Dear Editor,
This recounting of the “OATH CASE” brought by me against President Forbes Burnham soon after the 1980 General Elections is taken purely from memory and is therefore not word perfect.
The circumstances are that the 1980 Constitution had been imposed on the country. This recounting is timely as the present Attorney General publicly undertook on Globespan after the end of the 2020 Elections impasse a revision of the Guyana Constitution after full consultations with the citizens. He promised that the consultations will be thorough. Our experience is that a constitution can be imposed in spite of the fact that there had been in the post-referendum period after 1978, a Constituent Assembly sitting in the Chamber of the National Assembly, with much media publicity in the very restricted media of those days. I will now explain what I recall about the merits of the Oath Case and leave for later my reminder to the present population of how the 1980 Constitution was imposed.
The 1980 Constitution bore the label “The Peoples Constitution” by its promoters. It was promoted as the most advanced constitution in an ex-colony up to that time. Those who know it will recall that it described Guyana, among other things, as a country in transition to socialism. It was also declared as a secular state and my impression is that the old oath of office had been deliberately revised to reflect secularity. The Oath of Office in the Independence Constitution, and I hold no brief for it read – Oath of Office 1980.
GUYANA – The 1966 Independence Constitution – The Oath of Office
I, ……. … ……… …. ……. … ……… , do swear [or solemnly affirm] that I will faithfully execute the office of …. ,… . ……… …. …. …… without fear or favour, affection or ill-will and that in the execution of the functions of that office I will honour, uphold and preserve the Constitution of Guyana. So help me God. [to be omitted in affirmation.]
GUYANA – The 1980 Constitution – President – The Oath of Office
“I (name) do hereby solemnly declare that I will bear true faith and allegiance to the People of Guyana that I will faithfully execute the office of President of the Co-operative Republic of Guyana without fear or favour, affection or ill-will and that in the execution of the functions of that office I will honour, uphold, and preserve the Constitution of the Co-operative Republic of Guyana.”
Readers will kindly note that the 1980 Constitution removed the option of swearing with the words. “So help me God”, and left the office holder no option but the option of an affirmation. That was the new Oath of Office as passed by the National Assembly and approved by the President.
The highly controversial 1980 elections passed, the Presidential candidate of the People’s National Congress came to be sworn in by the Chancellor of the Judiciary. The ceremony was broadcast on the Government’s monopoly radio station and listeners heard the voice of the President taking the Oath of Office. As he complied with a prescribed requirement to my surprise, the President after reading the newly formulated Oath Of Office, added “and I do so swear so help me God”.
The President’s declaration struck me as an exercise of a privilege of power employed by him to present himself, rightly or wrongly, to a generally religious population as one of them.
His actions struck me as an abuse of power and privilege and I at once began to discuss it in this light with others who had been active in the anti-dictatorial struggle. Among them were lawyers who had taken a stand against the referendum of 1978 aimed at making another referendum on the new constitution unnecessary.
One of the chief organizations agitating against the planned Referendum was the Citizens Committee, organized after painstaking groundings by Walter Rodney with various trade unions and with organizations representing lawyers, medical doctors, architects, accountants, engineers, journalists and other specialized areas of labour.
The new constitution provided that the presidential candidate with the highest number of votes in the General Elections should be declared president, regardless of the number of votes polled, however, the constitution laid down that before entering upon the functions and duties of president, the head of state should take and subscribe to the oath of office. According to the 1980 Constitution there could be no Election petition against the president once declared elected. The only challenge to the president could be on the claim that the person was not qualified to be president and the challenge had to be made in the Court of Appeal under Article 133.
My approach to the courts as plaintiff was based on my argument that the President had not taken the oath of office as prescribed in the 1980 Constitution and was therefore not qualified to exercise the duties of the President.
The arguments in the case occupied the Court of Appeal with three judges, for three days. In overcoming the President’s immunity from prosecution I was advised to name the Attorney General as one of the respondents. The lawyers advised me about the State Proceedings Act which allowed the President’s actions to come under judicial review. I argued my application in person before that court and the State was represented by Dr Shahabuddeen, the Attorney General. The respondent took the position at the start that I had no standing in the matter, but the court overruled him and allowed me to argue.
My case was that the Legislature had made a deliberate decision altering the Oath Of Office and prescribing a new one that allowed only an affirmation. I had a lot to learn. The respondent argued that everyone had a fundamental right to hold and declare a religious belief and that my argument will deny this right to the respondent. Cited against my argument was a House of Commons case which I think involved Member of Parliament Salmon regarding an oath. The decision of the court was that regardless of the form of the prescribed oath the person had a right to profess religion at any time or place. The Presiding Judge Chancellor George found that the President had in fact repeated the words of the oath and then added what he called surplusage. Another Judge, Justice Luckhoo, agreed with the submission that the president was entitled to profess religion. He remarked on the economy of words in my arguments. There was an overriding argument which I decided not to make since I was unfamiliar with case law. It was the distinction between a written constitution, like Guyana’s, and one based on the supremacy of Parliament and the Common Law. The laws of Guyana provide that the Common Law of England applies to Guyana.
I had also observed that our British educated lawyers, in my view, which may be mistaken, appeared to be partial to British case law as against the written constitutions of newly independent countries, even in those countries, unlike Guyana where ruling party paramountcy was not a factor.
I would say that I brought the Oath Case to demonstrate to the public that the written law should apply to everyone regardless of status. I lost the argument because British case law favoured the respondent and because the fundamental rights are available to all citizens regardless of status.
In my promised description of the process after 1978, I will alert readers to ways in which paramount parties enforce their will, with or without a valid majority, in the law-making body. I hope that public-spirited lawyers will help the public by pointing out any errors I have made in this review.
Yours respectfully,
Eusi Kwayana
