Since De­cem­ber 21, the con­sti­tu­tion says Guyana has a `de­feated’ gov’t which is there­fore a care­taker regime

Stabroek News - - Letters -

Dear Ed­i­tor,

Ref­er­ence is made to a joint press state­ment is­sued by the Min­istry of the Pres­i­dency fol­low­ing the re­cent meet­ing be­tween Gov­ern­ment and the Op­po­si­tion. There seems to be a down­play­ing by Gov­ern­ment of the word “de­feat” as found in Ar­ti­cle 106 (7).

That pro­vi­sion states: “Notwith­stand­ing its de­feat, the Gov­ern­ment shall re­main in of­fice and shall hold an elec­tion within three months, or such longer pe­riod as the Na­tional As­sem­bly shall by res­o­lu­tion sup­ported by not less than two-thirds of the votes of all the elected mem­bers of the Na­tional As­sem­bly de­ter­mine, and shall re­sign af­ter the Pres­i­dent takes the oath of of­fice fol­low­ing the elec­tions.”

First, the pro­vi­sion does not ad­dress any Gov­ern­ment. Rather, it ad­dresses “the Gov­ern­ment” which has suf­fered “its de­feat.” This word “de­feat,” which can­not be ig­nored, is the most im­por­tant in all of Ar­ti­cle 106 (7), upon which the re­main­der of the pro­vi­sion de­pends, and which em­pha­sizes a fallen, re­stricted, or “care­taker” regime.

It is un­der­stand­able that no Gov­ern­ment wants to be de­feated and a de­feated Gov­ern­ment will try to side­step the in­alien­able pro­found­ness of this word. Here, this is be­ing done by way of leg­isla­tive and ju­di­cial abuse. First Gov­ern­ment tried to force the honourable Speaker’s hand, and now it will try to do sim­i­lar in­jus­tice to a judge’s gavel.

The record shows undis­put­edly that on De­cem­ber 21, 2018 more votes were cast against Gov­ern­ment than for it, bring­ing into be­ing “its de­feat.” To deem oth­er­wise is to side­step this word “de­feat” and to change the no-con­fi­dence mo­tion

into a con­fi­dence mo­tion.

From De­cem­ber 21 to date, the record has not been changed by fact or law. Thus, as a mat­ter of law, Guyana has not just any Gov­ern­ment but a de­feated Gov­ern­ment. Un­til such time if and when this changes, there ex­ists at hand to­day a “care­taker” regime, so the idea that the Con­sti­tu­tion is silent on this mat­ter is mis­lead­ing.

It is set­tled law in Guyana that an un­de­feated Gov­ern­ment gov­erns for 5 years and not 3 months, and does so with un­lim­ited au­thor­ity sub­ject to the Con­sti­tu­tion. It fol­lows nat­u­rally that a de­feated Gov­ern­ment can­not have the same un­lim­ited au­thor­ity, and Gov­ern­ment to­day can­not say “there is no pro­vi­sion in the Con­sti­tu­tion which im­poses lim­i­ta­tion on the Gov­ern­ment to per­form its law­ful func­tion.”

If this is true why have a no-con­fi­dence mo­tion mech­a­nism? Ar­guably, the Con­sti­tu­tion can­not give a le­git­i­mate but de­feated regime and a le­git­i­mate un­de­feated regime the same panoply of au­thor­ity. If this is so, then Guyana’s next le­git­i­mate regime will be one of lim­ited au­thor­ity with a 5-year term. It is il­log­i­cal.

Fur­ther, there never was any dis­pute that Gov­ern­ment has no le­git­i­macy. In­deed, calls for Gov­ern­ment to re­sign emerged out of re­spect for its le­git­i­macy; only a “le­git­i­mate” Gov­ern­ment can re­sign. But Gov­ern­ment’s le­git­i­macy and time in of­fice is se­verely re­stricted as al­ready ar­gued, here and else­where. The pub­lic is ad­vised to be care­ful with this de­lib­er­ate mis­cal­i­bra­tion.

Fi­nally, the Con­sti­tu­tion calls for new elec­tions “within three months.” Is this go­ing to be re­placed by the over­broad new in­ven­tion called the “ad­min­is­tra­tive ca­pa­bil­i­ties of the Guyana Elec­tions Com­mis­sion”? Is this from the Con­sti­tu­tion?

Yours faith­fully, Rakesh Ram­pertab

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