CHANGE IS POSSIBLE THROUGH THE COURTS

Jan 12, 2009 Features / Columnists, Peeping Tom

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The Constitution of Guyana is the highest law of the land. As the country’s supreme law, no law can generally be in contradiction to it.
However, a constitution needs to be understood in its entirety; and while it is the foremost law of the land, not all of its provisions are enforceable.
Take, for example, Article 13 of the Constitution, which is so often referred to when persons wish to complain about the lack of stakeholder input and consultation in the preparation of legislation, and which has become a sort of moral compass by which some people judge the actions of Government legislators, a sort of band aid criticism that is applied to almost everything that is worth opposing.
Interestingly, none of the persons who are often quick to point out that laws are in contravention of Article 13 have ever mustered the courage to challenge in our courts any law on the basis of its contradicting this article.
There are good grounds why no challenge has been made on the grounds that some legislation or policy is in contradiction to Article 13, the main one being that Article 13 is unenforceable in a court of law. Article 13 can only be invoked as a political argument against a policy of argument, but never as a point of law.
Article 13 belongs to a group of articles that merely declare the lofty political and economic principles to which the State of Guyana aspires. These articles are akin to a mission statement for the country, but they are not legally enforceable.
Under the 1980 Constitution, there were similar articles, such as the right to work, and land to the tiller. However, no citizen who could not find work could approach the courts demanding redress; neither could any farmer without land demand that he or she be given land by the State.
The Constitution must, therefore, be understood as a document of many parts, with enforceable sections and others that are not. Equally to be understood is the concept of the separation of powers which vests to Parliament the right to make laws and to the courts the power to determine the legality and constitutionality of laws and actions by the Executive.
When, during the last sitting of the National Assembly, the Opposition sought to halt the debate on the amendment to the Trade Union Recognition Bill, it argued that the debate should not proceed since, among other things, the Bill was unconstitutional, and it sought to have the Speaker make a determination on this point.
The Speaker correctly ruled that the proper place for such a challenge was the courts. It is the duty of the courts to interpret the Constitution and to decide whether any law can be held to be inconsistent with it.
The Opposition has indicated that it will be challenging the constitutionality of the recently passed amendment. I do not believe that the Opposition stands the ghost of a chance of succeeding in any such challenge, moreso if the basis of that challenge is Article 13 of the Constitution of Guyana.
Strangely, in another matter where I believe the Opposition has a strong case to prove the Executive was in breach of the Constitution, the Opposition has decided not to approach the courts.
I am disappointed, because I feel that the Opposition can successfully argue that the manner in which the Government chose to appoint the Commissioner of Police was in violation of enforceable provisions of the Constitution.
Regardless of how long the challenge will take, there is merit in making the challenge. Such a challenge will settle important points of law relating to the constitutional appointments, and ensure that future actions by the Executive do not run roughshod over the Constitution. For this reason alone, and the foundation it will set for good governance, I believe that the Opposition should challenge the constitutionality of the appointment of the Commissioner of Police.
I support the appointment of Commissioner Greene, but I believe that this appointment should follow the procedures prescribed under the Constitution and which have been fleshed out in a number of court decisions dealing with the concept of meaningful consultations.
The Opposition must not feel frustrated that the Government is seemingly having its own way. It must continue to engage in democratic forms of struggle on all fronts, including recourse to the courts. When political sense falls on deaf ears; when dialogue is fruitless, there is always the possibility of change through the courts.
The Opposition may have failed to stop the passage of the amendment to the Trade Union Recognition Bill. But it surely can ensure that the provisions of the Constitution relating to officers of the State are not violated in the future. It can do this by challenging in court the constitutionality of the appointment of the Commissioner of Police.

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