Posted February 8th. 2002 - Special Feature by David Hinds

Dr. Luncheon vs. Courts: What's New?

Dr Roger Luncheon's recent indictment of magistrates for corruption ought to be very helpful to those who care to understand and acknowledge the true nature of Guyana's political system and culture. At least Dr Luncheon's has over the years been consistent in his interpretation and discharge of governmental power. That his latest statement shocks the society, especially the educated and political elites, is more an indictment of them than it is of the cabinet secretary. I insist that Dr Luncheon's statement and his other similar statements flow from an understanding of the license the government has to be the paramount entity in the society. We have to ask ourselves why our post-colonial executives have been able to abuse us in word and deed without fear of retribution? I will propose two reasons.

Responsible people and organizations within any society must condemn and protest government excesses whenever it rears it dangerous head. But they must go beyond that: they must be consistent and persistent and even as they protest the manifestations and effects of government excesses, they must move to cover the loopholes and actively deprive the government of the means by which it justifies its excesses. It is the duty of any decent society to strive day in and day out to protect itself from government abuse, and the first line of defense in this regard is to ensure that there are clear and unambiguous constitutional protections.

That there has not been enough resistance to government overreaching in Guyana, especially since 1992, is due to a combination of factors: we mistakenly believe that with the fall of the authoritarian PNC regime in 1992, democracy was automatic, so we need not struggle any more; people have become cynical given the fact that government overreaching has been the rule rather than the exception; in the name of racial solidarity half of the population remains silent over government excesses while the other half waits on the party boss to tell them when to protest; the opposition parties have handcuffed themselves by subscribing to and defending the rules that permit unbridled government excesses; and the media are not aggressive enough in highlighting and following up government excesses even as they, in the name of editorial discretion, stifle ideas and viewpoints that anticipate government excesses.

The issue of official corruption has been in the air for quite sometime. The air is thick with stories, including charges against magistrates. But the biggest charges have been against high government functionaries in the Executive branch. Eusi Kwayana has been documenting instances of shady and questionable practices and offering clear leads in a publication called Watchpost. Yet none of the so-called civil society groups has aggressively taken up these leads. Not the Bar Association or the Chamber of Commerce, or the TUC or ACDA or GIFT. Not the PNC or ROAR or TUF or GGG. Not the Chronicle or Stabroek News or GBC or GTV. Whenever there have been clear exposures, the matters have been allowed to die for want of follow-up. Our journalists are not trained or encouraged to be investigative. This popular oversight is crucial in a system where there is little or no allowance for institutional oversight.

This lack of aggressive popular oversight has allowed the government to call the shots. The government decides who is corrupt and what constitutes corruption. It is in this context that Dr. Luncheon's recent statement on corruption within the magistracy must be seen. Since Dr. Luncheon spoke in his capacity of Cabinet Secretary, one has to assume that he was articulating the collective cabinet position. Is Dr Luncheon's charge correct? Maybe or maybe not. But when the Cabinet secretary in announcing pay raises for magistrates charges them with corruption, one can only see it as an exercise of political arrogance of the highest order. If the cabinet feels there is corruption in the magistracy, then it must pursue this in a legal and institutional manner. But not so in Guyana where governmental power is used to spite, bully, marginalize, destroy, and dictate to the rest of society.

Dr Luncheon's statement has understandably aroused the anger of many, especially the legal fraternity. But this is precisely part of the problem. We wait for the "big truck" of the State to hit us directly before we react with a few statements of condemnation and then go to sleep waiting to be hit again. We have acquired a collective numbness that allows us to settle for less than ought to be acceptable.

Dr. Luncheon's statement is reflective of an arrogant government and a state that are sure of their reach and power. That reach and power are facilitated by authoritarian constitutional and governance arrangements, the meek attempt at reform notwithstanding. The President appoints the Judicial Service Commission. The President and Cabinet determine who are appointed and promoted in the Judiciary and how much they are paid.

