The Story within the Story…Constitutional reform must become a priority

May 21, 2017 News

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By Leonard Gildarie
A country is as strong as its laws. When we speak of laws, we should not only be concerned by

what is written or assented to in the Constitution of Guyana. It has to do with the strict adherence and enforcement of what we have. Because of the very nature of laws and the operations of courts, different persons will have different interpretations of the law.
That is why it is left to the courts and our learned judges to determine what exactly the law intends when it was conceptualized and assented to by the president.
Our citizens have the right to approach the courts to render a decision if they feel that laws are not followed. That is why our courts should be considered as sacred and the players involved, for the good of this land of ours, should insist that all stops be pulled out to ensure it remains so. There should be no questions about the integrity of our courts and our judges and magistrates.
We should all know and be concerned about our Constitution. It is what is supposed to guide our country forward and keep us from descending into chaos. Of course, this is dependent on the various systems working.
Our Constitution was birthed in 1980 and has gone through some cosmetic changes.
We are living in different times now. While one can argue that we have to tailor our Constitution to fit the local climate, there are certain inherent things that the drafters would have to cater for. There should be as little room as possible for different interpretations. Our laws should not be vague, leaving room for doubt.
We have started the process of constitutional reform with, as a preparatory step, a Steering Committee on Constitutional Reform (SCCR), headed by prominent lawyer, Nigel Hughes, established on September 1st, 2015. The Committee’s report was submitted to the Prime Minister on 30th April 2016 and subsequently laid before Cabinet for discussions. A Constitutional Reform Consultative Commission Bill was drafted. The well respected Carter Center came on board to help the process.
In February, a team from the United Nations Development Programme visited Guyana to talk to stakeholders to help determine the way forward.
Constitutional reforms were a talking point leading up to the 2015 general and regional elections. There are a few glaring things in the Constitution which have fueled debate and have been highlighted as issues that need to be addressed. It includes the powers of the president.
It has been argued that the president cannot be prosecuted for action taken during office. Even after he or she leaves office, the immunity seems to kick in.
Here is the problem. What happens if the president deliberately gives an order to kill 10 persons at a popular establishment or transfer $1B to his or her nephew’s bank account in the Cayman Islands? Surely that cannot be a legal action of the president. Surely that cannot be one of his or her duties. He or she cannot be immune from prosecution.
I am convinced that the drafters of our Constitution never intended for such an interpretation. But the very wording to the Constitution leaves confusion whether the door is open to prosecution.
Rather, I humbly submit, it was the intention that the actions carried out by the president on behalf of the country is what the drafters intended…the routine actions…the legal actions.
The Constitution does not make it clear whether an illegal action could result in sanctions.
If one is to believe the defenders of the Constitution, it could be concluded that the president could even escape with murder. This is why the issue of reform must address this weakness.
Another glaring issue that has been raised by commentators is the Constitution barring political parties from forming a coalition after the elections results would have been announced.
Surely, in this time and place where our people have different expectations and where Suriname, Curacao and most countries we know allow coalition, we must move to correct this.
In the multi-cultured, traditional two-party situation we have been faced with, the arrival of the Alliance For Change was seen as a breath of fresh air. Alas, the party, which was seen as an alternative, had to form a partnership before the elections. It could not have been possible after elections. It could not have been possible for the AFC to join forces with the People’s Progressive Party after the elections results were announced in May 2015.
Another area that has been criticized is the fact that we have an arrangement where the main political party recommends its members to the Guyana Elections Commission.
The Carter-Price formula was created by former United States President, Jimmy Carter, and former Prime Minister of Belize, George Price. Based on records, the formula was first used in the 1992 elections and underwent a number of modifications in 1995 in preparation for the 1997 elections.
According to the formula, the Commission at GECOM is made up of six political appointees – three from each of the two major political parties – and a Chairman who is appointed by the President from a list of six names provided by the leader of the Opposition.
The events of the past two elections have made it clear that GECOM is much more than a mere manager of elections that is also in charge of issuing National Identification Cards. There must be confidence in the body. It has to include other stakeholders and academics. Not politicians.
I know a number of people, who I have deep respect for, sitting as commissioners on GECOM. But that does not mean that the configuration is acceptable.
There are several other things, like the appointment of members and chairpersons to the various service commissions. These should not be left to the president alone.
There must be a broad-based forum or commission in place that is functioning, that allows any sitting president not to feel that there is some stranglehold on any of the appointees.
Of course, we can talk about the courts, the fines, the disparity when sentencing a man found with a few grammes of coke or marijuana, as against somebody who stole millions from the state. Let’s get the show on the road.

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