In a lecture at the London School of Economics earlier this month in support of his book ‘Post-Truth: why we have reached peak bullshit and what we can do about it’, Evan Davis, the eminent British journalist, stated that never has there been more concern about dishonesty in public life and, that, inter alia, people are more susceptible to bullshit that reinforces commitment to their side. He recommended, rightly I believe, that the best way to avoid being sucked in by bullshit is to try to keep an open mind and interrogate the propagators so that eventually the truth will be exposed. It appears to me that given the nature of our society, the level of political bullshit that Guyanese have been fed over decades is so enormous that our political sides have become virtually solid and unmovable structures. However, political analysis is nothing if cannot suggest solutions by preventing bullshit from perennially baffling brains.
When last January, President David Granger first presented the country with his unusual interpretation of article 161 of the constitution, I wrote that “An upper secondary school child should be able to decipher that our constitution allows three categories of persons to become the chairperson of the Guyana Elections Commission: a judge of the high court, a person qualified to be such a judge or any ‘fit and proper person’. So President David Granger’s rejection of the list submitted to him by the leader of the opposition on the grounds that ‘none of the candidates was a former judge or someone eligible to be appointed as a judge’ is patently false and it must be deliberately so” (SN: 18/01/2017).
The question then arose as to what motivated the president to adopt this clearly false position and its implications for Guyana. After analysing a few explanations, only one, that which claimed that the government intended to manipulate upcoming political elections, necessitated the president’s unconventional stance. I then surmised that ‘If the intention of the government is to unilaterally select its own chairperson and it proceeds along this course, it will open an entirely new politically disruptive trajectory for Guyana’ (SN: 18/01/2017). And here we are today!
Furthermore, after Acting Chief Justice Roxane George gave her oral decision, I argued that although she required the president to give reasons for his decisions, the notion that he could proceed to appoint someone outside the names submitted by the leader of the opposition if he determines that all the nominees are unacceptable, was bothersome to me. After all, it is relatively simple to manufacture reasons, and the effect of giving the president that authority could take us back to the pre-Carter era, when the PNC more or less had carte blanche over the elections commission and allegations of elections fraud were rife (SN:18/01/2017). Perhaps to mitigate the negative effects of the unilateral authority given to the president, in her written decision Justice George not only held that the president should give reasons but that he is also ‘obliged to act reasonably, rationally and objectively and not capriciously and arbitrarily. He must objectively assess the person’s ability to discharge the functions of the office, their integrity, political impartiality and such like’ and ‘it is hoped that the discretion be exercised in a manner that promotes the public interest and common good.’Well that was a wasted hope, for the president has not only refused to provide reasons so that he can be properly defended against his growing number of detractors, but he has again made some rather incredulous comments.
When asked if he intends to provide reasons as required by the Acting Chief Justice’s decision, he said ‘I have to be advised. As I said I have not seen anything in the constitution which requires me. I know the Chief Justice has made certain statements. I intend not to contradict the Chief Justice but I have not been advised that that is a requirement which is enforceable. I don’t know that is enforceable’ (SN:24/10/2017). The president has been making similar-type noises since the judge gave her oral decision: are we actually being told that he still has not been ‘advised’ and still does not ‘know’ but has proceeded to make the appointment? What are we to make of the separation of powers? I wonder how Evan Davis would comment upon this!
The question is, ‘What is to be done?’ Confronted by these kinds of issues in a democracy, the first line of defence is usually the law, but various levels of direct action are also acceptable. The PPP/C has opted for radical non-cooperation, and in view of its interest in this matter its position is understandable, even if it contains significant pros and cons. Non-cooperation might cause the government some minimal discomfort but means that constitutional reform to establish, for example, post-election coalitions, which the regime is determined to avoid, is unlikely. I believe, however, that it is still possible for us to find a solution in the courts.
Many a time laws are insufficient, unclear and conflict. Courts exist to attempt to do justice by interpreting the law in various ways to guarantee liberty, to enhance social order, resolve disputes, maintain the rule of law, provide for equal protection, and ensure due process of law (http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.html). It is not necessary that they adhere strictly to the text of a law. There are at least five sources that could guide legal interpretation of the constitution: the text and structure of the constitution, the intention of those who drafted, voted to propose or voted to ratify the provisions in question; prior precedents, the social, political and economic consequences of alternative interpretations and natural law.
In my view those who framed and accepted the Carter formula sought to create an American-like co-equal selection regime. It gave the opposition and the government an equal number of seats on the commission and both sides the opportunity to choose the chairperson, the only exception being where one party refuses to participate. A broader interpretive perspective could have produced a decision more in keeping with natural justice, social order and thus our general development.
In February 2014, when then Acting Chief Justice Ian Chang determined that the National Assembly could not cut the budget, I said, ‘What this episode has reminded us of is that courts are constituted of people with all their prejudices and interests and that to reduce bias, important matters such as this should, even in the first stages, be assigned to a panel and not left to a single person.’ (SN: 05/02/2014).
This is as relevant now as it was then. On appeal to a wider body, it is most unlikely that given our historical context, particularly in relation to the management of national elections, an interpretation that allows the president to unilaterally select the most partisan judge (this is not directed directly at Justice James Patterson) he wishes could possibly stand. Dangerous self-interest camouflaged by bullshit cannot perennially baffle brains!