This afternoon, one “unelected” person decides the fate of the government

Jan 31, 2019 Features / Columnists, Freddie Kissoon

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Since the no confidence vote (NCV) of December 21, 2018, the print media have been deluged with interpretations of the constitution in support of the legality of the NCV and in rejection of its legal validity. The very latest one is the viewpoint of attorney Jailall Kissoon in both KN and SN.
His position is pellucid. The NCV was properly put and properly voted on and was done in accordance with the constitution. Then there is a most amusing letter signed by someone who put his/her designation, “attorney-at-law” in yesterday KN under the headline, “Article 106 (6) and (7) are inconsistent with article 1.50 and 65.”
The anonymous avenue can be used by anyone to adumbrate silly polemics that even lack commonsense and get away with it because no one knows who he/she is. If you disagree with Jailall Kissoon, you can now say that you don’t think Mr. Kissoon (no relation) understands constitutional law. But that anonymous lawyer may not understand politics and law and yet there can be no rebuttal.
The letter argues against the power of an NCV to remove a president. It goes on to state that it is unconstitutional for Parliament to remove an elected president because in doing so it impinges on the sovereignty of the people. He/she refers to this as a parliamentary dictatorship.
I quote from the letter; “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)”
The conceptual flaw in this argument is the dichotomy between the people and their representatives. From very early times in the evolution of civilization, it was discovered that decisions cannot be made by every citizen of the “demos” having to be asked. Thus was born representatives of the demos.
Plato called these representatives the “philosophy king class” which he later renamed the “nocturnal council.” It was Aristotle who argued that you cannot have a permanent set of representatives deciding on what the people want. He suggested that even if they remain permanent their action must be guided by laws.
Parliament is the manifestation of the sovereignty of the people. The only philosophers who argued against this were those who believed in the divine rights of the monarch. Thomas Hobbes and his theory of the Leviathan have been misunderstood for a long time. The popular approach to Hobbes is that the Leviathan replaced the sovereignty of the people.
Hobbes explained that for there to be civilized society, the people must surrender their sovereignty to the Leviathan who becomes the sole recipient of power. But Hobbes went on to argue that there must be an exist clause. If the Leviathan misuses his power, the people must remove him.
What is conceptually wrong with the power of parliament to remove an elected Executive? In Guyana, we don’t have presidential elections. We have parliamentary elections and the Executive comes from a list that contested the elections. The parties that go into parliament become the representatives of the people.
Sovereignty, then, is transferred to the people’s representatives. Hobbes was quite clear on the removal of the Leviathan. Likewise, the people’s representatives can remove the Executive.
I may be wrong but I know of no constitution where the executive cannot be expelled from power by the people’s representatives. In some constitutions, there has to be a two-thirds majority but whatever majority you call it, parliament (or congress in the case off Brazil, the US and other countries) has the right through being the elected lawmakers of the people to take action against the executive.
In trying to argue that a motion or a deliberation in parliament cannot remove the government, the letter-writer (who says he/she is a lawyer) failed to understand the ruling of the CCJ on the term limit case. The judges simply stated that parliament could have amended the constitution and it was a democratic act because parliament is the conveyor belt of the sovereignty of the people.
Today one person, a judge, will decide the life of the government. Is that undemocratic? The answer is a gargantuan no. The judiciary was created by the people through their representatives to adjudicate.

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