November 6,2016
The 18-month-old coalition-led government and the opposition People’s Progressive Party/Civic (PPP/C) do not appear to have any appetite for constitutional reform, with both sides historically wary of giving up presidential powers, Professor Harold Lutchman and Ralph Ramkarran have said.
“What they support when they are in government is entirely different to what they support when they are out of government. The same thing they criticize when they are out of power, the same thing when they are in power they don’t see anything wrong with,” Lutchman, who was a member of the Steering Committee for Constitutional Reform (SCCR), told Stabroek News in an interview.
His view was echoed by former speaker of the National Assembly and former PPP/C executive member Ralph Ramkarran who said that the APNU+AFC led coalition government is very slothful in getting the process started, although it would have been high on its manifesto priorities.
“The report has been made and the last thing we heard about it was the government is awaiting the return of Mr [Prime Minister Moses] Nagamootoo to discuss it in Cabinet. He has returned from an overseas trip to India, where he was at the time, and there has been no public indication, to date, that the report has been discussed,” Ramkarran asserted.
“It is clear that the government is dragging its feet on the constitutional reform process…the government is happy with the Constitution as it is. They have changed their minds now that they are in power and seem to now be comfortable,” he added.
When the APNU+AFC coalition won office last year May, the SCCR which was appointed by Nagamootoo and comprised attorneys C A Nigel Hughes, Gino Persaud and Geeta Chandan-Edmond, Lutchman and Haslyn Parris (who has since passed away).
The Prime Minister had explained that the remit of the committee was to give direction and scope within which the constitutional reform process should take place. He noted that the coalition parties had placed the issue of constitutional reform high on their agenda.
“We hope that the guidance contained in this report, which is the final report, would be able to give us both enough time and space in which we could achieve the… [changes] in our Constitution,” Nagamootoo had said in April of this year, when the report was handed to him by Hughes.
“Today, I am going to try to read this and see what I would be able to do to take it forward, first to the Cabinet and then we would announce the further stages in the process,” he added.
However, to date, except for President David Granger saying, during the airing of his weekly ‘Public Interest’ programme, that proposals for constitutional reform should come from the people following widespread consultations, no information has been forthcoming from government.
Stabroek News tried contacting Nagamootoo through the Department of Information for an update on the process. This publication was told by Director of Public Information Imran Khan to send questions via two email addresses given last week Tuesday and this was done. But up to press time last night there was no reply from the PM’s Office.
Contacted, Hughes who was Convenor of the SCCR said it would not be appropriate for him to speak on the report he had submitted to the Prime Minister. However, he said, “My personal view is there is no appetite for constitutional reform.”
In the SCCR report, the group stated that it saw the completion of the entire constitutional reform process within 18 months and recommended a reduction of immunities for the President, limiting the powers to prorogue or dissolve Parliament, and excluding the Attorney General from Cabinet so that the holder of that office remains unbiased and impartial.
A three-tiered reform system has been recommended by the body, where a group of legal experts on the Constitution Reform Commission (CRC) will prepare a draft document encompassing some of the SCCR’s recommendations. This will then be distributed to stakeholders including representatives of political parties and civil society. The CRC will then be expanded to include representatives of political parties and civil society. The expanded CRC will then deliberate on submissions received and prepare a report to be perfected by its legal experts. This report will then be taken to the National Assembly for debate after which a referendum or some other method would be employed for the prospective adopting of the recommendations.
President Granger restated the need for broad consultations on constitutional reform as he did not want a “boardroom constitutional reform,” but did not give any indication as to a timeline for the process after being asked whether it would be pursued vigorously or whether it would be placed on the backburner. He did say that his administration will be proceeding to discuss that report more fully.
“It is my view that given the controversy that has surrounded Constitution reform… literally for nearly 40 years, we need to go to the people, find out what the people think, we need to have consultation and we need to listen to them,” Granger had said in June this year.
“My view is that the people know best and you better consult them. So yes, if it involves… taming… the powers of the Executive so let it be, but let the people speak but don’t let us try to tell the people what to think. Let us find out what they need,” he said, even as he urged outreach to communities to “find out what the people really want to see in their Constitution before we tell them…”
Excuses
But Ramkarran said this seems like excuses as the President has the authority to direct the form the reform process consultations should take.
“The President had said that the people must give their views. There was an implied criticism with the report, to the fact that it contained nothing in its recommendations that the people will give their views. He was saying that he doesn’t want a constitutional reform process where people sit down in a room and write a Constitution for Guyana. The report did say that there would be consultations with the people, and even if the report were not to make that absolutely clear, the government in its decision on the process can make that clear. They can tell them what they want. The process has to be agreed, so that he can say, and make it clear saying ‘This is what we want and this is process we are going to have.’ They need not delay the process because they can order that to happen,” he said.
“I think there is a deliberate effort to slow down constitutional reform and we have to keep pressing the issue. I do not think they will start the process unless public opinion is brought to bear on the matter, not only more but stronger opinion,” he added.
The former speaker of the House reasoned that the government needs to engage the opposition if it is serious about achieving constitutional reform, given that most bills need a two-thirds vote to be passed.
But Ramkarran said the PPP/C is not enthusiastic about having constitutional reform because it feels that it could win the 2020 general and regional elections and wants the Constitution to remain the same, since the laws governing the President’s rule would not change.
