Guyanese must often be inclined to think that their politicians are very tiresome. They are supposed to represent the electorate, but their views on how to do that can often take a quite distorted form. From the President downwards all are paid by the taxpayer, but when they will not even talk to each other how can they possibly argue they are discharging their duty to the people of this country? They cannot even be fired – at least not until after a period of five years has elapsed.
At the moment it is a case of President Irfaan Ali refusing to talk to the opposition, even where that is constitutionally required. The excuse is that APNU+AFC will not recognise the legitimacy of the government. This is not just a lame excuse, worse yet, it is also a hypocritical one. The PPP/C itself played this game, refusing to recognise the Coalition government after it came into office in 2015 on the grounds it had rigged the election. It too went to court, although it later abandoned its pursuit of the case.
At an earlier stage the President attempted to exonerate himself by alluding to his invitation to former President David Granger to join him in discussing ideas along with two other former presidents. The latter declined. That was a loaded invitation, of course, since it would have involved three current or former PPP/C heads of state, and one from the Coalition. In any case, Mr Granger is the Leader of APNU and Representative of the List, but not the Leader of the Opposition, who is the one specified in the Constitution when dialogue is required. That role falls to Mr Joseph Harmon.
More recently the President has said that he had been reaching out to Mr Harmon “all the time” in his public statements and that the Opposition Leader had a choice. Our report on this matter quoted him as saying, “Let me be very clear on this … Sometimes, we have to decide what is foolhardy and what we really want to achieve.” This was a reference to Mr Harmon’s responsibility to “come clean” now about ‘trampling’ on the country’s democracy following the March 2nd elections.
This is all disingenuousness. The President is doing no reaching out if he is placing conditions on a meeting. In addition one is tempted to ask if at any time the PPP/C acknowledged publicly that the 2015 elections were free and fair, even although all election observers had deemed them so. Perhaps they should remember that their own former president, Mr Donald Ramotar, was writing to the press well into 2020 still claiming they were fraudulent. For his part Mr Harmon has said in a statement that he is prepared to meet the head of state “in the best interest of advancing the cause of the Guyanese people.”
No one will deny that the behaviour of the Opposition and its endless nonsensical harangues about the illegitimacy of the government are exceedingly irksome. A majority in the country knows that the APNU+AFC claims have no merit, including some who would have voted for the party. But the fictitious allegations are no justification for not speaking to Mr Harmon, let alone for reneging on constitutional obligations where the President is required to meet the Leader of the Opposition.
There is President Ali buzzing around the country promoting a One Guyana Commission, a Corridor of Unity and vague partnerships, without engaging the opposition in those plans. Does he honestly believe that his unity schemes can detach the Opposition constituency and bring it to the government side, even though that constituency voted for APNU+AFC? And does it not occur to him that if he persists in this course for any extended length of time he opens himself to the accusation that he is trying to insinuate yet another form of one-party government into the political system?
His case is weakest when it comes to those parts of the Constitution which require him to consult with the Leader of the Opposition on certain appointments. Mr Harmon has said, quite correctly, that the Constitution “does not set pre-conditions for consultation and dialogue between the President and the Leader of the Opposition.” Two days ago we reported Mr Harmon as calling for the head of state to confirm the acting Chancellor of the Judiciary and the acting Chief Justice. “Keeping people in acting positions is a way of controlling people,” he was quoted as saying. It is not an idle observation, and it has also been made in a less forthright way by leading members of the Caribbean judiciary. Former President of the CCJ, Sir Dennis Byron, warned that prolonged acting appointments posed a genuine “risk” to the promise to citizens of an independent and impartial judiciary.
His successor in the post, Justice Adrian Saunders, said in 2018, “The ability of the judiciary to resolve matters must be a critical dimension of the rule of law. In this regard, I have to say a significant stain on the rule of law so far is Guyana’s inability over the last 13 years to appoint a substantive office holder to the position of Chancellor…There really can be no excuse for that kind of situation.”
Those 13 years have now stretched to 15 years. There can be no other Commonwealth democracy which takes itself seriously to which this applies. The fact that this situation has gone on for so long is the fault not just of the PPP/C leadership in the form of Mr Bharrat Jagdeo, but also of APNU’s Mr David Granger. In a general sense neither would agree to the other’s proposals for substantive appointments to the most senior judicial posts, and it will not be lost on the public that the main reason is probably that neither side really seeks a truly independent judiciary. What they want – like former President Donald Trump in the United States – are judges whom they hope would be politically sympathetic to them.
Prior to Justices Cummings-Edwards and George-Wiltshire acting as Chancellor and Chief Justice, respectively, Justices Carl Singh and Ian Chang held the same posts, and those too on an acting basis. What Article 127(1) of the Constitution lays down is that “the Chancellor and the Chief Justice shall each be appointed by the President, acting after obtaining the agreement of the Leader of the Opposition.” Given the mindset of our current politicians that is a formula for a potential impasse.
The impression President Ali is conveying, whether he intends it or not, is that his party has not really shifted from its traditional stance of dominating the political space. Even if there were some grounds for refusing to talk to Mr Harmon on general matters affecting the country, and there are not, he certainly cannot defend operating unconstitutionally. It might be added that where appointments are concerned, the onus is on him to call the Leader of the Opposition, not the other way around. As we noted in our report, this was the position taken in 2017 by Mr Jagdeo, who then held the same post, and said that it was President Granger who had to make the first move to resolve the failure to appoint a substantive Chancellor and Chief Justice.
While one can imagine that Freedom House would not be happy for the head of state to suddenly announce a total change of direction, it cannot legitimately oppose him acting in consonance with the Constitution. The President’s rapprochement with the Opposition, therefore, could begin with consultations with the Leader of the Opposition on the matter of substantive appointments to the Chancellorship as well as the post of Chief Justice, something which is urgently needed. If the government doesn’t want to do that, then it is effectively declaring it is really not interested in the rule of law, never mind unity. As things stand one would hope that there would be less friction on this occasion about the appointments, considering that last year for the most part the judiciary proved its worth in relation to upholding democracy.
Earlier we had quoted the President as saying, “Sometimes, we have to decide what is foolhardy and what we really want to achieve.” It is something he might reflect on in relation to his own party’s approach.