The ‘de facto doctrine’

Attorney General and Minister of Legal Affairs Anil Nandlall was quick to reference the “de facto doctrine” to give validity to decisions made by Ms. Oneidge Walrond-Allicock, Minister of Tourism, Industry and Commerce, and Member of Parliament when she was holding these titles in violation of Article 155 of the Constitution of Guyana. According to the Attorney General, “The Opposition knows that the de facto doctrine will cure everything” and referenced the case of former parliamentary Charandass Persaud to substantiate the view.

Dehuaime.org legal dictionary referenced a 1910 publication by Albert Constantineau’s ‘Treatise on the De Fatco Doctrine in its Relations to Public Officers and Public Corporations.’ He wrote:-

“The de facto doctrine is a rule or principle of law which, in the first place, justifies the recognition of the authority of governments established and maintained by persons who have usurped the sovereign authority of the State, and asset themselves by force and arms against the lawful government; secondly, which recognises the existence of, and protects from collateral attack, public or private bodies corporate, which, though irregularly or illegally organised, yet, under colour of law, openly exercises the powers and functions of regularly created bodies; and, thirdly, which imparts validity to the official acts of persons who, under colour of right or authority, hold office under the aforementioned governments or bodies, or exercise lawfully existing offices of whatever nature, in which the public or third persons are interested, where the performance of such official acts is for the benefit of the public or third persons, and not for their own personal advantage….

“Again, the doctrine is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large, since any other rule would lead to such uncertainty and confusion, as to break up the order and quiet of all civil administration. Indeed, if any individual or body of individuals were permitted, at his or their pleasure, to challenge the authority of and refuse obedience to the government of the state and the numerous functionaries through whom it exercises its various powers, or refuse to recognise municipal bodies and their officers, on the ground of irregular existence or defective titles, insubordination and disorder of the worst kind would be encouraged, which might at any time culminate in anarchy.”

A wry smile must have creased the face of those who heard or read the Attorney General’s rebuttal. It is a rebuttal loaded not only in arrogance, but convenience and the Opposition should not let him get away with it. If the de facto doctrine covers Ms. Walrond- Allicock as it did Mr. Chanrandass and all others who sat in previous parliament as dual citizens, then it covers December 2018-August 2020. The de facto doctrine and the doctrine of necessity covered the 1997 Janet Jagan administration after the elections which resulted in her becoming president was nullified by the High Court in 2001.

The de facto doctrine and doctrine of necessity are not only for the use or convenience of the People’s Progressive Party/Civic Government but also for A Partnership of National Unity + Alliance for Change Government. Decisions made by the Coalition after December 2018 are not only covered by the ruling of the Caribbean Court of Justice that the government remains in office, albeit under different footing, until an election is held, and a new President sworn in but also by the stated doctrines.  The Coalition should assert itself and stop operating as though afraid of jumbie and its shadow.

The unrelenting attacks brought against persons and the overturning of decisions made by the Coalition after December 2018 should have been meted with spirited resistance based on those doctrines. The bullishness of the Ali-administration in overturning decisions made by the coalition government because they were said to be in office “illegally” were allowed to pass by an Opposition that has seemingly not done its homework, shell shocked it was removed from office or too weak to fight.

A government is as wrong and strong or accountable as the Opposition is weak or assertive. An unconscionable government will not stop its tyranny and bullyism unless checked by a no-nonsense Opposition.