A LOT has been said about the rule of law recently. And not just here in Guyana. In the UK Prime Minister Boris Johnson has been the target of a slew of criticism for his comments that he would not ask the European Union (EU) for an extension to the Brexit deadline if no deal is reached with Europe by October 19. This is despite the fact that parliament passed a law requiring him to seek an extension after that date in the absence of an agreement. The act was intended to obviate the possibility that Britain would crash out of the EU on October 31.
How is it possible that a British prime minister can effectively tell the nation that he is prepared to break the law? Various ministers have tried to dance around the issue rather clumsily, but at the same time they have assured reporters that the government will obey the law. Mr Johnson, however, has not reversed himself.
Given Mr Johnson’s declared intention to breach the rule of law, David Allen Green, writing in the Financial Times, described the Prime Minister as having gone “rogue”, and relayed the view of a former Lord Chancellor, Lord Falconer, that the present incumbent should resign even if it was only a question of the PM persisting in his rhetoric after being given an ultimatum on the subject. He went on to observe that since “the stuff of politics in a modern society is about control of the law-making process, a politician who disregards the law poisons the wells of democracy.”
While many British citizens might reflect ruefully on how their Prime Minister is undermining the country’s democratic framework, Guyanese are afflicted by a more profound political problem: quite simply, the well of democracy has never been uncontaminated here since at least 1968. And at the moment we are undergoing yet another of our perennial constitutional crises, which the perpetrators of that crisis perversely refuse to recognise for what it is.
Some commentators are suggesting that following all the Brexit confusion and uncertainty, the UK might have to move to a written constitution. The lesson from Guyana is that no written constitution, no matter how clearly expressed and incapable of misconstruction, will supply a guarantee that politicians will observe the rule of law. Even court rulings here are bypassed by politicians. In the end, what matters is the commitment of all the political actors to abide by the law and to hold themselves accountable.
PM Johnson has not yet breached the rule of law, in contrast to President David Granger who has done so already and continues to do so. He has over an extended period failed to abide by the constitution.
The difference between the situation of Johnson and Granger is that the former will certainly be forced by the courts to obey the law if he violates it, and they can if necessary require another minister to carry out what he refuses to do. He could be subject to sanctions of a civil and criminal nature. President Granger can transgress the rule of law with impunity, and there will be no consequences in the form of legal sanctions.
It is one thing to consciously contravene the rule of law and quite another not to know what it is in the first place. But it would seem Prime Minister Moses Nagamootoo may have problems in that department. Only a few days ago the Guyana Chronicle reported him as maintaining that the APNU+AFC government had both de jure and de facto status”. In his weekend column in that paper he wrote, “Its legitimacy flows from the nation’s Constitution and from the overwhelming majority of our people who support it.” While the government has de facto status at the moment, it is certainly not the case that the nation’s constitution confers on it a de jure character.
He went on to aver that despite the apprehensions over “early elections’’, the rights and freedoms of citizens were secured and protected. But this is the problem. In the absence of the rule of law, the rights and freedoms of citizens cannot ultimately be assured.
There is another difference between the UK and Guyana which relates to the role of the legal officers who advise the government. The nearest equivalent to the British Lord Chancellor—although he is not equivalent as such—is our Attorney General and Minister of Legal Affairs. Whether or not there is a case to be made out for The British Chancellor to resign because the prime minister has said he would break the law, it would nevertheless be expected that he would do so should the latter carry through on his resolve.
On this side of the Atlantic, attorney-general Basil Williams has, by his advice, unnecessary court actions and frivolous arguments in such cases, been complicit in flouting the rule of law.
President Granger has on more than one occasion taken shelter behind his AG’s advice. If the premier legal officer in the land can be so cavalier about the rule of law, there can be little expectation that the government qua government would adhere to it.
—Courtesy Stabroek News