Democratic Rules of Engagement

Mar 12, 2012 Editorial

The government has decided to let the courts decide whether the action by the joint parliamentary opposition – made up of APNU and AFC – on the composition of the Committee of selection is in accordance with the Constitution. Not surprisingly, there has been much comment on the merits of the move, and even the bona fides, by the government in making it.
The latter is much easier to address. In the old and original British tradition on which our system of governance was modeled, there is the acceptance of the idea of legislative supremacy: that the judicial body does not have the power to strike down primary legislation.
All sovereignty resides in parliament and cannot be delegated. Thus if the British Parliament enacts a law, that cannot be challenged. However, there is another doctrine that developed and which has been adopted in many other jurisdictions: the separation of powers.
First explicitly promulgated in the newly formed United States, the three branches of government – the Executive, the Legislature and the Judiciary – are viewed as co-equals that must act as ‘checks and balances’ against each other. Sovereignty is shared.
The theory, of course, is that this arrangement best protects against the tendency for all men and organisations to misuse allocated powers. In a very famous early case brought before the US Supreme Court – Marbury v. Madison – the ‘separation of powers doctrine’ was confirmed, but simultaneously, its right to decide whether the laws enacted by the legislature was not violative of the Constitution was established. In Constitutional Law, this became known as the doctrine of “Judicial Review”: that the Constitution is the highest law of the land; it protects the sovereignty of the people and the courts are the arbiters as to whether or not that sovereignty is transgressed.
In Guyana, we were granted a written constitution, unlike Britain which, in the absence of a written constitution, maintains its traditions handed down.
Our Constitution Art. 65 (1) is very explicit on the powers of the Legislature: “Subject to the provisions of this constitution, Parliament may make laws…” Meaning that all laws must be in conformity with the constitution: this has already been tested before. While all of this concerns the enactment of primary laws, the principle extends to all actions of the body.
In view of the Opposition arguing that the powers of the Executive must be checked – which is based on the separation of powers doctrine – it would seem rather anomalous if they were to deny jurisdiction to the Courts to pronounce on the issue brought before it.
As to the merits of the move, that of course, is for the Court to decide. But it would appear that the government has a rather strong argument. Overall, the Constitution is redolent with the Principle of Proportionality in regards to transferring the sovereignty of the people into their chosen representatives in the House of Assembly.
The government has invoked Articles 60 and 160 which speak to this end in the electoral system. The demand to maintain this strict proportionality was maintained through a variety of elaborate mechanisms during the constitutional changes enacted in 2001 and after.
We suspect that the government would obviously argue that if the intent of the framers of the constitution is so clear, then it would not do to set it aside at this juncture. This is especially true as the government has already pointed out that Parliament’s Standing Order 94 (1) states: “Every select committee shall be constituted as to ensure, as far as possible, that the balance of parties in the Assembly is reflected in the committee.”
Once the Principle of Proportionality is accepted by the Court, it then becomes a question of fact: was the allocation of membership on the Committee of Selection in accordance with its stricture? The question posed by the PPP becomes pertinent at this point: can the PPP’s 49.23% of the popular votes be equated with the same four seats on the Committee as that of APNU with 40%?
What do you think?

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