A battle of Ideas: Guyana's Constitutional Crisis

Posted September 24th. 2006 - by Eusi Kwayana.

In a society divided by many factors, but mainly by race, constitutional issues have a high importance. Rita Hinden in reference to Guyana described race as a "patent" difference.

Peeping Tom can be quite a readable writer, when he is not trying to tear the WPA apart. He can even stop to poke fun at an old man who has got so dull that he misses the alleged tendency of courts to give free rein to rulers to apply the rule of law selectively. Although the constitution is the fundamental law, we are now that those parts of it that carry 'mandatory' language are more fundamental than others.

Perhaps that is why many office holders flout the Oath of Office so readily, most often when they misinform the public, or a tribunal, or ignore or violate the Constitution. The language of the Oath appears to flow from the single heart. It carries no built -in forbidding language and, of course, no sanction. In this the Oath is more Kemetic than Biblical. The Oath too, is part of the Constitution.

The distinction between mandatory and regulatory language does exist, but is neither reliable nor conclusive.

For another look at what is, or is not mandatory, let us try

Article 60. "Elections of members of the National Assembly shall be by secret ballot."

Where is there the 'mandatory' language in that provision ? A mandatory provision might go on to say "and shall not be elected by any other form of ballot." It appears to my common sense, as a lay person, that as part of the fundamental law this important provision does not need mandatory sounding language. The secret ballot is by far the most cherished electoral right of any electoral system. All of Guyanese political history at least has shown this to be so.

Article 69 although claimed to be only 'regulatory' is of similar structure, laying down what 'shall' be done. It says that elections shall be held within four months of the date of the dissolution of parliament. Suddenly, the word has gone out , "It is not something binding."

Mr Khemraj used article 162 to prove, or rather to attempt to prove, that article 69 was a matter of regulation, as it also is. Article 162 gives a power to the Elections Commission in circumstances of "danger or serious hardship" and after consulting the Prime Minister and the Leader of the Opposition, to postpone the election to another day, or to postpone it in "any area specified" to a day named in the notice.

Not a trained lawyer, but a law consumer, I have heard real lawyers argue the mandatory and regulatory signification of words before real courts. Moreover, I have moved the courts on constitutional matters which the PPP never even perceived, and have had these distinctions thrown at me by state lawyers. I suspect that they can be overdone, when as in the present argument, they are used to erase the written law. In other words, the distinction between regulatory provisions and mandatory provisions, apart from the plain meaning of the words and phrases, is largely a matter of how strong the advocacy is. (This is legal heresy, lawyers will say.)

There is mandatory language, but if the legislature entrenches an article, that entrenehment cannot be treated as mere caprice. It may enjoy an overt safeguard of a two-thirds majority, rather than a safeguard of argument.

Since on the face of it many articles of whatever importance carry no particular mandatory phrasing, and I have cited articles 60 and 69, then what we are being told by eminent counsel , Peeping Tom and Mr. Ramjattan, is that there is no objective test of a mandatory provision. It is a matter of circumstance, of context, and of the force of argument of the two sides and the perceptions of the court.

One answer to Mr Khemraj can be that no such condition as that in 162 is attached to article 69. By pointing to 162 he is also underlining the lack of conditions to the observance of article 69.

In this case I think that both Peeping Tom, now no longer so mysterious ,and Mr. Ramjattan argued well, and have taught me much. I wish to press the proposition however, that the entire constitution is mandatory.

On the face of it, article 69, unlike 162 especially, could not foresee the manifest arrogance of a ruling party in a parliament that would not listen to the other side in the same chamber. The President's decree by announcement, appointing September 28 for the convening of parliament, is not covered by anything in 69.

Between 1970 and 1972 the President Of Guyana enjoyed by law and for a specific purpose, the right to amend laws by decree.

Peeping Tom and his learned colleague stressed that the courts try to find what the provisions intended. I am not sure that they are here referring mainly to constitutional provisions, although this is also the case. I would recommend to find what the makers intended, another test. : What effort has been made by the constitution to safeguard the provision or article from flippant change. The device which Guyana constitution -Caribbean constitution making employs is its entrenchment.

Since two thirds a majority is rare in a parliament, our two modern cases being 1953 with the original PPP and the "fairly tale" majority of 1973 claimed by half of the original party. The constitution is enforcing more than a one party agreement in the alteration of these provisions. The public should be concerned about any citizen who seeks to dispense with this safeguard.

Mr. Ramjattan argues well the purpose of article 69, namely, to ensure that the newly elected executive is not too long without the oversight of parliament. If the provision (69) had such a high purpose, then why did the PPP and Mr Ramjattan all members, of parliament openly reject the first chance of preserving such a guardian provision?

Tom affirmed, as Tom has affirmed many things,

"The proposed amendment to Article 69 would have extended the time following an election by which the Assembly should be convened. However, the opposition wanted a proviso inserted and that provision was that the amendment should not take effect without the consent of all the political parties represented in the National Assembly..''

I accepted that statement.

Mr/ Corbin later wrote, "It should be noted that in the Parliament I placed absolutely no conditionality in my in my proposed amendment of Article 69Š "

I accept that statement.

However, assuming that Mr Corbin wrote conditions into his amendment, both Ramjattan and his new pupil, Peeping Tom, are ignoring the fact that a sworn guardian of the constitution namely an MP can propose an amendment to any motion or amendment on the floor of the Assembly, during a debate, if there is danger of another member trying to propose something against the spirit of the constitution, or for some other reason. Unless Peeping Tom can assure readers that the PPP attempted to amend the PNC's amendment , and did not merely reject it or dismiss it for lack of full agreement, his pleading is eloquent but empty.

What in that particular debate, not in the 28 years, what in that debate did the opposition do wrong? What did the majority party do right? In what way did the opposition fail in its duty? Why did the government side fail in its duty? Having allowed their malice to control their reason, Now they look to the courts for rescue. The incident is a symptom of a deep seated malady.

Peeping Tom is also conceding without intending it that rather than find language to accommodate the convening of parliament within a reasonable space of the elections , the PPP mp sin the National Assembly failed in their duty. He has excused their recklessness and now assures us of how proper courts will m approach the matter.

For all its faults, the opposition did not sit idly by and allow the PPP blunder in its wayattempt to amend the Constitution. Corbin stated in SN, "This matter was brought by to the attention of the government by me in the parliament and I proposed a consequential amendment to Article 69 of the Constitution to avoid the present situation. The Attorney General, Mr. Doodnauth Singh and Dr Leslie Ramsammy who spoke on the motion arrogantly refused that advice. They rejected the amendment and stated that they had a solution. To the matter. It is this solution which I now request that they make public."

The PPP and its collaborators gave the PNC a badly needed moral victory.

The PPP has made it clear in so many ways that as majority party, it cannot separate the party from the government.

How the opposition can or will use it to serve its supporters' interests is left to be seen.