Judicialization of Politics in Guyana
The fundamental political problem in Guyana, as has been repeatedly emphasized in these columns and by others over the years, is the struggle for ethno-political dominance. It has long been recognized by most observers, and even by the two main political parties themselves, reflected at one time or another in their policy and manifesto promises. Even though first recognized by the PPP in the 1970s, that party’s electoral dominance over the past twenty-five years has resulted in its abandonment of policies of ‘winner does not take all’ and shared governance after 1992.
It took APNU+AFC longer, but it also came around to the same position in the 1990s. However, it failed to implement its manifesto promise of 2015 to promote constitutional reform to introduce shared governance. In the PPP’s case, it did not and does not want to share power. In the APNU+AFC’s case, faced with the reality, it feared that it would have only a secondary role in any shared governance coalition having regard to its winning of the 2015 elections by only 5,000 votes.
The political gridlock that has existed for over fifty years, over every issue of contention, intensified by the struggle for ethnic dominance, has eliminated every single source of independent opinion in Guyana, because such opinion will fall on one side or the other of the political divide. Despite this, there were constitutional and electoral reforms to a significant degree.
The absence of judicial intervention in political disputes during the period of 1968 to 1992, except for some scattered attempts, was not because there were no issues. It was because the political opposition was convinced that the judiciary was not an impartial arbiter. With the flying of the PNC’s flag over the Court of Appeal building, the call by Justice of Appeal Crane for ‘socialist’ policies to guide decisions and the three trials it took to free Arnold Rampersaud of murder charges in the face of statements to the Police by the main witness which cast serious doubts as to the veracity of his evidence implicating Rampersaud, there was no appetite to fight losing battles in court. With their limited resources, opposition politicians saw mass political mobilization as a more productive political route. It was such mobilization that saved Rampersaud.
The UWI seminar held to discuss the research paper by Professor Barrow-Giles, a political scientist and Dr. Ronnie Yearwood, a law lecturer, on “The Judiciary and the 2020 Guyana elections” noted the trend toward the “judicialization of politics in the Commonwealth Caribbean” and, as regards Guyana, “signal(s) the saliency and increasing importance of the judiciary in Guyanese politics.” While acknowledging the right of political parties to approach the courts for redress, Barrow Giles’s conclusion is that the political parties went to court to resolve political issues that should have been settled out of court. It was Barrow-Giles’s opinion that GECOM should have had the “overriding role to play in developments that took place” following the elections on March 2, 2020 and joined the call for reforms. Professor Barrow-Giles played the lead role in the recount process overseen by Caricom.
Describing Guyana as a “bipolar ethnic state,” Professor Barrow-Giles recognized the ethnic issues in Guyana’s politics and lamented its consequences of winning at any cost. The Professor concluded that there was “malfeasance” taking place on election night in Regions 4 and that the process was not “credible, transparent or inclusive.” The courts were then invited to judicially resolve political problems. The legal challenge by the PNCR to President Granger’s agreement to have a recount could not have been missed.
The ethnic bipolarity of Guyana’s politics, which rules out negotiated solutions to political or electoral problems, has also led to the absence of institutional arbiters to resolve political differences. This is the fundamental reason for having to resort to the judiciary in the post-1992 era in the expectation that the courts have also been liberated. For a time during the 1990s and early 2000s, the decisions of Justice Desiree Bernard in challenges to elections, led to that expectation.
The negative comments on Guyana’s judiciary, and particularly on the decisions of the Court of Appeal, both before and after the elections, which were reversed by the CCJ, where there were appeals, have underlined the importance of the CCJ to Guyana and, hopefully, will encourage some reflection by our Judges. The transformation of the question as to the majority of 65, or any number, into the realm of humorous folklore, should be enough reason. Notwithstanding the existing political gridlock in Guyana and the undesirability of the judiciary becoming a political arbiter, Guyana’s “bipolar” political condition which ensures the continued entrenchment of the struggle for ethno-political dominance, and its long history of elections’ rigging, the
judiciary, including the CCJ, must continue to see itself, whether political arbiter or not, as the protector of the constitutional and democratic rights of the Guyanese people, whether derived from political gridlock or otherwise.
As far back as 1970, when the PNC Government proposed the abolition of appeals to the Privy Council, Cheddi Jagan, seeing dangers ahead because of the 1968 election rigging, called for retention of appeals on constitutional matters. Political history since then and the existence of the CCJ have vindicated him.