Constitutional formation in divided polity not for amateurs

Two weeks ago I said that for us to grow into a “normal” political society we should consider putting in place three transitional measures. Based on the usual premise that the president should have the right to hire and fire his cabinet, parliamentary parties should be represented in that cabinet in proportion to their representation in the national assembly, but the president must always have a workable majority in the cabinet, even where there is a hung parliament. And if an issue in the national assembly is declared to be of “communal interest” by an agreed upon percentage (40%) of the assembly, that issue should only be passed with the special majority. Following upon this, last week I proposed a political environment which I believe could help us to grow into a normal political society.

In competitive electoral politics reality takes second place to belief and by “normal” politics I mean a political process in which the various ethnic groups and their leadership believe and act as though ethnic alliances are no longer the main determinants of the nature and outcomes of the government.

There are those who believe that the current situation in which the Alliance For Change holds the balance in the national assembly already points in the direction of consensual governance and may well also suggest that a shared governance regime is no long necessary.  According to one line of argument, if our constitution did not state that the presidency had go to the party with the largest plurality and post-election deals could have been made about the president and all, shared governance would have been the outcome. There is no denying this fact, but consider what could have been the possible outcomes.

Such a situation could have led to an all party or PPP/C/APNU coalition, which would have placed the government overwhelmingly in control of both the executive and the legislature, thus destroying a meaningful separation of powers. It could have led to a PPP/C/AFC coalition (I am aware of the AFC’s pre-election statements that it would not form a coalition with either of the two larger parties. However, that commitment was made in the context of the current constitution, which does not allow parties to make post-election arrangements that could give them the presidency) and this would have made ethnic alienation even worse. And of course, there could have been an APNU/AFC coalition, which would have locked out a major ethnic group, again not helping our situation. For me then, none of the above possibilities constitutes a good outcome and thus the present need for shared governance and the transitional measures proposed here.

I have already dismissed the usual parliamentary-type coalition, in which the parties get together in government and control the parliament, as overly dangerous to our freedom. My support is for a presidency, recognizing that it has a natural tendency to concentrate power, which I have attempted to limit, but also that Guyana will be ill-served by an enfeebled presidency. Quoting Scott Mainwaring, Arend Lijphart points to the latter problem.  “… under democratic conditions, most Latin American presidents have had trouble accomplishing their agendas. They have held most of the power to initiate policy, but they have found it hard to get support to implement policy. If my analysis is correct, it points to a significant weakness in democratic presidencies.” (Lijphart, Arend – 2008- “Thinking About Democracy” Routledge). Yet we should not overstate this case, for the president would retain a temporary veto over legislation and the right to dismiss any of his cabinet. Indeed, the personal ambitions of cabinet members would give him significant leverage once he also recognises that removing a member without good cause may lead to a constitutional crisis. So we now consider the transitional measures.

There is a school of thought that holds that, based on the proportion of their seats in the national assembly, all parliamentary parties should have the right to be a part of the executive. Notwithstanding the checks and balances we have already constructed, given my concern about the absence of an effective opposition, I tend to be with those who argue that parties should attain some threshold of representation (15% of the seats) in the national assembly before having the right to join the government. This may at least leave a token opposition which has absolutely no connection with the government. Further, to allow the president some additional freedom of choice and some more symbolic leverage over his cabinet, not unlike what happens in the present elections commission, the parliamentary parties could consider presenting the president with more than one candidate for each position they are awarded.

It would be unconscionable to expect a president to run a cabinet in which he does not control a majority. Thus, at all times the president, through his party should have a workable majority in the cabinet. This will in no way prevent inter-party haggling where the president’s party lacks the majority and needs other support for him to win the presidency. After all, giving support to enable a candidate to win the presidency need be no guarantee of continued alliance.

It does not take much for one to realise that nothing I have said so far prevents the president’s party from controlling the national assembly and doggedly supporting him, thus the condition that once an issue is declared of “communal interest” in the national assembly by, say a 40% vote of that assembly, it can only be passed by a special majority. This kind of condition is found in other constitutions but to prevent its abuse it has to be properly constructed and rooted in some clear principles which can, if necessary, be arbitrated or judicially decided upon even before it is placed for the final vote.

In my view, there is no doubt that we need a more consensual system in which ethnic and gender equity is entrenched in all facets of social life. However, the suggestions contained in these articles indicate that constitutional formation in a divided polity is not for amateurs such as me.  The process is extremely complex and requires the input of real experts. Of course, if we are to gain the most from such an interaction, we need an open-mindedness rooted in a clear, if general, prior understanding of the possible advantages and pitfalls of the course upon which we are embarked.

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