

He said that judicial independence may also be discerned from the structure, circumstances and conditions under which judicial officers function. In Guyana, he noted, the government went a step further, with a publicly declared commitment to ensuring the complete independence of the judiciary and the non-interference in judicial affairs by legislative enactments which gave the local judiciary complete control over its financial affairs.

His Honour said, to applause:

“So, it is not without significance that in Guyana, we can proudly lay claim to having complete independence in the adjudicatory processes of our courts and to institutional and financial independence.”

RULE OF LAW

As Prime Minister, I gave the feature address in which I made a distinction between “rule by law,” whereby government erroneously places itself above the law, and the “rule of law”, which implies that everyone in society, including the government, is bound by the law. I stated:

“It is on the latter that we have rested the structure of government, recognising that constitutional limits on the exercise of governmental authority, which is a key feature of any democracy, require adherence to the rule of law. Indeed, the quality of governance is defined by the observance of the rule of law. Good governance depends on it.”

I had said then, and affirm today, that there should be clear limits to the power of the Executive, which is the reason for our repeated declaration that our government is unshaken in the belief that in our State structure, the judiciary should be independent.

Our Constitution empowers our judiciary, which makes it a constitutional judiciary. Its independence is the strongest guarantee for the protection of the rights of our citizens. An independent judiciary is the bedrock of the stability of our nation and is the guarantor of the rule of law.

In their adjudicatory role, our judges are not in any way subject to any form of improper, inappropriate or unwarranted governmental influence.  That is a matter of which we in this present administration are exceptionally proud.

It is true to say, however critical we may be as of right to decisions by our courts, that the judiciary of Guyana enjoys adjudicatory, institutional and financial independence. This has been a significant achievement of the Coalition Government since its assumption of office in 2015.

WATERSHED DECISIONS

I focus today on the role of our judiciary in light of the likely watershed decisions that are pending by the Court of Appeal of Guyana in matters arising from the ruling of a court of the first instance on the December 21, 2018 no-confidence motion in the government. That opposition motion was deemed to be carried by a 33:32 vote in the 65-member National Assembly. The decisive vote was cast by a lone, renegade parliamentarian who, at the time, was under allegiance to a foreign power.

One of the protagonists that 34 votes were needed instead of 33 is the renowned jurist, Dr. Francis Alexis, author of the authoritative text, “Changing Caribbean Constitutions”. He has expounded the principle of a clear majority being one half of all MPs plus one. In an odd number, where one-half results in a fraction, it is rounded up to the next higher number, then one is added. When applied to our 65-member House, it could reveal that the vote on the no-confidence motion did not meet the constitutional threshold of a majority of all the elected members of the National Assembly.

At the first instance hearing, the Supreme Court rejected this submission. It affirmed that the motion was carried, and had effected (a) immediate resignation of the President and his Cabinet, and (b) holding of elections by March 21.

The judgement is presently the subject of appeal proceedings. But the Opposition has argued that the court process notwithstanding, the President should fix and announce a date for these elections.

The President has given clear and concise explanations as to why he is constrained from fixing an elections date, one of which is the ongoing judicial process. His Excellency has stressed that the Executive cannot, should not and would not interfere with the judiciary. It must be allowed to do its constitutional functions without interference.

Our constitutional judiciary has to carry out its mandate without pressure from the Executive or the parliamentary political opposition party. It has to protect the Constitution by giving to its provisions purposive interpretations and to render clarity to its intentions within the ambit of broad, acceptable, democratic principles.

CREDIBLE ELECTIONS

These principles include the holding of credible, transparent, free and fair elections about which the US Ambassador spoke. These principles, apart from the constitutional mandate, should insulate the Elections Commission from political bullyism, such as that from the Opposition, to hold elections for which it is neither prepared nor could deliver momentarily in a credible manner.

The President has invited the Elections Commission to advise him on these matters. It requires cooperation for consensus and realistic expectations that elections could be held this year once the constitutional judicial, parliamentary and electoral processes are concluded.

The content in this article was first published by the Guyana Chronicle