Dear Editor,
The political aftermath of the November 2011 general elections has spawned protean views, some of which may be rooted in uninformed analyses of the constitutional architecture which governs the State of Guyana. Given the popular misconceptions emanating from readily accessible sources unfamiliar with the peculiar intricacies of our 1980 Constitution with amendments to 2003, it is not unsurprising that the wider populace, if made none the wiser, has been left in a comatose state of dysfunction. This indisposition has not been addressed or alleviated with the requisite pristine clarity by the electoral polity whose current elevated status was determined by this latest constitutional plebiscite. The 1980 Constitution has popularly and invariably been described as a Westminster-style one but, apart from its fundamental rights provisions and the separation of the three arms of state ‒ the executive, legislature and the judiciary, there is every reason to conclude that its authors were predisposed to craft and embed a self-perpetuating regime quite alien to the colonial establishment or Commonwealth experience, dictated by the Statute of Westminster 1931 which governed the relations of the United Kingdom and its Dominions. At best, it may be conceded that our constitution is a hybrid one, partially Westminster and, uniquely Guyanese ‒ an amalgam of those of Soviet Russia, Cuba, Eire, India, Germany, etc. Hence, the litotes attaching to its title: The Constitution of the Co-operative Republic of Guyana. As it was then, and our recent experience has clearly demonstrated, notwithstanding the universal reliance placed on the sanctity of its provisions, our republic is anything but co-operative!
A brief history of Guyana’s evolution after independence ought to be stated for ease of reference, especially for those who are not old enough to have witnessed the lowering of the Union Jack and the unfurling of the Golden Arrowhead on the stroke of midnight on May 25,1966, when the Guyana Independence Act 1966 and the Guyana Independence Order 1966 ushered in the nascent State of Guyana. The constitution which regulated its then affairs was indeed a Westminster-style one and, unquestionably, was modelled after those which governed formerly British colonies whose independence preceded Guyana’s. However, on the 29th day of August, 1969, Resolution No. XXVI was passed in the National Assembly in the Second Parliament of Guyana under the proleptic provisions spelt out in the 1966 Constitution declaring that Guyana shall become a Republic on the 23rd day of February, 1970, the date chosen in recognition and commemoration of the revolt of enslaved peoples on the 23rd day of February, 1763. Hence, the construction of the statue of Cuffy (Kofi) on the site now known as the Square of the Revolution. Guyana continued to be governed by this constitution until 1980 when the current one, in its unamended form, was promulgated under S4 of the Constitution of the Co-operative Republic of Guyana Act 1980 which was given the assent of President Arthur Chung on the February 20, 1980. The preparation and adoption of the 1980 Constitution were made possible by the enactment of the Constitution (Amendment) Bill 1978 on the 12th day of May 1978. Its explanatory memorandum is worth restatement, if only to vindicate the view that the 1980 Constitution was by its architectural differential far from Westminster in style or form.
“The existing Constitution is too rigidly rooted in the structures of the colonial past to serve as an efficient vehicle for transforming the society into the kind of society it needs to become if it is to survive in the modern world. It is necessary to adopt a new Constitution more reflective of the national ethos. This Bill seeks to facilitate the introduction of such a Constitution.”
A moment’s reflection could only lead to the ineluctable verdict that it was the intention of the authors to distance Guyana from its colonial, vestigious entrapment, laying the bedrock for the parliamentary dictatorship that followed, secured by a patina of democratic norms.
By S10(2) of the 1980 Act the Prime Minister assumed the office of President as if he were elected thereto and by S11, the elected person ranking next in seniority after the office of prime minister became the new prime minister, as if he were so appointed. The former ceased to be a member of the National Assembly and the latter became the leader of the government business in that august assembly. This re-alignment pre-dated any election under the 1980 Constitution.
In the pre-1980 dispensation the president was appointed for 6 years after being elected by the National Assembly and he was titular head of state, with no executive power, ie more or less ceremonial for all intents and purposes. This must be contrasted with the office of president under the 1980 Constitution, Arts 89 and 99(1) of which make him the head of state and the supreme executive authority, ie both heads of state and government. According to Art 177 of the constitution, the president is so declared by the chairman of the Guyana Elections Commission as the person so designated in the list of candidates of the party that receives the most votes in a general election, ie he is an elected person as is any other elected member of the National Assembly. Art 99(1) vests the executive authority in him, ie the power to govern, and the government of which he is the head, consists of cabinet ministers (Art 106) and any other minister or officer subordinate to him.
Consistent with Art 160 and Art 52, the National Assembly consists of such number of members as shall be determined by the Assembly who are elected in accordance with the provisions of the constitution. In addition to these persons, the president may appoint not more than four ministers and two parliamentary secretaries from among persons qualified to be elected, even if not so elected, to be members of parliament (Art 103, Art 105 and Art 186). These latter are not eligible to vote for the purpose of the passing of legislation. Contrary to the asseverations of many vocal public figures, including members of the National Assembly, this Assembly is not coterminus with Parliament, one of the arms of the state, since Art 51 declares that the president and the National Assembly constitute the Parliament.
While parliamentary sovereignty is assured subject to the constitution which is supreme (see Massiah C in Mohamed AN 41 WIR 176) the National Assembly is not so exalted. It is therefore this author’s submission that the contention of APNU/AFC that they hold a parliamentary majority by virtue of their one (1) member advantage in the National Assembly is linguistically without merit, and for all intents and purposes exists only in the realm of myth, if Art 51 is given its ordinary and natural construction. However, the president straddles two arms of the state, ie the Parliament and the executive. Thus in refusing to assent to any Bill he is exercising his undoubted right as an elected candidate at the general elections! It is also therefore an act of political self-delusion to describe the government as a minority one. Using the most rudimentary arithmetic, there is a parliamentary dead heat and I respectfully submit that no differential can be detected by any known metronomic or videographic, instrument. Constitutional reality will always trump political rhetoric although it may be conceded that the latter notion may be more appealing to a section of the electorate without the irrefragable guidance culled from the provisions set out above. The president’s role in the National Assembly is reinforced in Art 107 which empowers him to appoint a minister or parliamentary secretary to be answerable to the National Assembly in relation to any matter the responsibility for which has not been assigned to a dedicated minister.
Therefore, unless meaningful expression is given to the “co-operative” construct of our 1980 Constitution as a possible resolution of the impasse, the quicksands of political expediency inherent in Art 106(6) and (7) for the compulsory resignation of any government may yet prematurely engulf and quash the electoral fortunes of some of the current intransient members of the National Assembly. It may be salutary to note that the mechanism and procedure for the termination of the life of Parliament by prorogation or dissolution under the 1966 Constitution (Arts 81 and 82) differed fundamentally from that which Art 106(6) and (7) portended, under the 1982 one.
Yours faithfully,
Justice Charles R Ramson SC
