The members of the Constitutional Reform Commission were sworn in early last month. Since they are charged with consulting the citizenry on possible changes to this country’s foundational document, it might have been thought the air would be thick with public debate on the issue. Not so. It may be that part of the problem resides in the nature of the mandate created for the Commission under the Act. That mandate did not suggest that the government had any interest in reforming the Constitution at all, in so far as the list consists predominantly of matters which are aspirational and as such unenforceable unless supplemented by secondary legislation.
Of the practical reforms the Commission has been asked to forward to citizens for consideration, the one which stands out relates to elections, which is something the public would certainly be interested in. It is likely, however, that neither the government nor the opposition will be disposed to advance proposals about radical reform of the Guyana Elections Commission that is so desperately needed.
There is one subject of a practical character which has been discussed by two lawyers in recent times that has always generated public interest and that is the presidency. In one of his Sunday columns in this newspaper Mr Ralph Ramkarran weighed in on the immunities enjoy-ed by the President. He wrote that Guyana’s pre-sident was placed above the law by Article 182(2) of the Constitution, at a time when it was thought that if the President were to lose office for some reason he might have to face criminal prosecution. This was an oblique reference to Forbes Burnham, for whom the presidency was created.
Following an egregious example given by Donald Trump Mr Ramkarran went on to say: “In Guyana a President can stand up in Regent Street and shoot a shopper dead and by virtue of article 182(2) he or she would be immune from prosecution even after he or she ceases to be President. The article clearly states that no criminal or civil proceedings shall be brought against a President for any act or omission committed by him or her in his or her private capacity.”
His hope was that the Constitutional Reform Commission would recommend the sanitising of the Constitution to eliminate “this diabolical tra-vesty of equating our President to a monarch.”
Mr Ramkarran was answered by Mr Christopher Ram in a letter to this newspaper. He was not altogether in agreement with Mr Ramkarran in terms of his understanding of Article 182(2), and expressed the view that “Properly interpreted, the immunities are not unreasonable.” What he did have strong views about was the “all-powerful Executive Presidency whose holder is more answerable to his Party’s Congress and to a Cabinet appointed by him or her than to the people or their parliamentary representatives …”
Perhaps it should be said first that once in office a President is not beholden to his party’s Con-gress, since under current constitutional arrangements the latter has no levers by which s/he can be controlled, except the threat that the incumbent might not be nominated for another term. In a second term, however, s/he can cheerfully ignore them all and they will be in no position to do anything about it. Furthermore, a president will not be answerable to a cabinet for the simple reason that s/he is the one who appoints its members and has the power of dismissal.
What is definitely the case, as Mr Ram says, is that a president in this country is not answerable to the people or their parliamentary representatives. He or she does not sit in Parliament, and under the PPP/C the Prime Minister who currently represents the President, is not, and has never been since 1992, a member of the ruling party. Nobody, therefore, believes that the PM has any inside knowledge and therefore real authority to respond in a meaningful way to opposition MPs.
Furthermore, the current President, like his predecessor, rarely makes himself available to answer questions from the press, other than when he is caught briefly on the sidelines of some engagement. Press conferences seem to be the domain of the General Secretary of the PPP and Vice President Bharrat Jagdeo, who does sit in Parliament. He holds them weekly answering questions not just on party matters and his own government portfolio, but every other conceivable matter. It is as if he is fulfilling the role of the old Leninist-Stalinist General Secretaries.
Be that as it may, in the meantime his boss chooses only to address the public periodically, or make statements. But as said earlier, he avoids a real exchange with the media about the larger, more troublesome issues affecting the nation, which would be quite appropriate if he were a constitutional president and not an executive one.
What Mr Ram goes on to write is really quite radical, although perhaps there is an argument for saying that he does not follow his position to its logical conclusion. He says that the President “makes an overwhelming majority of constitutional and statutory appointments, including members of the Integrity Commission, Boards and Agencies … is the sole authority for the appointment of a Com-mission of Inquiry and of all diplomatic representatives … pays no taxes but yet grants concessions as if s/he owns Guyana; and … can refuse to assent to legislation passed even unanimously by the people’s parliamentary representatives.”
He goes on to observe that worse still, the Presi-dent can exercise these powers even as head of a minority government. He then asks rhetorically which democracy, monarchies not excluded, can boast of having one person who holds such powers, and concludes by saying, “It is the executive presidency which is the real diabolical travesty,” which needs cleansing.
Exactly what kind of presidency Mr Ram has in mind is not spelt out; putting an executive president into Parliament, for example, would be problematic, and denuding him of most of his powers would require creating a much more complex web of responsibilities than obtains at present. One possible conclusion from what he writes might seem to be a return to an older system of government which obtained under the 1966 Constitution as amended in 1970, i.e. a prime ministerial system.
It must be said that no party in this country, including very small independent ones like Mr Ramkarran’s ANUG has ever proposed reviving the prime ministerial model. The presidency was created for Mr Burnham because he wanted the kind of powers and status not accorded a prime minster, and every party since then and all the politicians associated with them have not been able to resist the lure of the presidency. The most they seek is a reduction in its powers, although the PPP has shown no appetite even for that, and APNU only when in opposition.
It might be observed that the presidency in and of itself does not confer status; what matters is the influence of the country itself. The head of government in India, the largest democracy in the world, is a prime minister, as it is in the UK. Germany’s head of government is a chancellor, and like India it has a constitutional president. In fact many European countries leave executive power in the hands of their prime ministers (although not France) not to mention the anglophone Caribbean territories.
In our own country, of course, where there is such tension of an ethno-political kind, it could be argued that a more low-key form of government with less emphasis on a single personality as head of state and government has advantages to recommend it, in addition to which it would bring our chief executive officer back into parliament. That such an idea would be rejected by the PPP is almost certain, and in this they would probably be joined by the opposition too.
Whatever the case, it is good that Messrs Ramkarran and Ram have raised the matter of the presidency for discussion in the public domain, and following their example, it is now for other citizens to express their views too, and begin a true debate about the constitutional issues in which they have an interest.
