The Cummingsburg Accord does not collide with the constitution

Dear Editor,

 

President Granger’s comments to Stabroek News that parts of the Cummingsburg Accord collide with the constitution and, accordingly, cannot be enacted and represent a confrontation with the democratic sanctity of this country.It must be noted that the Cummingsburg Accord stated “In reflecting the thinking and commitment to and for future constitutional reform it has been agreed that the Presidency will be reorganised along the following lines…” Clearly, the multitude of AFC and APNU lawyers crafting this agreement as well as David Granger himself who signed it (read before you sign) contemplated the constitution when creating the accord. It is evident from the wording that these individuals knew that these steps were intended as constitutionally safe arrangements. It is now democratically dangerous for anyone, including the very man who signed the Cummingsburg Accord, to claim it collides with the constitution.

Where is this claimed collision? The constitution allows for political parties. Political parties cannot exist without membership from the citizenry and that membership must be constitutionally open to the entire citizenry. The constitution allows for pre-election coalitions by political parties. These are contracts by public entities (political parties) for a public purpose. Logically and constitutionally, those parties cannot enter into a coalition while remaining distinct parties without an agreement. Thus, agreements must exist for coalitions to constitutionally exist. This makes the agreements to coalesce valid and constitutional. If there are further agreements respecting governance, these are equally valid except where they contravene the constitution. The Cummingsburg Accord states: “The President will delegate the following responsibilities to the Prime Minister…” The Guyana Constitution allows for presidential delegation of responsibilities to the prime minister. After all, the prime minister is, by virtue of Article 106, a mandatory member of cabinet. Article 101(2) makes the prime minister “…the principal assistant of the President in the discharge of his executive functions and leader of Government business in the National Assembly.” Note the word ‘principal.’ Delegation is patently intended with ‘discharge’ under Article 101(2).

Further, Article 99 specifically allows for the executive authority of the president to be “…exercised by him either directly or through officers subordinate to him.” Article 102 allows the president to appoint vice presidents to assist him in the discharge of his functions. There is no provision that prevents presidential delegation of responsibility. The constitution is replete with presidential delegation of responsibility. In fact, some may argue that the constitution goes further and allows presidential delegation of authority pursuant to Article 96 which grants the president the power to allow someone else to perform presidential functions for as long as the president allows.

Regarding the chairing of cabinet, again, the only constitutional crash here is the one falsely propagated by the President. The prime minister is allowed to chair cabinet in the absence of the president by virtue of Article 106. There is no constitutional compulsion that the president must attend cabinet meetings. The signatories to the accord clearly intended for the President to not chair cabinet. The President has a Minister of State sitting in cabinet to convey his positions, yet he continues to breach the accord and its democratic safety net by chairing cabinet. No decision made in cabinet will pass muster without presidential approval. The President retains ultimate authority. So, there is no conceivable reason for the President to continue to breach the Cummingsburg Accord by chairing cabinet. President Granger and PM Nagamootoo are in breach of the constitution by allowing the co-chairing since the PM, or anyone for that matter, cannot chair cabinet in the presence of the President. We are witnessing breaches of the constitution on top of the breaches of the Cummingsburg Accord.

Also, there is nothing that constitutionally prevents the PM “recommending Ministerial appointments and providing the organizational structures of Ministries for the approval of the President” since the President, subject to an Act of Parliament, retains ultimate constitutional power to establish such offices. So, this is not exclusive presidential authority, particularly when a President comes to power and faces an existing Act that assumes that power. Recommendation is not appointment. Nothing in this provision of the accord contravenes the constitution. Similarly, the “appointment of Head of Agencies and Non-Constitutional Commissions” by the PM do not contravene the constitution. There is a reason why the distinction was made between ‘recommending’ and appointing,’ as the non-constitutional agencies do not require the force of presidential authority. In fact, the accord specifies the President will appoint constitutional agencies, which is again the correct distinction. The National Assembly seat and cabinet split are within the constitution because the AFC and APNU contested as a single entity under the election laws.

Where is the evidence that the Cummingsburg Accord collides with the constitution, and even if it does, where is the evidence that such collision is unconstitutional? The continued demolition of this Cummingsburg Accord under the guise of the straw man of constitutional collision is destructive to this country’s democratic future. Because the accord does not breach the constitution, there is no need to wait for constitutional change for the accord to take root and to be followed. In fact, if pursued fully, the Cummingsburg Accord ameliorates some of the oppressive elements of governance in this country, as well as achieves constitutional change within a framework that actually does not require the constitution to be formally changed. Given the inherent difficulty in securing a two-thirds majority in the National Assembly as well as what will likely be this government’s natural disinclination to go to the people in a referendum, this is our best shot at achieving constitutional change.

Maybe it is time that President Granger finally holds a press conference and explains these constitutional collisions he is aware of. We are waiting.

Yours faithfully,

M Maxwell

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