Dismantling of the Constitution and the Rule of Law

Jul 30, 2016 Letters

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Dear Editor,
Countries in the English- speaking Caribbean are often described by Constitutional theorists as “constitutional democracies”. This is so for many reasons. Their constitution is their supreme law. It creates their system of Government and invests it with powers to govern the State and limits those powers. It determines who will govern and how they will govern.
It creates and regulates the relationship between the State and the citizenry. It confers certain obligations on the State and it imbues the citizenry with certain rights and freedoms. It determines how the State raises, and how it will account for the expenditure of those revenue. It sets out how laws are made and by which institutions they are to be interpreted and enforced.
It creates a series of institutions which acts as checks and balances against abuse of power and through which the State is to be held accountable for its actions in order to ensure that there is good and democratic governance in accordance with the Constitution and the rule of law. Guyana is one of these territories.
Interwoven in this constitutional fabric, are several institutions which are structured, designed, financed and constituted in such a manner that they enjoy considerable functional autonomy and independence in the discharge of their individual mandates and, they are strongly insulated from any form of influence, in particular, from the Executive. These institutions include, but are not limited to, the Judiciary, the Office of the Auditor General, the Director of Public Prosecutions, and the Guyana Police Force.
It is the Judiciary which the Constitution ascribes the exclusive responsibility to interpret and uphold the Constitution and the laws; to strike down unconstitutional laws and condemn unlawful Executive actions and abuses; to determine disputes between the citizenry and the State and among the citizenry themselves; and to impose sanctions on those who violate the law. The independence of the Judiciary is zealously guarded in the Constitution by a series of mechanisms. Its officers are appointed by a special process. They are conferred with strong security of tenure. Their remuneration package cannot be altered to their detriment. They are financed by a direct levy on the Consolidated Fund.
The Office of the Auditor General, by virtue of the Constitution and the Audit Act, enjoys a regime of independence similar to that of the Judiciary. Its core functional responsibility is to exclusively audit the State’s receipts and expenditure of public funds. It prepares and presents annual audited financial statements, in relation thereto, to the National Assembly for its scrutiny.
The Director of Public Prosecutions is another institution which enjoys similar constitutional independence. Its main function is to advise the State on criminal matters and to institute, undertake, take over and continue or discontinue criminal proceedings against any person before any Court in respect of any offence against the laws of Guyana. The functional independence which the DPP enjoys can be gleamed from the language of Article 187 (4): “In the exercise of the powers conferred upon him or her by this article the Director shall not be subject to the direction or control of any other person or authority.”
The Guyana Police Force is the institution vested with the exclusive power to investigate and prevent criminal conduct and, to generally maintain peace and public order. The Force’s independence is manifested in the way its officers are appointed, promoted, disciplined and removed from office. More significantly, the Force is superintended by the Commissioner of Police who has exclusive responsibility in respect of management and administration of the Force and over operational matters, to the exclusion of the Executive Government. The Governmental officer who holds ministerial responsibility in respect of the Police Force can give directions in relation to policy matters only.
The above exposition is but a fleeting glance at the length to which the framers of the Constitution have traveled, to alienate from Executive Government, certain responsibilities and to reside them in independent and autonomous organizations, then insulating these organizations from Executive influence. These complex and multiple constitutional mechanisms were created for one purpose only: that is, to create a system of checks and balances to avoid the abuse of power by the Executive Government.
Mohabir Anil Nandlall, MP.
Attorney-at-Law

Editor’s note: Because of its length, the second part of Mr Nandlall’s missive will be published in tomorrow’s edition

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