Article 106 (6) and (7) are inconsistent with Articles 1, 50 and 65.

Jan 29, 2019 Letters

---

DEAR EDITOR,

In my respectful view, article 106 (6) and (7) cannot lawfully be mandatory provisions in a constitutional democracy where it is a government by the people and for the people. Such legal concept has its origin in the unwritten constitution of the United Kingdom. In the United Kingdom, it has been and still is the Queen’s government.
The House of Commons and the Prime Minister administer the affairs of the realm on behalf of the Crown. Therefore, a defeat on a no confidence vote, or a confidence vote in the United Kingdom, is really a message from the House of Commons that the House no longer has confidence in the Prime Minister and her cabinet to administer the affairs of the Queen’s government.
Instead of removal by the Crown (powers which the crown still has but is hardly ever exercised) the Prime Minister, following convention (unwritten laws or customary practice) will resign.
In Guyana’s context, there is no crown or Queen who is sovereign as is the case in the United Kingdom. The people of Guyana are the sovereign authority (see articles 10 and 50).
The people exercise this sovereignty through the democratic institutions of the state. The institutions are the President, the Parliament and the Cabinet.
Sovereignty therefore is a primordial right, inalienable from the electoral process and the electorate. It is a right that can never be removed from the people and placed absolutely in any single person or institution to exercise.
Article 106 (6) seeks to remove this sovereign right from the people and place it directly at the centre of parliamentary affairs. This is wholly inconsistent with and an abridgement of article 65 of the Constitution.
Article 65 of the constitution clearly specifies that Parliament is that body responsible for making laws for the peace, order and good governance of the Republic. In order to be efficient, it is dignified sovereign; that is, those with sovereign power that must elect the parliament to make laws to govern their affairs.
In other words, the efficiency of parliament and the source of parliamentary authority are founded in the people, who gave parliament the sovereign right to make laws to affect their daily affairs.
This is the true meaning of article 10. That the people exercise the sovereign power through the parliament which makes laws.
Similarly, it is those with the sovereign right that elect a President to execute the laws implemented by parliament. And it is for the judicial arm of the state to interpret these laws for the people to understand. This is how democracy works.
Nowhere in the Constitution, was Parliament given sovereign powers other than to make laws. The exception to this is at article 106 (6) which allows Parliament to usurp what we can consider the inalienable sovereign right of the people to elect a President to execute the laws passed by the Parliament which the people elected.
This could not have been the intent of the framers of our constitution when they spoke of democracy. This cannot be democracy. It is Parliamentary dictatorship. It is a system whereby the Parliament is as powerful as the source where it derived its powers and efficiency from (the people).
It is a system whereby democracy is made weak, in that the people can elect today and the Parliament can conveniently check the sovereign right of the people by removing the President that the people elected once there is a majority (simple or absolute).
On this basis, I make bold by saying that the entire case turns on the validity of the Constitution Reform Act no. 17 of 2000 which implemented Article 106 (6) and (7).
In Cedric Richardson v AG of Guyana (CCJ) (third term case), Richardson challenged the validity of a certain section of the said Act. Richardson argued that the Act weakened democracy. The CCJ disagreed and held that a third term restriction enhances democracy.
The said question asked then must be asked again in relation to the said Act, but two separate and independent paragraphs.
Whether the sovereign power of the people to elect and remove a President at a “Presidential election” (see article 60) weakened, undermined, made of little or no utility and/or removed altogether by the powers purportedly conferred on the Parliament by article 106 (6) and (7) to remove a President elected by the people and for the people?
Further, could a Parliamentary motion as opposed to a Bill which introduces a law affect the ordinary affairs of citizens, in light of parliamentary powers under article 65?
Can a motion affect the ordinary affairs of citizens? Are motions only intended to regulate the internal affairs of Parliament? Is the passing of a motion the same as passing of a Bill to make law?
Is this kind of motion inconsistent with the powers of Parliament under article 65? Has the Parliament undermined the Executive arm of the state?
“It was widely believed that to remove the President, impeachment proceedings have to be filed under Article 180 of the Constitution. However, impeachment invariably requires a weighted majority of two-thirds and three-fourths of the elected members of the National Assembly. It was never contemplated that the President, together with his whole Cabinet, could be removed from office by a simple majority on a motion of no-confidence.”
Moreover, unlike Article 180 (3) (a) which speaks to due process, whereby the chancellor appointments a tribunal to investigate and report to parliament on its findings of an investigation into constitutional breaches by the president, Article 106 is void of such basic constitutional safeguards, which speaks to the principle of due process and fairness.
Article 106 cannot be legally applicable in its current form.
In conclusion, the people of Guyana exercise their democratic sovereign rights by choosing a government to represent their affairs through democratically enshrined processes under article 60 and 160.
It is the people who are also responsible for the removal of a government from office through the electoral system. It has long been held in our Courts that a power to appoint normally carries a power to remove. Our constitution gave the people the power to elect a government and to remove that government under articles 60 and 160. The same cannot be said of the Parliament.

Attorney At-Law

---

---