Why the need for a Constitutional Reform Commission when there is a Parliamentary Standing Committee for Constitutional Reform?

Dear Editor,

Constitutional reform was a major platform upon which the APNU and AFC campaigned for the 2011 General and Regional Elections. In the campaign for the 2015 elections, with the two parties combined, the call for constitutional reforms hit a fever pitch. Indeed, it featured as a prominent objective in its 100 day plan, if elected to government. However, I always sensed that the APNU+AFC was never genuine in this call. I always felt that they were being dragged along by the AFC’s then Chairman, Mr Nigel Hughes. Generally, the diminution of presidential powers and immunities was always the axis upon which the rhetoric of constitutional reform orbited.

However, deep down I always knew that once power was tasted by those who were so hungry for it, the desire to reduce, miniaturize and devolve that power would recede into oblivion. A number of events which ensued proved me correct. To avoid important tenets of the Cummingsburg Accord, the APNU ingeniously invoked the Constitution; so for example, Prime Minister Moses Nagamootoo was prevented from chairing Cabinet because the Constitution names the President as the chairman of Cabinet. How these elementary constitutional provisions eluded the battery of lawyers in the AFC at the time they negotiated the accord, baffles me to this day. Thus begun a journey to thwart the promised constitutional reforms.

Expectedly, there was no movement in the direction of constitutional reform until months before the 2016 budget, when the Prime Minister announced the appointment of a Steering Committee on Constitutional Reform. Character-istically, the Prime Minister wasted no time in using the occasion as a grand photo opportunity with him posing with the members of this committee. The process then hit an inexplicable hiatus until the 2016 budget. In the 2016 budget, $80 million was allocated for the work of this committee. In the Committee of Supply, I enquired of the Prime Minister, with whom did he consult in the selection of persons for this committee. His response was that he consulted with “his colleagues in government.” I informed the Prime Minister that in the context of government, “consultation” connotes an engagement extrinsic and not intrinsic to government. In short, there was no consultation. The work of this committee was very low key. This was deliberate. The People’s Progressive Party (PPP), the only opposition in Parliament and the largest single political representative of the people of this country, was not consulted. In fact, the nation was only reminded of the existence of this committee when it submitted its report to the Prime Minister. Perhaps, had it not been for the Prime Minister’s peculiar crush on the camera, the public would have been none the wiser. The event was converted into a Kodak moment and disseminated via the press. To date that report has not been made public. Only sporadic references are made to it when it is politically convenient to do so. The truth is, that it is all political sophistry. The APNU+AFC are not genuinely interested in constitutional reform. The rejuvenated activism which we are now witnessing in the press, is nothing but smoke and mirrors.

I am fortified in my view, because APNU and AFC have been in control of the National Assembly since 2011, that is, for six years. The President, as Opposition Leader, caused himself to be elected as Chairman of the Standing Committee for Constitutional Reform during the 10th Parliament. In that committee, as in every other committee of that Parliament, the opposition enjoyed a majority. No more than three meetings were held in three-and-a-half years. Absolutely nothing of substance was done. In the 11th Parliament, Attorney General Basil Williams, was elected chairman of this committee. Again, the government enjoys a majority. Apart from the meeting to elect the Attorney General as Chairman, this committee has not met in over two-and-a-half years. I have been a member of the committee in both Parliaments.

Almost every day before the Constitutional Court, the Attorney General advances the outmoded and the constitutionally heretical contention that the President’s actions and decisions are beyond judicial review or inquiry and cannot be challenged in any court of law. This argument was roundly rejected by the Privy Council only a few weeks ago and has been authoritatively destroyed by the Guyana Court of Appeal over fifteen years ago. Yet, the Attorney General laboriously persists with it. Such an anachronistic posture does not come from the legal advisor of a government that has any intention of reducing executive or presidential powers.

The government was boxed in a corner last February, when a United Nations team visited Guyana to review the state of constitutional reform in the country. The government was forced to give a commitment to accelerate the process. This was followed by a similar intervention from the Carter Center in collaboration with the United Kingdom (UK), in April this year. The coalition government could no longer dither.  It is this which has catapulted the Prime Minister, who has a lot of time on his hands, into action. Ever since, he has inundated the press with “updates” on the constitutional reform process. Over the past few weeks, “the process” has moved into overdrive. Two weeks ago the nation was informed by the Office of the Prime Minister that a “Constitutional Reform Commission Bill” will soon be tabled in the Parliament.

In an interview with the press, I pointed out that the establishment of such a commission is both unnecessary and superfluous, since we have had a Parliamentary Standing Committee for Constitutional Reform established by the Constitution, our supreme law, since 2001. The mandate of this committee is to continually review “the effectiveness of the working of the Constitution and making period reports thereon to the Assembly, with proposals for reform as necessary.” To assist it in its work, “the committee shall have the power to co-opt experts or enlist the aid of other persons of appropriate expertise, whether or not such experts or other persons are members of the National Assembly” (See Article 119 (A) of the Constitution).

It begs the question, therefore: why the need for a Constitutional Reform Commission by ordinary law in the face of Article 119 (A) of the Constitution? This article confers on the committee it created a very encompassing mandate. Is this another opportunity to waste millions of taxpayers’ dollars and to provide jobs for political sinecures? The idea for the establishment of such a commission by statute, may misguidedly owe its genesis to the Constitutional Reform Act of 1999, which established a similar commission. This idea, however, is otiose, because in 1999, we did not have Article 119 (A) of the Constitution. In fact, Article 119 (A) is a product of the Constitution Reform Commission of 1999-2001. The clear intention was to avoid the establishment of another ad hoc CRC, but instead, to have one of permanence.

Earlier this week, in a media release, the Prime Minister announced that the government took a decision that “the Constitutional Reform and Consultative Bill will be laid in the National Assembly before the Parliamentary recess in August.” You will note that the word “Commission” is now absent from the title of the Bill. One can only hope that my observations were taken on board. However, I now have another query: why is a Bill necessary for constitutional reform? A Bill was required in 1999, because we did not have Article 119 (a) of the Constitution. All that is needed now, is for a set of Terms of Reference to be crafted and handed to the Standing Committee on Constitutional Reform. That committee has a mandate to call in aid additional staff and to co-opt any number of experts it may deem necessary in the discharge of its responsibilities. Clearly, it would have the power to hold public consultations under existing Standing Orders, both within and without the precincts of the Parliament. This proposed Bill, therefore, is another pappy show and publicity gimmick. This Bill is wholly unnecessary. It may be enacted but will constitute another colossal wastage of scarce public monies. The process is going nowhere in the near future.

Yours faithfully,

Mohabir Anil Nandlall, MP

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