The courts have to start the constitutional reconstruction process

Jan 21, 2013 Letters

Dear Editor,
A single judge at the first instance ruling on an issue that goes to the very heart of the nation’s constitutional future and the vitality of separation of powers is not good enough, not when there are Appeal Courts with panels of judges with similar or greater experience to review the same matter. I read the Chief Justice’s ruling and while I am no attorney, I found the analysis and reasoning questionable and out of touch with the reality that obtains in Guyana.
I also found the Chief Justice’s ruling inadequate in addressing some serious concerns about the nation’s abject constitutional structure and a very flawed constitution. This matter is not about Clement Rohee but about the doctrine of separation of powers in a broken and failed constitutional structure, and one senses the CJ failed to grasp this grand forest for the trees principle here. For the Chief Justice to rule that no distinction can be made between Rohee speaking as a Minister and speaking as an ordinary member of the National Assembly is flawed. To say Guyana has no separation of powers and that the Executive dominates every arm of government, including the Legislature, is a grand euphemism.
Some call our Guyana constitutional debacle a hybrid system when any basic student of politics knows it is a constitutional dictatorship. We have a President who is not elected on his own in a separate election like the US or Mexico or South Africa. We have a President who essentially cheats his way to power by bypassing a direct election for the Presidency and by piggybacking onto a parliamentary election for members of the National Assembly. It matters not that this individual would have lost the Presidency to a better candidate if the President was separately elected. When this President gets into power, whether by a minority or majority of the votes, he gets to assume sovereign and independent executive authority, separate and apart from that same legislature he piggybacked onto to get into power. So, the President uses the legislature electoral process to get into power.
The President cannot get power without the legislature and the existence of elections to the legislature yet the president assumes power after the election that allows him to not only exercise authority that completely separates him from sanction by the legislature but even worse, to handpick members of that legislature to his Cabinet.
Nowhere in the modern world or even in the history of presidential systems has this kind of perverted destruction of the separation of powers taken place like in Guyana. The Guyana President gets a free pass to the presidency by not being subjected to a direct presidential vote. Then he gets to pick a Cabinet mostly from party members elected to Parliament. This allows him to interfere, influence and dominate Parliament in sickening fashion. In the USA, anyone who wants to serve in the US President’s Cabinet must resign from their legislature (Congress).
Hillary Clinton is an example of this requirement. The reason for this is to keep the Executive (government and presidency) separate from the Legislature (Parliament). Not so in Guyana. The constitution allows the President, whose party wins only a plurality of the votes, to openly interfere in a majority-controlled Parliament.
As usual, Ministers dominate their party’s business in Parliament. The President can pick MPs from his own party to all kinds of executive appointments, making them beholden to him and in doing so, allowing him to dominate them in the legislature. Jagdeo did this to atrocious extremes. So, the President’s Cabinet gets to prance around like peacocks in Parliament, while the opposition majority of Parliament has no ability to prance around in the executive and Cabinet.
On top of this bizarre undermining of Parliament, the constitution allows the President the right to dissolve or prorogue Parliament at will. Imagine a man who obtains less than a majority of the votes dissolving a legislature controlled by a majority who were voted for by a majority of the people! How in this one-sided assault on the separation of powers doctrine the Chief Justice could fail to distinguish between Clement Rohee, and for that matter any Minister or executive servant who sits in Parliament, right to speak in Parliament in two different capacities as a member of the Executive and a member of the Legislature is beyond me.
In a system where it is patently obvious that the constitution caricaturizes the Legislature and makes it servile to the Executive even when that Executive lacks majority electoral legitimacy, no judiciary can rest on its laurels and adorn itself in abiding within the confines of the letter of the constitution while the nation burns in bitterness, democracy is assaulted and crass disrespect for the rule of law ensues.
If this were the case, we would not have cases like Brown vs. Board of Education by the US Supreme Court and other landmark English, American, Canadian and other cases where courts have stood on the side of creating a fair, just and better society. A list of these cases can be found in Wikipedia. A Legislature dominated by and interfered in by the Executive should possess some power to constrain that Executive when and where it steps brazenly out of line. Rohee still has a right to speak on any matters except to do so officially as a Minister such as presenting official reports. Nothing stops another MP doing this job in Rohee’s stead.
Nothing stops Rohee as a regular MP commenting on that report by that official. If the constitution in such draconian fashion allows the Executive to interfere with the separation of powers doctrine, which is clearly an affront to democracy, why should the National Assembly not have the ability to restrict that interference in preservation of the separation of powers doctrine? The Executive cannot take the sweet of interfering in the Legislature but refuse to take the bitter of sanctions against its members there when they step out of line.
The judiciary has a profound role in shaping a country’s democratic future, moreso a country that is crippled by a corrupt and patently failed constitutional structure. Given that both the PNC and PPP have refused to change this constitution with dire repercussions for their constituencies and the country as a whole, the likelihood of a referendum to fix this debacle of a constitution is unlikely to ever occur as long as these two parties hold most of the seats in Parliament.
It is very plausible that even if a referendum is to occur, voter fatigue will see less than 50% of all voters turn out to vote for it, therefore subduing its legitimacy. So, the courts (judiciary) have to start the constitutional reconstruction process in a measured fashion. Yes, the big items like that horrendous power of the President to dissolve Parliament at will have to be changed by a direct referendum because of their potential for political violence and bloodshed if used dictatorially. However, there are many areas that can be righted by the courts.
Trotman is right to appeal this ruling to higher courts who engage in grand societal analysis. A higher court may for instance, consider enforcing the National Assembly’s right to gag Ministers to improve the separation of powers between the Executive and the Legislature, and in doing so, to improve democracy and governance. A simple decision like this from the Guyana Court of Appeal or the CCJ effectively reconfigures the Guyanese political landscape for the better.
M. Maxwell