Waiting for the 'second judgement'
by Rickey Singh
IT WAS big time in Guyana last week, and nothing to do with pushing ahead with arrangements for the big cultural festival, 'Mashramani 2001'.
In this Caribbean Community state where electoral fraud had become an institutionalised political phenomenon from 1968 to 1985, and where it was once difficult to even successfully serve an elections petition, High Court Judge Claudette Singh delivered an unprecedented decision:
The elections of December 15, 1997 were declared null and void because of a constitutional violation in requiring the use of a voter ID card to cast a ballot.
The results of the poll were not rendered invalid because of "unlawful acts or omissions" or any evidence of electoral fraud.
However, the implications for governance, in view of Justice Singh's ruling on Monday, have now left the nation and its CARICOM partners anxiously awaiting her 'consequential orders' expected on Tuesday morning -- making it the second big 'judgement day'.
Should the government, parliament and all state institutions continue to function for the purpose of governance until a new President is sworn in after elections that must be held on or before March 31?
If not, what is to be the constitutional/political status quo?
If, as the main Opposition People's National Congress (PNC) contends, the government has been rendered illegal by virtue of the elections being declared void, then what is to become of all the acts and things done by the government and parliament -- including the current Elections Commission and judicial appointments - since the outcome of the December 15, 1997 elections?
A 'Victory'?
Senior Counsel Keith Massiah who successfully argued the case against the voter ID card as part of the
PNC's team of lawyers, is himself aware that it was by UNANIMOUS decision that the National Assembly approved on September 18, 1997, the Election Laws (Amendment) Bill 1997 making a voter ID card a requirement to vote, instead of amending the relevant section of the Constitution itself.
It seems a fair question to ask whether experienced lawyers also have a social responsibility to alert lawmakers, certainly those with whom they have some political affinity, against passage of controversial legislation, instead of allowing it to become a 'fait accompli' and, as in the current case, a constitutional violation of immense implications for the entire nation.
The judge's decision came within two days prior to the date, January 17, when new elections were to have been held under the terms of the CARICOM-brokered 'Herdmanston Accord'.
As the Elections Commission maintained its inability to have all relevant arrangements in place for the elections earlier than March 19, the PNC kept insisting on an interim governance arrangement that would have required the PPP/Civic vacating office.
Justice Singh's decision came amid the unresolved issue of temporary governance between January 18 until the outcome of the March 19 elections.
Her decision has clearly created a new political ball game that calls for realistic cooperation and sober judgement, on ALL sides, to prevent things falling apart, and at a time when there is a national consensus to proceed towards scheduled new elections.
If the people of Trinidad and Tobago felt they were faced with a constitutional/political impasse between their President and Prime Minister, then Justice Singh's ruling has left the Guyanese people confronting what seems a much more critical constitutional dilemma.
The Caribbean Community's point man on Justice and Governance, Prime Minister Kenny Anthony of St. Lucia was being briefed in Port-of-Spain last Monday on the implications of President ANR Robinson's refusal to act in accordance with the Constitution and appoint as Senators seven defeated candidates of Prime Minister Basdeo Panday, when Justice Singh delivered her decision.
Not Fraud
No political joy was, however, forthcoming on that score for the opponents of the PPP/Civic.
With its own long history of rigged elections, the PNC very much wanted a verdict deeming the elections void on the basis of fraud. This did not happen.
Justice Singh said that, "having considered the evidence in relation to the massive irregularities which have occurred, I am unable to make a positive finding whether those unlawful acts or omissions, per se, might have affected the results..."
"While the final results might have been so affected as a mere possibility, for the Court to find this as a probability would necessarily involve the Court in speculation and the Court cannot speculate."
"As such", she added, "I am unable to find that it is more likely than not that the proved unlawful acts or omissions did affect the final results of the elections..."
However, the second major aspect of the elections petition proved to be a knock out blow for EVERYBODY -- the government and the other parliamentary parties -- PNC, TUF and AFG.
Ironically, the petitioner's own party, PNC, had stated that it was "unreservedly" supportive of the legislation unanimously approved by the National Assembly on September 18,1997 for the use of voter ID cards.
Justice Singh decided that making the ID card compulsory, "no voter ID card, no vote" - as was the slogan for registration of voters for the 1997 elections -- contravened Article 159 of the Constitution.
She addressed this violation in the context of whether a "general illegality" had affected the whole election.
She was to finally rule that the elections were not conducted in accordance with the provisions of the Representation of the People Act (Chapter 1.03) and articles 59 and 159 of the Constitution of Guyana.
The PPP/Civic had won a second term by securing 36 of the 65 seats in the National Assembly -- an overall majority of seven -- on the basis of having polled 55.3 per cent of the popular valid votes with an official voter turnout of some 88 per cent.
But PNC-led political demonstrations in Georgetown resulted in CARICOM's intervention and the brokering of an Accord to have new elections by January 17, 2001.
Now we must await Justice Singh's further decision -- the "second judgement" -- on Tuesday to know the way forward in a constitutional/political impasse that could not have been seriously anticipated by any of the key players, irrespective of today's claims and counter-claims.
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