Lawyers for parties to discuss governance
By William Walker
Justice Claudette Singh has given the lawyers in the poll petition 48 hours to come to a consensus on pre-election governance, barring which, she will issue an order on Friday. All parties to the petition will meet at the same Court 5 of the Supreme Court at 1.30 pm today and will report back to her before Friday morning. If an agreement has been reached this will be incorporated into her order. Otherwise she will make an independent order based on arguments made last week and yesterday. This initiative by the judge did not wholly reflect the point behind the last-minute submission of Senior Counsel Miles Fitzpatrick, representing Leader of the Alliance for Guyana Dr Rupert Roopnaraine. Fitzpatrick had urged the court to hold consultations before "crafting a middle way between giving a blank cheque to the existing government and creating a new administration." Fitzpatrick said in court that the judge should call Chairman of the Elections Commission, Major General (rtd) Joe Singh, to find out what laws he still needed to hold the new elections and to consult with the parliamentary parties. The court, in making any remedial order, would have to identify which laws were necessary for the maintenance of the government and the holding of elections, Fitzpatrick said in a written submission. "The court has the right, indeed the responsibility to consult representatives of the parties in the de facto parliament and of the executive and the Elections Commission to assist it in identifying such laws. All such laws should be validated prospectively in general terms. The validation of past laws (post 1997 elections, pre-decision of the court) should of course also accompany such a prospective declaration. "As regards an executive of necessity, the de facto executive currently in office is the obvious candidate... but only as an interim administration for a specific time and limited in its powers or acts of necessity (which in cases of doubt or disappointment may be specifically identified by the court on application)." Fitzpatrick noted that "a situation of de facto necessity is very different to one of legality, the de facto executive has no generally recognised lawful right to the exclusive use of state property and powers and assumes a caretaker/trustee status not as of right but as of necessity. This has implications in respect of such matters as the use of state owned and/or controlled media and the use of state property during the election period." Fitzpatrick made two other points: "the court should beware the danger of making remedial orders now which it could not or would not have made" had the petition finished much earlier; "and the court should avoid seeming to give a blank cheque to an invalidated parliament and executive for however short a time..." as this would "...give succour to those who may in future wish to distort the electoral process to maintain themselves in power and then plead that necessity requires the status quo to be continued." He suggested a short adjournment for the judge to indicate her interests in such a consultation. But Justice Singh asked Senior Counsel Ralph Ramkarran if there was now some consensus for a meeting as Fitzpatrick's suggestion "seemed like a sound idea." Ramkarran, slightly taken aback by the turn of events, said he would consent to the court's wishes. Raphael Trotman, co-counsel for the petitioner Esther Perreira, stressed that if the court did not set a time, date and place for this meeting it was unlikely to happen. Having decided on a schedule Justice Singh then added: "I'm not in that!" After the hearing, Ramkarran told the press he was reasonably comfortable that any order the judge might still give, absent an agreement, would be guided by the need for stability and the primacy of the rule of law and would leave the government intact until new elections. But he conceded that in such important issues an agreement would be preferable before the court was asked to rule. Despite several rounds of talks, the four parliamentary parties had failed to arrive at a consensus agreement on governance leading up to the new election and the government has since imposed voluntary restraints in four areas. Senior Counsel Rex McKay, representing PNC Leader Desmond Hoyte, had urged the postponement of the judge's order when he rose yesterday to suggest that the court set up a Transitional National Council made up of members of the parliamentary parties and civil society. The council would have powers to pass legislation and would run the country until the March elections. In addition the judge would have powers to make further orders as she saw fit. Justice Singh seemed rather disturbed by the suggestion: "Would not the court be entering the political arena?" she asked, remembering McKay's warning of last week. It would be the same thing to let the government remain in office, McKay replied. Even further it was absurd for the judge to validate the future actions of the government as envisaged by Ramkarran, he added. McKay spent some time addressing Khemraj Ramjattan's arguments from Friday and his application of a Canadian case "Manitoba Languages Rights." This case involved the decision by the Canadian Supreme Court to deem all Manitoba laws invalid because they were not written in French. But the court then gave these acts temporary validity until the necessary translations were done. Ramjattan had argued that Manitoba showed the court had full authority to do the same in Guyana under the principle that a judge should not create a constitutional vacuum. But McKay noted that in Manitoba all the acts had been passed by constitutional parliaments. Guyana's laws had become invalid because of an unconstitutional parliament; it was the reverse situation. He noted that the Supreme Court had struck out the old laws and had only given temporary validation for a limited time to these now de facto laws. It was important therefore that Justice Singh make a carefully worded order. Meanwhile, it might be that having ordered that a constitutional amendment be passed allowing for the compulsory use of ID cards (Act 22/97), the parties would be unable to find the two-thirds majority required. "Your order may never be obeyed! Unless something falls out of the sky." McKay could not see any two-thirds majority. "This is not a piece of cake... that is why we recommended parties talk to one another..." McKay repeated that the much vaunted doctrine of necessity only applied in extreme cases of insurrection. But Ramkarran said the doctrine of necessity could indeed be used to validate a parliament which was unconstitutionally constituted. He said his client had no objection to the court putting a limit on which acts could be passed. But he dismissed McKay's suggestion of a National Council appointed by Justice Singh, describing it as "judicial adventurism."  Follow the goings-on in Guyana
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