Guyana’s Future Political and Constitutional Development:

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Douglas Mendes, SC

Will the Caribbean Court of Justice Have a Decisive Say on This?

COMMENTARY By Dr. Tara Singh
All is set for the Caribbean Court of Justice (CCJ) to have an important say in Guyana’s future political and constitutional development. The possible impact of their decision would be known when they hand down their ruling in the Basil Williams vs Cedric Richardson (3rd term) case. While the CCJ deliberates, we advance a number of points for consideration.

At the onset, we re-state our position: if the Parliament can alter entrenched provisions of the constitution (like setting term limits) without the conduct of a referendum, as deemed necessary by the Guyana High Court and the Guyana Court of Appeal, then what is there to stop Parliament from altering the constitution to get rid of the Caribbean Court of Justice and make Guyana Court of Appeal the final appellate court? What’s stopping them from extending the life of Parliament from 5 to 10 years? Trampling upon the people’s sovereignty is downright dangerous and it sets in motion a dictatorship that could even lead to anarchy. Recent Guyanese history attests to this trend.

While much focus is presently directed at the possible outcome of the “3rd term case” (in which Cedric Richardson is claiming that not allowing a 2-term President from running for a third term is depriving him (Richardson) of his constitutional right to vote for the person of his choice), there seems to be some slippage from the political radar of the various troubling social and economic problems that adversely affect the people of Guyana due to poor and ill-conceived policies of the PNC-led coalition government.

The government floats from one mess into another mess. From the huge controversies over the Exxon contract into the whereabouts of the signing bonus; from drug shortages into increasing robberies and murders; and from flowery rhetoric on transparency to widespread corruption. It seems that the government’s priorities are directed partly by an irresistible desire to avenge some wrongs, whether real or imaginary, committed by the previous PPP administration. Additionally, the government is working hard also to break, what they perceive to be, the strangle-hold that the PPP’s supporters supposedly have on the economy.

Notwithstanding, these and other illusions have goaded the government to embark upon a policy of “tax and spend” which allows them to shift resources from investment to consumption, and to take resources away from one ethnic group and allocate these to another. Rather than trying to create jobs and investment opportunities for their supporters and others, they are trying to destroy what has already been built by hard work and sacrifice, particularly in the productive agricultural sector.

The government’s approach towards the sugar industry is anything but enlightening. Their policy and action are seen as punitive because the sugar belt is the stronghold of the PPP and the PNC-led coalition wants to shake up that base. How much privatization and reopening of closed sugar estates will restore sugar workers’ confidence is uncertain. The sugar workers are left to accept whatever they are offered by GUYSUCO. Many of them don’t have a choice; they are vulnerable. Suffice to say that sugar workers are joining the breadline in the hundreds, and also many of their communities are at high risk of becoming impoverished.

Rice is also in a predicament. The government made it clear in 2015 that rice is not government’s business. Yet they want to make life difficult for the rice farmers. The PPP had cause to chastise the government for their harsh treatment of rice farmers. The PPP categorically condemned the “ongoing assault being perpetrated against our rice farmers, more particularly, those in Region 5.” Listing multiple concerns within the rice sector, “the party zeroed in on the recent rate increases, instituted by the Mahaica Mahaicony Abary Agriculture Developmental Authority Scheme (MMA/ADA), of $1,000 per acre to $7,000 per acre (an increase of 600%) and drainage and irrigation charges from $2,500 to $8,000 (an increase by 220%) for Region 5 rice farmers.” Even Professor Ivelaw Griffith, Principal and Vice Chancellor of the University of Guyana, recognizes the tremendous value of agriculture to Guyana’s development, something which the Granger administration cannot grasp, or don’t want to accept. Despite the government’s negative attitude towards the rice industry, it will not collapse mainly because it’s in private hands. The prospect of oil wealth is blurring the government’s vision.

