WHEN GOOD INTENTIONS CAN BE DANGEROUS

Feb 24, 2013 Features / Columnists, Peeping Tom

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Not many persons outside of her friends and family would have known about the name Esther Perreira before the 1997 elections. But following those elections, Esther Perreira filed an election petition challenging the validity of the results of those elections.
The name Esther Perreira has a consequence of the decision in that case becoming part of Guyana’s political history. The Courts vitiated those elections on the grounds that the use of the voter ID card was unconstitutional. Esther Perreira’s name is now part of Guyanese electoral and legal history.
Some other ordinary citizen may have a chance to be part of that history. The Attorney General has extended an invitation to any citizen to come forward and file an action against the recent passage of an opposition Bill in parliament. The Bill sought to amend the Constitution to allow for certain agencies of the State to draw down funds directly from the Consolidated Fund.
The proposed amendment was well-meaning, but the means by which it was pursued is extremely ominous. The intention of the Bill was to allow for certain agencies to enjoy greater independence from the government. The logic behind the amendment was that if the government controls the purse strings of these institutions, they can use this control to interfere with the independent and professional workings of those agencies. By seeking to have these agencies draw directly from the Consolidated Fund, the opposition was trying to preserve these agencies’ independence and insulate them from political control. This was therefore a well-meaning amendment.
However, the manner in which it was passed has raised alarm within the government. In the context of what the government fears can be the potential for a constitutional putsch through the use of the opposition’s one-seat majority, the government is now inviting a citizen to challenge the decision of the Speaker to allow the Bill to be voted upon.
The government feels that the passage of such a Bill was in violation of the Constitution since an ordinary majority cannot be used to amend Article 222 (A) of the Constitution.
The government is right. The Bill was allowed to be passed without the two- thirds majority that is necessary to amend a specific article of the Constitution.
This Bill should never have been put to the vote. In order to achieve the objective desired, there was a need for the Bill to be passed with a two-thirds majority, rather than with a simple majority.
The government no doubt recognizes that there are serious implications in this passage. For one, if the opposition, with all the legal resources at its disposal, could have so blatantly attempted to amend the Constitution without the requisite two-thirds majority as demanded by the Constitution itself, then who knows what else they may not attempt in the future.
Who knows, this majority of one may very well be used to turn the losers of an election into the victors.
In the context of what has happened in Honduras and in Paraguay, there are fears that there is the potential for a similar situation in Guyana. These fears may be misplaced, but given that the opposition has passed a motion of no confidence in the Minister of Home Affairs and has attempted to gag him, the government is naturally concerned about the precedent that can be set if it does not challenge how the recent Bill seeking to amend the constitution could have been passed when it clearly did not enjoy the requisite support of a two-thirds majority in the National Assembly.
Guyana was once the economic pariah of the Region. It must not be allowed to develop into a constitutional pariah. And this is no doubt why the government wants someone to challenge how this opposition Bill could have been passed.
This Bill, of course, illustrates exactly why there is a need for presidential assent before a Bill becomes law. Without that assent an unconstitutional act would be become part of the highest law of the land.
This Bill will not become law because the President will be advised, and wisely so, not to grant his assent. But the real danger is that what has happened here can happen again and the requirement for a special majority to amend the constitution can be substituted by a simple majority.
Ironically, any challenge is likely to fail on the basis of the Bill not being assented to by the President. Since it has not been assented to, it is not law, and since it is not law, then the Courts cannot inquire into the sovereign workings of parliament.
The court is thus likely to rule that there is nothing to rule on, because there is no law in place amending the Constitution. As such, instead of making history, the person who steps forward to challenge the Bill’s passage in the National Assembly is not likely to have his or her moment of fame.

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