A new day with new constitutional arrangements

By Nigel Hughes The recent actions of the President when he prorogued the National Assembly once again brought into sharp focus the

Nigel Hughes

powers of the President under the current Constitution, the distribution of democratic and executive power and the urgent need for constitutional reform. The call for Constitutional Reform has been made by many citizens and from many quarters but specifics have been in short supply. I propose to address some of the more egregious elements of the current constitution which perhaps require more urgent attention than others. The current constitution, which has its origins in the 1980 Constitution, underwent significant amendments in 2001, after the country had been involved in yet another bout of political, social and economic upheaval. There were significant, positive amendments which were effected as a result of the Constitutional Reform process, resulting in some rather advanced amendments including, the direct incorporation into domestic law various human rights enshrined in some international treaties including the Convention on the Elimination of All Forms of Racial Discrimination, Convention against Torture and other Inhuman or Degrading Treatment or Punishment, Covenant on Economic, Social and Cultural Rights, Covenant on Civil and Political Rights, Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, The Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women. But in what has become a national trait, the amendments flattered to deceive. The deception lay not in the incorporation of these rights into domestic law, but in our complete and total inability to enforce them, as they could only be enforced through the Human Rights Commission, which we have failed to establish more than a decade later. I propose to examine in this first presentation, the distribution of “democratic power” under the current constitution. Article 50 of the Constitution boldly proclaims “The Supreme organs of democratic power in Guyana shall be (I) The Parliament (ii) the President and (iii) the Cabinet”. At first blush, one may well draw the conclusion that the three organs of democratic power are separate, divided and equal. The very next Article in the Constitution, Article 51 begins the unmasking of the true architecture behind the distribution of power. Article 51 located in a different chapter under the heading Parliament. Composition of Parliament states, “There shall be a Parliament of Guyana, which shall consist of the PRESIDENT and the National Assembly”. Second appearance of the ubiquitous “democratic” President. The second “organ of democratic power” the Presidency, is vested with “supreme executive authority” by virtue of the provisions of Article 89 of the Constitution. The third and final “organ” the Cabinet, is constituted as follows  in Article 106 “There shall be a Cabinet for Guyana, which shall consist of the President, the Prime Minister, the vice presidents and such other Ministers as may be appointed by the President. The power to appoint is coupled with the power to terminate which is located in Article 1823 3(b) which provides “The office of Minster shall become vacant if the President so directs.” The icing on the cake is located in Article 99 which does not vest executive authority in the Cabinet but in the President. It provides, “The executive authority shall be vested in the President…” In a word of the three supreme organs of democratic power in Guyana, the President constitutes two and a half parts namely, the one half of the Parliament, the complete Presidency and the complete power to identify, constitute,  appoint and remove the Cabinet. The above position was recently judicially confirmed by a ruling of the Chief Justice in a matter brought by Jacob Rambarran seeking constitutional redress against the manner of the allocation of the national frequencies. The Chief Justice ruled “The President in whom all executive authority resides is the supreme organ of democratic power and also a component of parliament. The National Assembly not being the supreme organ of democratic power, cannot exercise democratic power superior to the President or parliament (of which the President is a component).” No self-respecting democratic state should locate its “supreme organs of democratic power” in the Presidency. The organs of democratic power should consist of the National Assembly and the Presidency, with the Presidency being the minor of the two organs. In  the event that a new constitution identifies and locates the “organs of democratic power” in the National Assembly and the Presidency, then the election of the President shall be effected directly by the people, and not by virtue of being head of any party as exists at present. Under the current arrangements the President is elected by virtue of being the Presidential Candidate stated on the list of candidates which he/she heads.  This arrangement fuses the election of a party to the National Assembly with the election of the candidate for President. This removes from the electorate the opportunity of voting for a different presidential candidate than the party which he/she represents. The divided, disparate political and cultural history of Guyana requires the identification of leadership which is based on consensus rather than plurality. The President must be able to secure a majority of the votes cast. This may require a run-off between various candidates which may initially seem protracted and expensive, but given our divisive history, the alternative will continue the insularity. The members of Cabinet should only be appointed subject to the approval of the National Assembly and shall not all be identified by the President. Our deeply divided political history has locked various sections of the population out of executive decision-making in all cases, leading to cabinets identified and appointed solely at the President’s discretion. A new constitution should envision a cabinet which includes key appointments from the specifically qualified nominees from political parties in proportion to the votes secured at the National election. The system must force consensus in executive Government. Ministers need not be elected members of the National Assembly, but must be approved by the National Assembly. The newly-elected president shall within a specified time frame, not to exceed three months, present to the National Assembly for approval the development plan for the country for his/her term of office. Further proposals will be included in subsequent presentations.