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Extension of period to hold elections...

Constitutional crisis will be averted if rule of law prevails – Ramjattan

Kaieteur News (KN) interviewed Leader of the Alliance For Change, Attorney-at-law Khemraj Ramjattan, to get his

thoughts on whether there is an impending Constitutional crisis as a result of the Amendment to article 61 of the Constitution

at the last sitting of the Eight Parliament of Guyana . Below is Ramjattan's legal take on the issue.

KN: After the 1997 elections were vitiated, because of the unconstitutionality of voter ID Cards, you saved the day for the then Jagdeo administration with the application of the ‘doctrine of necessity'.

Khemraj Ramjattan: Indeed. And it was this that helped bring normalcy and orthodoxy to a highly charged and uncertain situation. It was the argument that kept the PPP in power, though with limited authority, until the 2001 elections.

This doctrine of necessity was a useful judicial device to ensure that there is not a constitutional vacuum. It was first creatively applied by our own legal grandmaster, J.O.F. Haynes, in the Grenada scenario after the USA invasion there.

KN: Do you think that, with the passing of the recent Constitutional Amendment Bill where article 61 was amended, this can give rise to a constitutional crisis, as PNCR Leader Mr. Robert Corbin is asserting?

Ramjattan: I respectfully differ with my learned colleague, Mr. Corbin. It is my opinion that if the Amendment was not passed in the National Assembly then the conditions for very serious constitutional questions would have arisen.

The passing averted a constitutional crisis, rather than created one. This is my humble opinion.

KN: But don't you think that article 61 is in a collision course with article 69?

Ramjattan: No doubt by extending the timeline to Sept 3, 2006, for elections to be held, it would mean that the National Assembly cannot practically have its first sitting, as article 69 stipulates, by this same September 3, 2006.

But should a failure to meet such a deadline for holding the National Assembly's first sitting vitiate the elections? Such an anomalous consequence should never be.

Just assume for one moment that the PNC wins the elections. Will it argue such a consequence to deny itself victory? You see, one has to get to the purpose of the provision.

KN: As a lawmaker during the constitutional reform process, what was the purpose behind the timeline in article 69?

Ramjattan: Quite rightly, it is the answer to this question that will settle this whole matter. The purpose behind article 69 is to ensure that there is not an extended period of non-Parliamentary scrutiny of the Executive branch of government after an election.

What was being contemplated ordinarily by this article 69 was that, after the result of an election is known, the winner must convene the National Assembly within a short time, one month, to commence Parliamentary scrutiny of the new Executive.

Now, if for some reason elections cannot be held so as to ensure an adherence to the timeline for convening a first sitting of the National Assembly in accordance with article 69, as is the case presently, it would be ridiculous constitutional jurisprudence to vitiate the result of the elections so held.

I rather suppose that a jurisprudence which holds article 69 merely directory and not mandatory is what will emerge out of this collision. Surely having the elections is far more important than Parliament's first sitting. In any event, the latter cannot be held without the former; it hangs on the former.

So, no right-thinking parliamentarian, whether Opposition Leader or Attorney General, should contemplate an interpretation which will result in a crisis. That will be but a subversion of the Constitution itself.

Constitutional provisions must be interpreted so as to give it efficacy; not to grind it to a halt and create gridlock. The rule of law must emerge superior in the end, not anarchy.

This is exactly what the Privy Council determined in its recent decision in Bobb and Moses v. Manning in a not too dissimilar situation.

KN: What will happen if elections cannot be held on or before September 3, 2006?

Ramjattan: It can be postponed by the [ Guyana ] Elections Commission under powers it has under article 162 (2) (a).

This article is interesting, and is indicative of the point I am arguing. It starts off with the words: “Notwithstanding anything contrary in this Constitution”...the Election Commission can postpone the Elections to a date other than the appointed day under certain circumstances.

What this means is that a postponed Elections cannot be ‘negatived' or vitiated by article 69. This adds credence and cogency to the point I earlier made.

KN: So what is all this talk when the President says that he will call a State of Emergency to further delay the elections if it cannot be held on 3rd September, 2006?

Ramjattan: I initially thought that this was a way out, but I have to respectfully differ with the President.

Indeed the President can recall a dissolved Parliament before the holding of elections owing to the existence of a war or a State of Emergency under article 70 (5).

But the elections must be proceeded with.

This article cannot be used to effectuate a further postponement of elections beyond a September 3, 2006 scenario. Only the Guyana Elections Commission can postpone after the September 3, 2006.

Kaieteur News