Politics and the courts

At a virtual forum facilitated by the Cave Hill campus of UWI, political scientist Professor Cynthia Barrow-Giles and law lecturer Dr Ronnie Yearwood discussed the “judicialization of politics” both in this country and to a lesser extent in the Commonwealth Caribbean as a whole. Prof Barrow-Giles who had led the team which observed the recount of votes here last year was at the time making a presentation on a paper entitled ‘The judiciary and the 2020 elections’ which she had written in conjunction with Dr Yearwood.

Guyanese are no strangers to academic analyses of their politics by outsiders, and it is not very often that they are told something which they did not know already. Not infrequently they can identify mistakes or omissions in the studies concerned, or alight on nuances which have been missed. In this instance there was much that the citizens of this country have always known, such as what the Professor referred to as the “politics of ethnicity.” She went on to observe that Guyana was a bipolar ethnic state, and the differences along ethnic lines had led to “seemingly incompatible political claims.” Ethnicity had been a major issue in all the elections in this country, she said, and people here traditionally voted along ethnic lines.

One of the “undesirable consequences” of this was the wish on the part of political parties to win an election “at any cost.” As a result, she argued, “too often” people perceived the winning political party and the government it formed as illegitimate.

It should be said that there was nothing in this that would have caused any raised eyebrows among the Guyanese political cognoscenti, but then it just formed the background to her main proposition which was that parties resorted to the courts to resolve political issues which should have been settled out of court. Where the events of last year were concerned she said that “the political parties deliberately resorted to the courts in order to resolve what was essentially in our view a political issue,” namely, who was the winner of the election.

In elaborating on the point Dr Yearwood said that the “perception for a long time” had been that electoral administration belonged in the domain of politics and that historically speaking issues of this nature were regarded as “political questions that don’t necessarily lend themselves to easy judicial supervision or easy judicial adjudication.” It was not so much a question of the courts per se actively involving themselves to resolve political matters, so much as “social actors” using the courts to advance their particular interest.

Perhaps he was referring only to the Commonwealth Caribbean, because certainly in the United States electoral issues have sometimes found their way as far as the Supreme Court, most notably in 2000 when it overturned the ruling by the Supreme Court of Florida that there should be a recount in that state. As a consequence George Bush won there by 537 votes, and by extension won the presidential election. More recently all the cases brought on behalf of Donald Trump were thrown out by various state courts, as well as the Supreme Court.

Be that as it may, Prof Barrow-Giles was of the view that it was Gecom which should have had an “overriding role to play in the developments that took place” in the wake of the 2020 elections, but that it had been “sidelined”. She suggested that this country should rethink the current constitution of the electoral commission, describing it as a “partypartisan” organisation.

This too is no news to Guyanese, who are well aware of its shortcomings. It was intended in the first instance as an ad interim measure for the purposes of the 1992 election, but later became entrenched in the Constitution because no one could agree on a different composition. Any number of local commentators, including this newspaper, as well as foreign observers have argued for a permanent, non-political/partisan commission, but since the party players in this land tend to suspect everyone of harbouring political biases, it remains to be seen whether they would really commit themselves to amending the Constitution in this regard. In other words, Gecom too is a casualty of the “politics of ethnicity” to which the Professor referred, no matter what the “tremendous powers” that she asserts it has been given.

That said, it might be remarked that under the current arrangements what matters is the resolve and fortitude of the Chairman, and under extreme pressure Justice Claudette Singh shied away from doing what was necessary at the very earliest stages of the crisis last year. As things stand it is not a post for the faint-hearted.

Where the court judgements specifically are concerned, Prof Barrow-Giles in response to a question described some of the judgments made by the local courts as “questionable”. She said that one of the most important questions was whether or not the courts in Guyana were “truly as independent as they really ought to be and therefore what can be done about that.”

Following on from this she asked whether the decisions in turn were a reflection of the lack of independence of the courts. Her query apparently was aimed at “some of the judgments” of the Appeal Court, which were “highly questionable’, not the High Court rulings which the CCJ had affirmed.

She then expressed the view that there was need to “examine the appointment process of the individual [judges].” Since the matter of the independence of the judiciary is an old one dating back to Burnham’s days, there were attempts to deal with this at the constitutional level with the establishment of the Judicial Service Commission. It is not functioning at present, since one of its members has to be appointed after agreement with the Leader of the Opposition, as have the substantive posts of Chancellor and Chief Justice. Arising out of the events of last year the President has refused to meet the Opposition Leader – another victim of our ethnic politics. It is difficult to see at present in our circumstances, how in theory the arrangements for the commission should be changed; at least the legal fraternity has made no suggestions.

The quality of the court judgements here is one thing, but as noted earlier the point of the two academics’ main thesis is that the courts were becoming increasingly involved in politics. Dr Yearwood suggested that the resort by political parties to the courts might amount to an “abuse of process”, and that “political and social actors” become attuned to court actions and then there is a move from politics to the law.

The Professor adverted to Guyana’s “political immaturity” and taken with this country’s turbulent political history, one wondered why she and her colleague did not consider that the courts might not have a role to play in our political evolution. One supposes that they are aware that some of the nation’s elections have been accompanied by considerable violence. That has been less the case in very recent times, but despite the fact that the official declaration of a result took so unconscionably long last year, the challenge only went on in the courts, not on the streets. Without the courts, one potentially, at any rate, could have been looking at authoritarian government.

Our two main parties, as Prof Barrow-Giles acknowledged, do not recognise defeat at the polls. The PPP/C did not do so in 2015 and went to the courts although they did not diligently pursue the case, and the coalition did not do so in 2020 and on various occasions before that. In addition, as the speakers indirectly conceded, our political actors do not always make agreements in good faith, and then pursue litigation in order to get those (re)interpreted.

Dr Yearwood made a distinction between judicial activism which can indicate that a court has ‘overstepped into the political arena’, and when it ‘carves out’ space for democratic institutions. In this latter function it does not have a “negative spin” since in the case of an early developing state the courts are required to assist in the crafting of space for democratic institutions to thrive.

It seems reasonable to suggest that at this stage of its evolution Guyana’s political institutions are still too fragile, and the level of mistrust between the political players too great to regard it as realistic to reduce the role of the courts in our politics. This is not the Commonwealth Caribbean, and its political traditions are somewhat different. In a sense the courts have been limning out the democratic space here, particularly the High Court and CCJ, although not in quite the sense, perhaps, that Dr Yearwood intends with his distinction. Perhaps it is more of an arbitral role, but at least the courts can condition the parties to adhere to the statutes and Constitution of this country. It would be a start.