Last week, the Stabroek news (2018.02.24) published a letter by Vishnu Bisram under the caption “Jagan and the PPP broke their promise to revoke the Burnham Constitution”. This letter provides me with the opportunity to address a falsehood that has been peddled with alarming frequency by a misguided few.
Bisram wrote, “Jagan made a commitment in 1992 before the first democratic election was held that should he win the Presidency, his first act would be to replace the constitution. Jagan and the PPP broke their promise. …Nandlall and his colleagues, including Bharrat Jagdeo and Frank Anthony, are on record as supporting the Burnham constitution.”
I am indeed, disappointed that a person of Bisram’s political acumen and academic stature would make such careless statements. Neither Dr. Cheddi Jagan, nor the People’s Progressive Party (PPP) promised to “revoke” the 1980 “Burnham Constitution”. Neither was there a promise to do so as a “first act” of Government. Anyone familiar with constitutional workings would know that either of those promises would have been reckless to make because they are both, practically and politically, nearly impossible to deliver. Revoking a Constitution is a highly technical, financially exorbitant and time-consuming process and it would have been politically suicidal for the PPP to attempt any such thing as its first act of Government after the 1992 elections, having regard to the charged political environment pervading at the time. More on this will have to be the subject of an article set aside for that purpose.
Prior to the 1992 elections, what Dr. Jagan and the PPP promised was “constitutional reform” with emphasis on the reduction of the heavy concentration of power in the Executive, generally and the President, specifically. As soon as it became reasonably possible, the PPP commenced a course of action designed to deliver on this promise. Thus, in 1994, a Constitutional Reform Committee of the National Assembly was established, headed by then Attorney General, Mr. Bernard DeSantos SC. Unfortunately, before this Committee could have completed its work, the life of that Parliament came to an end. Then came the 1997 elections. The PPP’s victory at the polls brought about widespread protests, burning, looting and street violence instigated by the PNC. An intervention by Caricom produced the Herd-manston Accord which embraced constitutional reform.
In consequence, by an Act of Parliament, piloted by the PPP/C Government in 1999, a broad-based Constitutional Reform Commission was legally established. This Commission comprised the political parties, the religious organisations, the private sector, the labour movement, ethnic based organisations, women’s organisations, Amerindian organisations, farmer’s organisations and important civil society stakeholder organisations such as the Guyana Bar Association. Signifi-cantly, this Commission was endowed with an unfettered statutory mandate to review the Constitution in its entirety. In the discharge of this mandate, it was empowered to consult “…within the widest possible geographical area, with as many persons, groups, communities, organisations and institutions as possible including, but not restricted to, religious and cultural organisations, political parties, youth organisations, high school and university students, women’s organisations, private sector organisations, professional bodies and the media.” Ralph Ramkarran S.C. chaired this Commission and Haslyn Parris was its secretary.
I pause here to point out that the PPP did not seek to monopolize nor dominate this initiative, but rather, magnanimously, delegated it to a multiple-partisan body, vested with an untrammelled mandate to consult with all and sundry across the length and breadth of Guyana with a view of reviewing the Constitution in its entirety.
This Commission worked for over two years and produced over 200 recommendations, which were culled, refined and crystallised into over 180 amendments that were all incorporated into the 1980 Constitution.
A distillation of these recommendations and consequential amendments can be summarized thus: there was formidable diminution of executive powers, including the powers and immunities of the President; there was a discernible devolution of most of these powers to the Legislature, the Political Opposition and other agencies of State, including, the Local Democratic Organs; there was expansion of the powers of Parliament and the establishment of a series of checks and balances to increase scrutiny of the executive’s exercise of power and an appreciable augmentation of civil liberties and human rights.
It would be impossible for me to elaborate on or even list the reforms made. Nevertheless, I will highlight only a few.
In terms of the Executive President, the controversial immunities with which the President was endowed for acts committed after he demitted office, were removed and what now exists is a compendium of immunities, which most Heads of State throughout the Commonwealth enjoy. The power which a President enjoyed to dissolve a Parliament, moving to remove him from office was excised and the number of votes required to move a Motion of that type in the National Assembly was reduced. The powers which the President had to unilaterally appoint a Chancellor of the Judiciary, a Chief Justice and a Chairman of the Guyana Elections Commission (GECOM) are now shared with the Leader of the Opposition. The power that the President hitherto enjoyed to unilaterally appoint members of all the Service Commissions is now shared with the National Assembly and the Leader of the Opposition. The President is now mandated to act upon the recommendations of the Service Commissions. A discretionary power, which existed before has been removed. A two-term limit has been imposed on the Presidency. In most of the important constitutional appointments where the President enjoys the power of appointment, he is mandated to engage in “meaningful consultation” with the Leader of the Opposition and “meaningful consultation” is now defined by the Constitution, itself.
In terms of Parliament, an Opposition, now for the first time, can remove a Government by virtue of a no confidence Motion. Standing Committees in the Parliament have been constitutionalized. The National Assembly now recommends persons to be appointed on the various Service Commissions and on the Rights Commissions established by these constitutional amendments. The fiscal autonomy and independence of a number of institutions of the state, including the Judiciary, the Auditor General Office and a host of other State “watchdog” agencies have been constitutionalized. An independent Elections Commission, differently constituted, has been established. A modified electoral system was promulgated with greater geographic representation.
In terms of individual rights, the fundamental rights and freedoms section of the Constitution was expanded and new rights introduced. For example: the right to work, the right to pension and gratuity, equality for women, indigenous peoples rights, the right to establish private schools etc., have all been made fundamental rights and freedoms of the individual. All international treaties dealing with human rights to which Guyana is a signatory, were to some extent incorporated and made part of our Constitution and those charged with the responsibilities of interpreting the human rights embraced by the Constitution, are mandated to take into account the provisions of these international treaties. None of these were in the 1980 Constitution. The Rights Commission for example: the Indigenous Peoples Commission, the Woman and Gender Equality Commission, the Human Rights Commission, the Rights of the Child Commission, were all established under these amendments. So was the Public Procurement Commission.
The above is by no means exhaustive but it provides a fleeting insight into some of the changes, which were made to the 1980 Constitution. These changes, cumulatively, have immeasurably, liberalised the democratic polity, enhanced the juridical structure and augmented the human rights content of the Constitution rendering it radically different from the 1980 document. Therefore those who continue to propagate the view that the PPP did not change the 1980 Constitution and that the 1980 Constitution is alive, are not speaking from a position of knowledge, but are parroting the views of the uninitiated.
Should there be more changes? Of course! Constitutional reform, like life and society, is an ongoing and evolutionary process. As an organic document, a Constitution must always remain fluid and dynamic, ready to adapt to the vicissitudes and exigencies of the evolving society in which it operates.