Jagdeo had his chance to get it right on constitutional amendments

Jul 14, 2015 Letters

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DEAR EDITOR,
The writer of the Peeping Tom column, “Guyana is becoming a litigious society,” (KN July 13), posited that “to amend Article 90 of the Constitution by an Act of Parliament, the relevant Bill has to be first passed by the National Assembly and then subject itself to a referendum.”
In a ‘perfect world’, yes, but Guyana is not part of the ‘perfect world’, for had it been, former President Bharrat Jagdeo would have fought tooth and nail for Peeping Tom’s two-step process during the 1999-2001 constitutional reform exercises, rather than wait until after he demitted office, by virtue of the presidential term limit law his party supported, to now wage a battle to become President again.
Former PPP executive, Mr. Ralph Ramkarran, who has long been part of the national conversation on this hot button issue, is now telling us that while the PPP initially proposed the two-term presidential concept to the Special Select Committee set up by the National Assembly after 1992, it was only after Bharrat Jagdeo succeeded Mrs. Janet Jagan in August 1999 that two PPP officials, Mr. Feroze Mohamed and Ms. Gail Teixeira, objected at the party level and urged a revisit of the issue, because they felt it should be an issue for the electorate.
Unfortunately, it took the departure of Mr. Ramkarran from the PPP for us to now learn about this, the same way he belatedly dropped the bombshell that after Mrs. Jagan returned from the United States, following her husband’s death in 1997, she told the PPP hierarchy that Dr. Jagan wanted Dr. Roger Luncheon to take over the reins of government, only to be stoutly resisted by certain elements in the PPP executive, who may well be the same ones that hijacked the PPP and the government, and left this huge mess behind.
Anyhow, if Ms. Teixeira and Mr. Mohamed did urge the PPP since 1999/2000 to take the presidential term limit issue to the electorate via a referendum, why didn’t then President Jagdeo heed the suggestion?
I am convinced beyond any doubt that if he and then Opposition Leader, Desmond Hoyte, as key players in the constitutional reform process, had taken the entire constitutional reform package, including presidential term limit, to the people in the form of a referendum, the people would have voted to pass it. So, why didn’t these two leaders go for a referendum or, more pointedly, why did Mr. Jagdeo wait until now to ‘work his magic’ to find a way to get back into power via a court petition seeking to overturn the term limit law?
Editor, although it is universally accepted that constitutional amendments are usually conducted via national referendums, sometimes predicated on legislative bills authorizing such referendum, I believe that during the constitutional reform exercise of 1999-2001, all the key players, but especially Mr. Hoyte, a trained lawyer, knew about the April 10, 1978 parliamentary vote to change Article 73 of the 1966 Independence Constitution, which took away the need for a referendum for constitutional amendments and gave that authority to the National Assembly.
In fact, it has been said that Mr. Hoyte was the other technician, besides then Attorney-General and Legal Affairs Minister, Dr. Mohammed Shahabudeen, who helped draft the 1980 Constitution, but it is not clear if Mr. Hoyte told Mr. Jagdeo that there was no longer need for a referendum on constitutional amendments, and he simply went along.
The only problem right now for this term limit ruling, besides a potentially lengthy appeals process that can start with the local Appeals Court and wind up in the CCJ, is that CJ  Ian Chang’s ruling is only an opinion based on his interpretation of the law as it is supposed to be, but not as it is written.
For whereas, under the heading of ‘Procedures for altering this Constitution’, Article 164 (1) says, any Bill seeking alteration of the Constitution requires a majority of all the elected members of the National Assembly, it did not specify simple or super majority. Forbes Burnham, ever the tactician, ensured he always had a two-thirds parliamentary majority in the House after 1968. And as an aside, even if it is argued in court later on that the Constitutional Amendment Bill No. 8 of 1978, which took constitutional amendment authority from the people via a referendum and gave it to the National Assembly, was for ushering in the 1980 Constitution, the constitutional amendment process remains vaguely written in the 1980 Constitution with use of the words ‘Parliament may’ in Article 164 (2).
Article 164 (2) states that a Bill to alter certain specified provisions of the Constitution, including Articles 90 through 96, shall not be submitted for the President’s assent into law (within a stipulated time frame) unless the said Bill has, in a manner as Parliament may prescribe, been submitted to and approved by a majority vote among the electorate.
To the natural eye and mind, Article 164 (2) lays out the two-step process noted by Peeping Tom and highlighted at the top of this letter. But if after a parliamentary majority vote to amend the Constitution, the next step is for Parliament to prescribe a manner in which the passed vote reaches the people in the form of a referendum, did the original framers of the 1980 Constitution deliberately insert the word ‘may’ after ‘Parliament’ to indicate it is an option?
I ask the question because after the unanimous parliamentary vote supporting 1999-2001 constitutional reforms, including presidential term limit, Parliament did not send its ‘yes’ vote in the form of a referendum to the people.
I close by urging my fellow Guyanese to always be cognizant of the fact that the 1980 Constitution was not written for the people of Guyana, but for Forbes Burnham and his PNC government, so that certain constitutional articles that appear controversial, are controversial because of their intent and not mere content. That was why the entire 1980 Constitution should have been shelved instead of tinkered with in 1999-2001.
I now look forward to the coalition government’s promise to make genuine, people-based constitutional reform a priority issue going forward, while stymieing Mr. Jagdeo’s third term bid. He had his chance 15 years ago to get it right and he blew it.
Emile Mervin

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