Constitutional reform is once again in the air and it may well be an issue in the upcoming election campaign.
The last effort at constitutional reform was made in 1999-2000. The Constitution Reform Commission (CRC) sat for six months, visited all regions of Guyana, received oral and written submissions from individuals, parties and groups and accepted local and overseas expert advice. The Report of the CRC was substantially adopted by the National Assembly and the Constitution amended to give effect to the recommendations. The implementation of a few important provisions, such as the establishment of the Human Rights Commission and the Procurement Commission, are still outstanding.
The main issues which are still persistently raised in discussions are the powers of the President, the immunities of the President and inclusive governance. These matters were addressed during the constitutional reform process.
When confronted with the actual reality of reducing the powers of the President, the CRC discovered that not a great deal could be done within the context of a presidential system. The constitution which had been held up as the model during the period of constitutional reform was the South African Constitution. It provides, like ours, that the President is the chief executive, commander in chief and head of the cabinet which are the main sources of presidential authority. It goes further and enables the President to issue executive orders and proclamations.
Nevertheless the CRC recommended the amendment of some articles to reduce the powers of the President. These were implemented by the National Assembly. They were substantive. For example, the power of appointment of constitutional commissions was removed from the President and transferred to the National Assembly. The supervision of the work of the Auditor General were transferred from Government to the National Assembly. The President’s discretionary authority over pensions was removed. The President’s methodology of consultation with the Leader of the Opposition was strengthened. These, however, have not satisfied the critics. They complain still about the President’s ‘enormous’ powers and urge a slash and burn approach, as if their objective is to denude the presidency of any authority .
Only a minor modification was made in the immunities provided by the Constitution for the President because there was no agreement otherwise.
The issue of inclusive governance focused on enshrining shared governance in the constitution. The CRC did not agree because the majority of members did not support it. It was pointed out that shared governance can be effected without reform to the Constitution providing the parties agree. Arising out of this debate was the recognition that stronger mechanisms needed to be put in place to ensure more inclusive governance. This gave rise to Article 13, a non-justiciable provision, which establishes that the principal objective of the political system is to establish an inclusionary democracy by providing increasing opportunities for the participation of citizens and their organizations in the management and decision-making processes of the State, with particular emphasis on those areas of decision-making that directly affect their well-being.
In relation to the powers of the President, more can be done to assuage public opinion which still recoils from the experiences of the era of the maximum leader for whom, it is popularly believed, the post was designed.
As it turns out the President of Guyana, even though he/she is the chief executive, cannot exercise that executive authority in a formal way as the South African President, by issuing executive orders. This is most likely the reason why decisions in Guyana are made by the Cabinet even though the Cabinet has no executive authority and is merely an advisory constitutional body. This is an extra constitutional decision making process and should be changed. It can be done by restoring the decision making authority of the Cabinet and this, more than anything else done so far, will formally reduce the President’s powers by making him/her primus inter pares. It would mean that the Cabinet can formally defeat a proposal or initiative by the President which it cannot now do.
The immunities of the President are extensive and unnecessary. Because of this there has been continuing criticism of the immunities which virtually absolve the President from all civil or criminal liability, in pursuance of his duties and in his/her personal capacity, for life. All that is necessary to protect a President is immunity from liability for acts done in the course of performing his/her duty. This is captured by Article 182(1). Article 182(2) which protects the President from acts done in his/her private capacity should be repealed. Article 182(3) which protects a former President form a limitation of time to institute proceedings should also be repealed.
These two proposals might not be the only ones that are possible but they are substantial enough to impact significantly on the powers of the President and should attract public support even though the debate is unlikely to end.
Shared governance is a political issue, not a constitutional one. Unless there is political agreement it is unlikely that there would be constitutional reform to introduce shared governance. In any event, constitutional reform is not necessary for a coalition government which shared governance really is.
However, it would be possible to amend Article 13 to particularize the groups of citizens who are to be consulted in the management and decision-making processes of the State as well as the areas of decision-making. This Article can then be made justiciable so that the groups which are granted the right to be consulted can institute legal proceedings if they are not and for the decision to be stayed while their case is pending. This would be a major advance in constitutional protection for groups of people who are offered such protection, in addition to the constitutional commissions and parliamentary sectoral committees which were created.
Constitutional reform in Guyana is still an emotive issue. It is based on a view that the current constitution is tainted by its provenance even though the Constitution retained provisions relating to the electoral system, fundamental rights, the judiciary, the executive (save for the Presidency), parliament, financial provisions, the constitutional bodies, protection for public officers and others. And the impositions of the Supreme Congress of the People and related bodies have been repealed.
The process of constitutional reform is not at an end. It is just beginning and will continue until political consensus is achieved.