In his presentation to the last biannual congress of the AFC, Chairperson Mr. Nigel Hughes made some suggestions for constitutional change, which I promised to consider. Although they are incomplete, it is good that the AFC has made these proposals relatively early to give the general public sufficient time to consider them. Indeed, in presenting the issue the way he did, Mr. Hughes has performed the useful task of facilitating our considering relevant aspects of Guyana’s political system in their practical and theoretical contexts.
The process leading to constitutional reform is also very important, and I believe that the suggestion from the Guyana Human Rights Association that civil society take a lead in the reform process is eminently sensible.
From the outset, let me state that I root my contribution in the belief that in considering matters such as these, we must take into account both our history and goals and theories of constitutional change and should not attempt to reinvent the wheel but learn from practices elsewhere.
Mr. Hughes titled his speech “New Day for Inclusionary Democracy”, located it in Article 13 of the Constitution, which has a similar orientation, and suggested some changes that he sees as being necessary to meet the commitment to inclusionary democracy.
If my reading of Mr. Hughes is correct, his main contention is that this commitment to inclusionary democracy is not properly expressed in the power relationships between the institutions that constitute the “supreme organs of democratic powers,” i.e. parliament, the president and the cabinet. In “unmasking … the true architecture behind the distribution of power” between these elements, he finds that the president trumps the others. His aim is to realign the elements in what he considers a more appropriate democratic fashion suited to our divided society. A central feature of his solution is “A new constitution (that) … envision(s) a cabinet which includes key appointments from the specifically qualified nominees from the political parties in proportion to the votes secured at the National election.”
In passing, it does not take much to see that this formulation takes a most questionable course. It leaves us without a political opposition and opens up the possibility of an endless dictatorship! But I will deal with these more or less structural difficulties later.
Article 51 of the Constitution states that: “There shall be a Parliament of Guyana, which shall consist of the PRESIDENT and the National Assembly”. The distribution of power in Article 89 then makes the president the “supreme executive authority” of the land. On top of all of this, the constitution gives the president the power to appoint and terminate the appointment of members of the cabinet, the third organ of democratic power. Furthermore, Article 99 does not vest executive authority in the Cabinet but in the President.
“In a word,” Mr. Hughes insisted, “of the three supreme organs of democratic power in Guyana, the President constitutes two and a half parts namely the one half of the Parliament, the complete Presidency and the complete power to identify, constitute, appoint and remove the Cabinet.”
Put like this in the demagogic atmosphere of a party congress, this might appear alarming but how different is it from what exists in other liberal democratic presidential systems?
Let us consider the archetypical presidential system – that of the United States of America. Presidential immunities, which I will deal with later, apart, it appears to me that the US and Guyanese presidents stand in a similar relation to their legislatures and cabinets.
What is important about Article 51 is not the mere fact of a relationship but the substance of it. The problem arises because by Article 170 “When a bill is presented to the President for assent, he shall signify that he assents or that he withholds assent” within 21 days after it was presented to him. But if it is passed by a two-thirds majority in the Assembly and returned to him within six months of his first returning it, “the President shall assent to it within ninety days of its presentation.”
This is not much different from what pertains in the US, where once legislation has been passed by both Houses of Congress, the president has four ways of dealing with it. He may assent to it within 10 days, issue a regular veto, let the bill become law without his signature or issue a “pocket” veto by simply ignoring it when congress is out of session. Overriding the veto requires a two-thirds majority vote in both Houses.
As to the executive authority of the US president and his relationship to the cabinet, here again the situation is similar. Article 2:1 of the US Constitution states “The executive Power shall be vested in a President of the United States of America.” And the relationship between the US president and the cabinet appears far more commandeering than in Guyana:
“… cabinet members are … appointed by the President and confirmed by the Senate. ….They serve at the whim of the President. … Typically, the cabinet meets … weekly. However, because the cabinet is not a legal institution, meetings can be at any interval. In fact, the cabinet may not necessarily ever meet at all. In fact, there need not even be a cabinet. Some have questioned the need for a cabinet, and some modern presidents made little use of them. (http://www.usconstitution.net/consttop_cabi.html?PageSpeed=noscript).
Since the 1880s, Alexis de Tocqueville in his “Democracy in America”, still considered by many the most important work about democracy ever written, claimed that America was the only extant country where the social democratic revolution appeared to have nearly reached its limits. Somewhat noteworthy for us, he identified three features of American democracy that contributed to its flourishing democracy: local government, civil society and what he called the spirit of religion.
Power relations similar to ours between the institutions of what we call “supreme organs of democratic power” have not prevented America from being still considered one of the most open and inclusively democratic countries. Why then should they so negatively affect our perception of democracy in Guyana?
henryjeffrey@yahoo.com