“The opposition needs to be engaged in the process and therefore the government should have had them on board long before now, including in the committee that was established. The opposition has not indicated any enthusiasm for constitutional reform either… they are all afraid that the power of the presidency will be affected in any constitutional reform and they don’t want that to happen. They talk about it only in opposition…”
He added, “What we have is both major parties very comfortable with the powers of the President and what the current Constitution says. So unless there is more vigorous public opinion brought on the matter… nothing is likely to happen. …The issues on the table as it relates to the President are his extensive powers, the President’s immunity and the manner in which they can be elected. They are afraid of what will come out of the process.”
For Professor Lutchman, getting the process started will be much easier than obtaining a two-thirds vote, to amend current archaic laws in Parliament.
“You cannot have constitutional reform, for the most part, unless both parties agree because a two-thirds vote is needed and that is not currently within the control of the APNU and the AFC. If you are thinking constitutional reform the PPP must agree to that. There are certain provisions of the Constitution that clearly need change. Part of the problem, and this is a personal opinion, is that governments very often do not look at the matter objectively,” he said.
“I can recall on one occasion, President [Bharrat] Jagdeo, as he then was, said that the Constitution of Guyana was the best in Caribbean if not the best in the world. Do you think he will say the same thing now? That is the question. In other places it is because a large section of the population, including the political parties would see weaknesses in articles of the Constitution and they will agree that certain changes should be made. Not here,” he added.
Political culture
The former University of Guyana vice-chancellor said Guyana’s complex political culture stagnates processes like constitutional reform and for that to change, the mindset of politicians has to change.
“So often it is not the Constitution itself that is at fault but it is the political culture in the society. A culture which says ‘We don’t agree on matters, we cuss out each other and even when there is an indication that the public interest requires that the political parties agree, we will not.’ So even if you change the Constitution and you put certain provisions in place, nothing will happen,” he said.
He made reference to the appointment of a Chancellor of the Judiciary and Chief Justice. Lutchman posited, “For the Chief Justice and the Chancellor to be appointed the leader of the opposition has to agree, they have not been able to agree and what do you have now? [Justice] Carl Singh has been acting as Chancellor and [Justice] Yonette Cummings-Edwards is acting as Chief Justice because the parties can’t agree. In other places, … they agree that in the public interest this or that is the best thing to develop. However, in Guyana, political parties and their leaders maintain their positions that they are not changing.
“A Constitution does not work but it has to be worked and how it works is dependent on the people working it. When the 1980 Constitution was introduced, they called it the Burnham Constitution. Dr Jagan [former president Cheddi Jagan] condemned it and all of that but you see when he got in power under that Constitution… it was a different matter.”
Lutchman bemoaned the acrimony between the two political parties saying it adds to a stalemate on constitutional reform.
“It will be very difficult to achieve in practice. I am saying for the political culture that is here and also sustained by the ethnic divisions you have in this society, constitutional reform will be difficult. I think we need a change in the political culture and if you succeed in that perhaps constitutional change might be possible. When I say change …it is certain fundamental issues… In our context, let me give you an illustration. Provisions were made for Members of Parliament, when they attend Parliament that they get an allowance and so on …they abused it and regardless of party. The norms are that you were not supposed to do it and we will condemn you… that did not happen. Members from both parties abused it…,” Lutchman stated.
“In the USA, one time a member of the GOP shouted out at President [Barack] Obama ‘He is a liar.’ Do you know who condemned that man most fiercely? Members of his party. Not the Democrats, the Republicans. They told him in essence, ‘You cannot treat our President that way. He is our President. But we don’t have that in Guyana. You have to hold the ministers and parliamentarians accountable for their actions. Kamla [former prime minister of Trinidad and Tobago Kamla Persad-Bissessar] you know how many she dismissed? But here in Guyana we don’t have that. The first thing they do is protect their members. I don’t know, probably they see them as a source of embarrassment to them and it don’t matter what the offence is, they don’t come down on their members. But it should be that you break the law, regardless of what you bring, you have to go. We haven’t evolved to that state in Guyana as yet but sometime soon, I hope,” he added.
Static instruments
Speaking to both government and opposition, the former member of the Board of Trustees of the Caribbean Court of Justice (CCJ), shared some advice on going forward with constitutional reform, as he pleaded with them to put the nation’s interest first before self and party.
“Constitutions are static things and it is as if you build a house. You build it but the people living in it make it different. You can draft a Constitution and the architecture is perfect but it depends on who is working it and the values they bring to bear. It is not constitutional reform as such, but the culture which you bring to bear when you are working that Constitution.
“Constitutions are static instruments with which you have to render dynamic by working them, and it is the people who make them dynamic,” he said.
Asked if he felt that the SCCR’s work was sufficient to start the constitutional reform process now, Lutchman said, “Yes but that is only part of it. There are other stakeholders. You have the business people, human rights association, and the churches all of those… You have to get them into the process. But ultimately somebody has to make the decision. That is part of the problem.
“When it comes to putting into effect all those ideas gathered, Parliament will have to be the body that will have to enact those changes and you will need that two-thirds majority and you can’t get that here so easily at this time.”
