Sunday, June 30, 2019

THAT was the title of an open invitation that I had issued in 2012 to the Ramotar-led government, one year after the fateful November 28, 2011 elections, at which the PPP lost its majority in the National Assembly for the first time since 1992.

My intention at that time was for national dialogue, and probably for some form of shared governance. But after two uncertain years, the weakened PPP administration prorogued, then dissolved Parliament. It plunged head on, but blindly, into premature elections, which it lost in 2015 to the newly minted, pro-democracy APNU+AFC Coalition parties.

The post-Jagan PPP suffered a double-whammy when it consecutively lost its parliamentary majority in 2011, and then its government authority in 2015. This is the root of its hatred for me. But unless it learns from its past, to paraphrase the philosopher-poet George Santayana, it is condemned to repeat and re-live it. The third whammy hovers.
I have returned to the title, “Time to Talk”, on the eve of the presentation by opposing lawyers of additional written submissions to the Caribbean Court of Justice (CCJ) on the likely consequential orders following judgment on the validity of the no-confidence motion against the Guyana Government.

The CCJ has said that it would make the consequential orders on July 12, that is, what should be done to give effect to the no confidence motion for fresh elections to be held, in principle, within a reasonable time. The court has advised that in doing so, there would be need to combine principle with practicality, which seems to form the substratum for dialogue and consensus between the Government and the Opposition.

As an old political hand and as a lawyer watching from the outer edge of the Bar, I see this case before the Caribbean Court of Justice as its landmark foray into Commonwealth Caribbean constitutional jurisprudence, that seems to recognise the authochthonous nature of what Professor Francis Alexis described as the “Changing Caribbean Constitutions”, and which Professors Rudy James and Harold Lutchman earlier outlined in “The Law and the Political Environment in Guyana”.

There can be no doubt that our courts have an inherent and unfettered jurisdiction to interpret our constitutions. In so doing, they have so far opted for the purposive approach,that would in effect blend principle with practicality. As I noticed in the June 18, 2019 judgment of His Honour, President Adrian Saunders, the preference in execution of constitutional functions or even executive discretions has shifted from exclusivity and unilateralism to inclusion and consensualism.

When applied to the appointment of the Chairman of the Elections Commission, His Lordship Adrian Saunders foresees a process of meaningful consultation that could result in the Leader of the Opposition giving a list of six names, none of whom is unacceptable to the President.

I was impressed with the mature manner in which the CCJ navigated this contentious matter, in the pronouncement of Justice Saunders:-

“We are of the view that the most sensible approach is that before a list is submitted, the Leader of the Opposition and the President must communicate with each other in good faith on, and perhaps even meet to discuss, eligible candidates for the position of Chairman. The aim of these discussions must be to agree on the names of six persons who fit the stated eligibility requirements and who are not unacceptable to the President.

“In this regard, the Constitution anticipates that the Leader of the Opposition and the President will conduct themselves in a reasonable and responsible manner, eschew partisanship and seek the best interest of the Republic and the Guyanese people.”
Towards this end much depends on the Leader of the Opposition to act in good faith. I do not expect him to repeat his three previous rituals of submitting lists that had provoked and invited unilateralism.

Unilateralism was never intended when the Carter Formula was contemplated for the 1992 elections. All six names submitted by the Leader of the Opposition were acceptable, and President Hoyte selected the non-partisan,affable, quintessential public servant, Rudy Collins, whose name was recommended by me to Dr. Jagan. He delivered Guyana’s first post-independence, universally acceptable elections.

The CCJ has advised that it would make the consequential orders on July 12. In keeping with the guiding principles that I have read so far, I would expect that this distinguished court of last resort would make orders that are advisory and not coercive. It would be guided by the unique constitutional arrangements, as well as the problematic electoral history and ethnic polarisation in the Cooperative Republic of Guyana, which it fully understands.

A priori, the Guyanese President has accepted the resignation of the Chairman of the Elections Commission, whose appointed was voided by the court. His Excellency has written to the Leader of the Opposition, inviting him to meet, as was done previously, to dialogue on the way forward. I believe that it is not inconceivable that an accepted list could be crafted within a reasonable time.

The next thorny issue would be the likely time-frame for new elections. Here again, the CCJ would be expected to navigate in a practical way, the schedule for previous elections, and would not be constrained by any hypothetical deadline. There should be an outer limit that gives proper room for sanitising of the voters’ list, for dissolution of Parliament, for Nomination Day and then, Polling Day.

Except for the 1992 polls where elections were already delayed by some two years, the time frame between dissolution of parliament and election day is usually no sooner than eleven weeks – around 80 days. For the 2015 elections President Ramotar dissolved parliament on February 28, set April 7 as Nomination Day, and May 11 as Polling Day. That was within the context of a proper voters list.

Given an early time-frame for completion of voter revision before the end of November, from a practicable stand-point, new clean and credible elections could not be expected until an outer limit of January-February, 2020.

At this time there is no voters list. The last list expired under law on April 30, 2019. At the November 28, 2011 elections there were 342,126 voters. By 2015 there were some 583,444 registered voters in a population of just above 750,000 citizens. It is quite possible that that expired list was heavily padded with phantom names!

On the eve of the 2015 elections the then Chairman of the Elections Commission, Dr. Steve Surujbally outlined the factors that resulted in revision of the voters list. These included (a) registration of persons coming of age; (b) deceased electors; (c) emigration of an unknown number of Guyanese who registered and subsequently emigrated; and (d) movement of citizens from remote rural to urban areas, and to new housing schemes across the country.

Dr. Surujbally concluded that ”notwithstanding the enormous costs associated with such an undertaking, it would be advisable to have another H-t-H (house to house) Registration exercise before the scheduled 2020 General and Regional Elections”.
This is enough reason why the time has come for talk. Serious talk.


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