The revised constitution seems to suggest that the executive and legislative branches ought to share oversight of the judicial branch, but the president's party controls both of these branches. Has the cabinet consulted with the Parliament before arriving at its verdict on the magistrates? Well, the cabinet does not have to, since in light of its majority in the parliament, it would be consulting with itself. Cabinet goes to parliament not for consent, but simply for debating purposes. What we have in Guyana is "Parliamentary Pretense" in its most perverse manifestation. This is compounded by the fact that the parliamentary opposition do not have a clue how to subvert this process simply because the sat in the CRC and gave their consent to rules that make them powerless. CLR James would have asked, what do they know of politics who only politics know?

So, Dr. Luncheon is exercising what is obvious in the Guyanese political process and what ought to have been changed a long time ago: Executive Supremacy. Ultimate power of decision-making in our governance arrangements lies solely with the Executive Branch, which is controlled solely by the ruling party. All power granted to other branches and levels of government are overridden by the powers of the President and his cabinet. And because there are no separation of powers and meaningful checks and balances, the Executive Branch cannot even be reined in.

In a society bereft of a consensus and democratic political culture, the above arrangement is a sure recipe for domination, bullying, and authoritarian rule. There is no structural check and there is no cultural check. And when the society's partisan divide reflects its racial divide, the distinction between the dominated and the dominant takes on a racial outlook.

The Chief magistrate correctly complains that Dr. Luncheon is in contempt of court, but what she fails to say or realize is that the constitutional arrangements permit him to be contemptuous of the court simply because the court in our system is the creature of his cabinet. One problem with some of our legal luminaries is that when they speak about the functions and powers of the judiciary, they have in mind the judiciary in England or those in the Law books rather than the concrete thing in Guyana. The Judicial branch in Guyana has long been compromised, demobilized, politicized, and disempowered; it does not assert its power because it has none. Paramountcy, legalized in 1974 and alive and kicking in 2002, claimed the judiciary as one of its first prized victims. The independent judiciary died ever since the PNC had the temerity in the 1970's to fly the PNC party flag over the Court of Appeal, the highest court of the land. Today the PPP does not have to fly its flag over the courts; the constitution does that for the ruling party.

How long will we continue to bury our heads in the sand? The current constitutional and governance arrangements encourage domination, eye pass, bullying, and dictatorship of the ruling party. Mr. Haslyn Parris in a presentation at a recent meeting of constitutional experts and scholars in Barbados, said we need "exploration" of a "new paradigm," not arguments. Although I disagree with him on the utility of argument as a means of exploring new paradigms and how a society arrives at new paradigms, I endorse the spirit of change he advocates. But Guyana, to my mind, is past the point of "incremental exploration." The Westminster model was meant to facilitate the transition to a new paradigm suited to our circumstances, but we instead used its "elastic" devices to consolidate a dictatorial system of governance.

Politics ultimately is largely about how, where, and who makes the decisions about, about who gets what, where and when. How is that power distributed in Guyana or who exercises that power? Not the people in their communities. Not Civil Society. Not the opposition parties-some people like the notion of an "opposition," with no power. Not the Judiciary, Not the Parliament. The power of national decision-making lies solely with the ruling party, not by accident or the result of rigged elections, but by a constitutional design agreed to by the powerless which hands all power to the party that wins an election.

We go around in circles protesting the effects-extra judicial killings, corruption, discrimination, favoritism, mismanagement-but leave the root causes, the rules and the system, intact. Guyana walked the long and nasty road of naked dictatorship before. Today we have the same dictatorship, fully robed in democratic clothing, but inevitably disrobing itself with little purposeful resistance from the society.

Dr Hinds is a University Lecturer and Political Commentator and Activist. He currently teaches Political Science at Glendale College and Mt San Antonio College in California. Please send your comments on this article to dhinds6106@aol.com. An archive of Dr Hinds' other writings can be found on his website-guyanacaribbeanpolitics.com.