This coalition government is more interested in consolidating and retaining their power post-2020 general elections, than in anything else. All their major policies and actions point in this direction. All other matters are subservient to this almost neurotic pre-occupation of theirs. The PNC-led government whose operatives conceived and wrote the 1980 constitution, have been utilizing certain provisions of the constitution to their party’s, but not necessarily the national advantage. They know that the constitution is a primary source of power for the restoration of party paramountcy and the utilization of authoritarianism. Mr David Granger, for example, finds that he can interpret the constitution to get whatever results he wants. Another test of his grand design will soon be announced by the CCJ which will rule on whether or not former President Bharrat Jagdeo can run for a third term as presidential candidate.
To cite the 1978 referendum as the basis of authority for Parliament to alter entrenched provisions of the constitution, is to allow for the continued distortion of the doctrine of “people’s sovereignty.” Almost every Guyanese knows that the 1978 referendum was illegally foisted upon the people, and where just 15% of the eligible Guyanese population voted. That was an act not only of infamy but also of tyranny perpetrated by the PNC government. To dress that 1978 obscene act with a cloak of legality or respectability is likened onto giving the devil credit for not destroying us, yet! The Richardson’s case also represents the first challenge to the 1978 referendum and he prevailed at the Guyana High Court and at the Guyana Court of Appeal.

Even if a small fraction of the people voted for a provision for which they were intimidated and coerced, that act in itself was illegal and unconstitutional. The fact that it was not challenged before does not make it constitutional. The Guyana High Court and the Guyana Court of Appeal in their respective rulings (3rd term case) have, in effect, knocked down the 1978 referendum as unconstitutional. Guyanese had dared not challenge the 1978 referendum during the PNC reign, or they would have had to face the unmitigated wrath of the Kabaka and his anointed one!

What is ironic in this process is that Guyana’s constitutional and political development will be determined, in large part, by a non-Guyanese group which constitutes the Caribbean Court of Justice that is resident in Port of Spain, Trinidad. The CCJ’s decision will either reinforce or validate Burnham’s 1980 constitution by rejecting Richardson’s case for a 3rd term presidency or accept his (Richardson) arguments on the unassailability of the people’s sovereignty which demands their consent on major constitutional changes through the conduct of a referendum.

The significance of the referendum is demonstrated in the Brexit experience. The British constitution has no provision for a referendum. It’s not part of the British’ constitutional process. However, recognizing the people’s sovereignty, the British government had to get the consent of the people through the conduct of a referendum before the British exit the European Union. The people’s sovereignty is paramount.

One other related point. All the English speaking Caribbean Prime Ministers (PM) can run for office for more than two terms. Keith Mitchell of Grenada is a 5th term PM. Why impose term limit for the Guyana President, who enjoys the same status in terms of power as any Caribbean PM?

It’s not only the 3rd term case that’s of grave significance to democracy as well as to the people’s sovereignty, but it would also allow Mr David Granger to move on the same path as he did with the unilateral appointment of Justice James Patterson as GECOM Chair, to also unilaterally appoint the Chancellor of the Judiciary and the Chief Justice. He is waiting on the CCJ’s ruling to plot his next move. If the ruling favors Granger’s government, in other words, if Bharrat Jagdeo is not allowed to run for a 3rd term, Granger will be emboldened to make those two top judicial appointments without the consent of the Leader of the Opposition. If he does, he would be violating Article 127 (1) of the constitution which clearly states: “The Chancellor and the Chief Justice shall be appointed by the President acting after consultation with the Minority Leader.”

The Guyana Attorney General Basil Williams had boasted in a leaked memo, “our people preside at the CCJ” Clearly he was subtly referring to race as the dominant criteria. Frankly, despite that there is no Indian on the 7-member CCJ, I don’t think that they will be moved by Basil’s implosion. Issues of conflict of interest have arisen at least for the Chief Judge. However, we believe that the CCJ will not allow racial consideration or other external forces to impugn their professional integrity.

It is apparent that the Guyana constitution has to be overhauled. And as everyone knows, constitutional reform has been the top priority of the coalition. They promised to get this done within one year of their taking office. Three years have gone by and constitutional reform will not likely happen during the 5-year tenure of this coalition government. The Granger administration knows that it would continue to interpret the existing constitution to its advantage. Granger knows that the 1980 Guyana constitution is compatible with the expression of authoritarianism. This suits a minority government that does not want to lose power at any cost! Mr David Granger knows this more than anyone else!

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The views expressed in this column are solely those of the writer and do not necessarily represent the views of the THE WEST INDIAN.

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