There are not that many constitutions across the globe which haven’t been subject to tinkering. Even the first codified constitution in the world, that of the United States, which became operational in 1789, has been amended 27 times. It began as a succinct seven articles, although its first ten amendments comprise the Bill of Rights, an omission from the original document to which some states’ delegates had objected. While there are examples of constitutions, such as that of Japan, adopted in 1946, which have not been subject to alteration, in more recent times the compulsion to modify if not rewrite completely has overtaken many nations.
And now Guyana too will shortly be embarking on its latest excursion into constitutional overhaul for the third time. The country’s original 1966 document was by no means as seriously flawed as has sometimes been made out, although it would no doubt have required amendment for the modern era. It was replaced in 1980 by a constitution crafted most likely with the aim in mind of allowing Forbes Burnham to become president, who would then have powers and status not enjoyed by a prime minister. Following the disturbances in the aftermath of the 1997 election and the intervention of Caricom, the political players on both sides agreed to the reform of that constitution, and certain amendments, some of them quite far-reaching, were agreed upon and passed into law. But the work was unfinished, and now we are back again looking at the scaffolding of our political system and establishing the rights to which we should all be entitled.
The process will be cumbersome, but will follow the same pattern that was used for the 1999 reform exercise. A Constitution Reform Commission has been set up by an Act of Parliament and will comprise five members from the PPP/C, four from APNU and one from the combined LJP, ANUG and TNM parties which share a seat in the National Assembly. In addition to the political representation, there will also be one person coming from each of the following: the Guyana Bar Association, the labour movement, the National Toshaos Council, the private sector, womens’ organisations, youth organisations, Christian organisations, Muslim organisations, Hindu organisations and farmers. It is intended that the Commission should proceed in a consultative manner to garner the views of the citizenry about the changes they would like to see. Following that they will produce a report which will be submitted to the Standing Committee on Constitutional Reform in the National Assembly giving its recommendations and reasons for these. Changes to many sections of the Constitution will require the cooperation of government and opposition, since a two-thirds majority in the House will be necessary.
Before the process ever reaches that stage, however, the Commission’s task will be an onerous one. Under the Act it is required to review the Constitution of Guyana and consider, among other things, the fundamental rights and freedoms of all Guyanese, as well as the rights of women, children and the indigenous people. It should also look at improving race relations, promoting ethnic security and equal opportunity as well as reforms relating to elections. It is required to ensure that the views of minorities in the decision-making process and the conduct of government are accorded due consideration, and its consultations must cover the widest possible geographical area to include as many individuals, groups, communities, organisations and institutions as possible, not omitting high school and university students, the private sector, professional bodies and the media.
It is stipulated that it should in addition direct its attention to measures to protect economic, social and cultural rights; strengthen the independence of the judiciary; safeguard public funds and enhance integrity in public life; enhance the capacity and effectiveness of the National Assembly as a deliberative body; and improve the capacity and effectiveness of the local government system. In his column in this newspaper two weeks ago Mr Ralph Ramkarran took the government to task for omitting inclusive governance as a major issue in the constitution reform process in contravention of what was promised in the PPP/C manifesto. AG Anil Nandlall responded that the process would see suggestions for legislative changes from across the country, and if inclusive governance was to be one of the laws it would represent a recommendation made by the people.
It might be mentioned that the present constitution already gives the principal objective of the political system of the State as the establishment of an inclusionary democracy, but the government has showed no disposition to try and implement this in practical ways.
While Mr Ramkarran’s point is well taken given the format of the review required under the Act, it could also be argued that a more fundamental problem is not so much that it excludes inclusive governance, as that it includes all the other items listed. As such it becomes an inventory of what the government would like to see addressed in the constitution, rather than leaving the matter an open question for the parties, organisations and citizens whose views the Commission will be soliciting. Of course it will be said that anyone would be at liberty to put forward suggestions outside that framework, as the AG has contended, but it would still mean that the commissioners in order to discharge their duties under the legislation would have to pay attention to the issues which have been catalogued with the clear implication that potentially the responses they receive would be destined for inclusion in their final recommendations.
This is not to say that the Commission would not have needed a mandate, but it could have been a very basic one. It does not have to specify that measures are required to protect economic, social and cultural rights, for instance. In the first place, what exactly does that mean? The likelihood is that it will amount to inviting submissions on what are called ‘social rights’, such as the right to work, housing or health care. We already have a fairly extensive range of such rights in Chapter II of our constitution, so why the government regarded this as so important when it drew up the Commission’s duties, rather than, say, Mr Ramkarran’s topic of inclusion, can only be speculated. What can be said is that such rights are at best aspirational as well as unenforceable, and would require ordinary legislation to make them meaningful.
To take one random example, a constitutional right to education will only acquire meaning if it is buttressed in the ordinary statutes by compulsory education regulations. Similarly many social rights, if not most, are better left to ordinary legislation and governments to address, leaving the constitution to provide the formal structures within which the society operates. Normal laws on what might be termed content matters are more easily changed, leaving the constitution the time to acquire a certain dignity and acceptance undisturbed.
Then there is the matter of strengthening the independence of the judiciary, to take another example. Even under the current arrangements the judiciary could be fully independent; it is just that in our polarised environment governments want judges they regard as sympathetic to their political outlook. If President Irfaan Ali will not take the steps necessary to appoint a Chancellor and Chief Justice in defiance of the provisions of the current constitution, then no reforms will change that approach. The same point applies to local government, which the administration could make more effective even as things stand, but which it shamelessly bypasses. In other words a constitution is only as good as the degree to which a government will observe its spirit and letter.
This is not to say there is not room for further reform in those areas at a constitutional level, merely that it is not necessary to spell them out in the form of directives to the Commission. But there is something else. Given the commissioners’ list of items the implication is that the final recommendations might eventuate in a lengthy document. The Economist has noted that that the longest charters are the most changed, as is the case in India and Brazil which have notoriously long-winded constitutions. There is much to be said for a briefer document which concentrates primarily on setting out the ground rules for the state. There is a lesson to be learned too from the case of Chile, which went through a time-consuming process consulting the public on a new constitution, and came up with a draft containing 388 articles. After all that time, effort and consultation the Chilean people rejected it in a referendum.
The general public – there will be quite a few exceptions to this generalisation – will probably be most concerned about rights. The real changes to what obtains at present will involve some level of technical knowledge about how political systems work, so mechanisms can be created or existing ones improved to effect inclusion, for example. As such, the role of political parties in terms of the proposals made will be significant, especially where APNU is concerned. That party’s co-operation will be essential to get any amendments through Parliament. So far, it has shown no great interest in constitutional reform, despite the fact it arguably has the most to gain from changes to our founding document. In an extraordinarily short-sighted move in November last year it walked out of the Chamber before the debate on the Commission Act had even started. It should begin to wrap its mind around the issues, and perhaps contract advice from outside experts, since it does not appear to have the range of skills within its ranks nowadays which might be required for an exercise of this kind.
Everyone would like consensus on the changes to the constitution this time around, and that will require a modification in approach on the part of all our politicians in particular.
