Dear Editor,
Lincoln Lewis continues a dangerously flawed interpretation of the constitution. He fails to acknowledge the universal de facto versus de jure principles in assessing the illegitimacy of the present constitution. He mistakenly believes people power is possible through this instrument. He fails to recognize the gross imbalance of power in the constitution that centres virtually all state power in the hands of the executive presidency.
Recently, his writings have perpetuated the myth that the executive powers of the constitution are not out of place with executive powers in other constitutions without recognizing rudimentary legitimate and democratic prerequisites for the attainment of presidential power in those systems led by separate election of the president. His commentary on the immunity clause is instructive in this regard. Finally, Lewis is falsely labouring under the belief that the enforcement of the constitution can somehow produce democratic dignity to Guyana. This is a delusion of spectacular grandeur and a descent into troubling thinking that must be arrested. I will examine in a series of letters the constitution from my layman’s perspective to bring to the fore the truth about this nefarious and illegitimate document. It will confirm the illegitimacy of this document and the need for a new constitution out of a full, free and fair referendum. Article 46 (1) allows the President, apart from the Parliament and notwithstanding Guyana’s dual citizenship recognition, to strip any born Guyanese of his/her citizenship if they acquired citizenship or exercised citizenship rights in any other country than Guyana. The real intent of this article was for the presidency to block any overseas Guyanese political opposition or charismatic overseas Guyanese from returning home to confront the presidency.
Article 50 states “The supreme organs of democratic power in Guyana shall be–– (i) the Parliament; (ii) the National Congress of Local Democratic Organs; (iii) the Supreme Congress of the People (iv) the President; and (v) the Cabinet.” In one of the most macabre absurdities of modern society, this is likely the first constitution, democratic or autocratic, that fails to list the Judiciary as a supreme organ of democratic power. In effect, if it ever comes to that critical juncture, the President could disobey a judicial ruling against him by arguing the judiciary is not a supreme arm of the state and that the presidency trumps the judiciary. The other catastrophic reality with Article 50 is that the President is either wholly or an equal part of every arm of the state listed under Article 50. He is an equal part of the legislative branch; Parliament and of the democratic Congresses. Cabinet is appointed at the President’s whim and completely under his control. No other executive presidency in the world today has this shameful abuse of power.
What is really frightening about this alarming executive power is that the president is not elected separately from the legislature. There is no separate election for the president, an election that actually gives democratic legitimacy to the presidential veto (contrary to Lewis’ flawed viewpoint on this issue). The president sneaks in under elections for the legislature and then gets to turn around and dominate the legislature by being able to prorogue or dismiss it (Article 70) or by having his unelected ministers automatically become non-voting members of the legislature (Article 105) where they can speak and defend the autocratic excesses of the president. Up to four Ministers who are unelected to the National Assembly can be appointed by the President (Article 103(3). There is no minimum number of ministers required by the constitution so conceivably the President could appoint four unelected persons as ministers and in doing so bypass the requirement for any ministers to sit in the National Assembly, which will mean there is no answerability from the government in the Assembly. The President’s party still sits in the Assembly but none of the party’s MPs are ministers and the opposition is unable to demand answers from the government.
The Prime Minister is not elected alongside the president as occurs in presidential democracies. The Prime Minister is appointed by the President under Article 101. The National Congress of Local Democratic Organs provided for under Article 79 is for election of local government representatives. The problem with this article is that the presidency holds the power to determine whether local government elections can occur and thus, whether a Congress of Local Democratic Organs can even exist.
Further, Article 79(2) gives the President the power to dissolve the Congress at any time. Article 82 states “There shall be a Supreme Congress of the People of Guyana, which shall consist of all members of the National Assembly and all members of the National Congress of Local Democratic Organs.” Article 83 forces the Supreme Congress of the People to advise the President on any matter he refers to it. Thus, these two legislative entities, separately elected by the people of the country and even if they are controlled by the opposition, are at the beck and call of the Presidency. In truly medieval display of arrogant power, Article 84 gives the absolute power to the President to determine when the Supreme Congress of the People shall meet while Article 85 gives the President the power to dissolve or prorogue the Supreme Congress of the People, which in any event is so dissolved or prorogued when the Parliament is. It is clear that Article 50 is nothing about democratic power. It is a sham of the highest order that confirms the devastating reach of an oversized executive power suffocating the state.
Article 70 is familiar to us now with prorogation. Dissolution of Parliament is also at the whim of the presidency, even when he/she is elected by only a plurality of voters, the majority of whom voted for an opposition National Assembly. Article 99 vests the executive authority in the Presidency alone. Even in pure presidential systems, executive authority is often vested in the presidency and the Cabinet or some form of executive council of which the President is an equal partner. Article 110 states “There shall be an office of Minority Leader and appointments thereto shall be made by the President.” Imagine the President, who may secure less than a majority, appoints the Minority Leader. The danger with this provision is that the President may choose to appoint an opposition party leader whose party did not get the most votes among opposition parties as Minority Leader because that individual is seen as more malleable.
Article 127(1) provides “The Chancellor and the Chief Justice shall be appointed by the President acting after consultation with the Minority Leader.” However, Article 127(2) creates a loophole for the President to appoint someone if no appointment occurs under Article 127(1). Therefore, as has happened, the President refuses to appoint anyone and then after sufficient delay, relies on Article 127(2) to bypass consultation with the Minority Leader to get his choice to act in the role. Lewis would be keen to pay attention to the de facto versus de jure aspect of this provision.
Under Article 161, the President appoints the Chairman of the Election Commission, the individual who is responsible for announcing the official results of the election. The President also gets to appoint three more members out of the total seven members of the Elections Commission.
Therefore, the President gets to select four out of the seven Commission members, including the Chairman. All of this extreme powers of the presidency comes from a sneaky manoeuver of the presidency getting power through the backdoor by piggybacking on the election of the legislature and then using that power to crush the state. The bottom line here is these few Articles show how atrocious this present constitution is. More tellingly, the PPP has not yet unleashed the full dictatorial possibilities of this constitution and if it does, it will plunge this country into grave turmoil.
Yours faithfully,
M. Maxwell
