By Dr Bertrand Ramcharan
Seventh Chancellor of the University of Guyana; Barrister-at-Law; Honorary Commissioner of the International Commission of Jurists
I am aware that constitutional revision in Guyana is a matter of high politics – and the political parties have not yet shown their hands. Yes, I know that the Commission on Constitutional Reform has not yet met. But I am mindful of the spirit of Article 31 of the Constitution, which provides that “It is the duty of the State to protect the just rights and interests of citizens abroad.” This citizen seeks to give back in love to the Dear Land of Guyana.
The Constitution of Guyana is now in its fifth decade and could do with some updating on matters such as: (1) Rendering its provisions gender-neutral: ‘He/She’; (2) Finessing references to socialism and ‘socialist legality’. (3) Increasing fines, such as the fine of two thousand, seven hundred and fifty dollars per day indicated in article 58; and (4) Updating the guarantees of fundamental rights to bring them in line with contemporary international norms. The first three items could be taken care of relatively easily – or over time, if preferred. The fourth item will require longer deliberations and could also be dealt with over time.
It has been recommended, with some wisdom, that the constitutional reform process could prioritise two key issues: (1) reconsidering the powers of the President; and (2) introducing provisions that could facilitate inclusive governance.
In this regard, it may be noted that Article 66 of the Constitution provides that subject to the special procedure set out in article 164, “Parliament may alter this Constitution”. Under Article 164. (1), subject to the provisions of paragraphs (2) and (3), “a Bill for an Act of Parliament to alter this Constitution shall not be passed by the National Assembly unless it is supported at the final voting in the Assembly by the votes of a majority of all the elected members of the Assembly.”
Under Article 164(2) A Bill to alter any of the following provisions of the Constitution, that is to say––
(a) Article 164 itself, articles 1, 2, 8, 9, 18, 51, 66, 89, 99 and 111; and
(b) articles 3, 4, 5, 6 and 7, 10 to 17 (inclusive), 19 to 49 (inclusive), 52 to 57 (inclusive), 59, 60, 62, 63, 64, 65, 67, 68, 69, 70, 72 (in so far as it relates to the number of regions), 90 to 96 (inclusive), 98, 108, 110, 116, 120 to 163 (inclusive, but excepting article 132), 168 to 215 (inclusive, but excepting articles 173, 185, 186, 192 (2) and (3) and 193), 222, 223, 225, 226, 231 and 232 (excepting the definition or “financial year”), shall not be submitted to the President for his assent unless the Bill, not less than two and not more than six months after its passage through the National Assembly, has, in such manner as Parliament may prescribe, been submitted to vote of the electors qualified to vote in an election and has been approved by a majority of the electors who vote on the Bill:
Provided that if the Bill does not alter any of the provisions mentioned in subparagraph (a) and is supported at the final voting in the Assembly by the votes of not less than two-thirds of all the elected members of the Assembly it shall not be necessary to submit the Bill to the vote of the electors. “
It will be noted that sub-paragraph (b) of article 164 provides that ratification of amendments to the Constitution that have been passed by Parliament may be carried out “in such manner as Parliament may prescribe, …[by] vote of the electors qualified to vote in an election and has been approved by a majority of the electors who vote on the Bill. With broad agreement in Parliament, ratification could conceivably be done by the Supreme Congress of the People provided for in the Constitution.
Different articles of the existing Constitution assign roles to the President, for example, to make appointments and to exercise the prerogative of mercy. However, the apex role of the President is regulated in Chapter X of the Constitution, titled ‘The Executive’. One could modernize the Constitution by making the changes indicated in bold below. We use here The Laws of Guyana, Cap.1:01, taken from https://www. oas.org/juridico/spanish/mesicic2_guy_constitution.pdf
Article 89: There shall be a President of the Cooperative Republic of Guyana, who shall be Head of State (DELETE: ‘the supreme executive authority’] and Commander-in-Chief of the armed forces of the Republic.
Article 99 (1): The executive authority of Guyana shall be vested in the PRIME MINISTER [DELETE ‘the President’] and, subject to the provisions of this Constitution, may be exercised by him/her either directly or through officers subordinate to him.
(2) Nothing in this article shall prevent Parliament from conferring functions on persons or authorities other than the PRIME MINISTER [DELETE ‘the President’.]
Subject to the provisions of article 185, there shall be an office of Prime Minister and such offices of DEPUTY PRIME MINISTERS /Vice-Presidents and other offices of Minister of the Government of Guyana as may be established by Parliament. [DELETE “or, subject to the provisions of any Act of Parliament, by the President”. ]
Provided that a person who is not eligible to be elected as President shall not be eligible for appointment as Prime Minister.
(1) The President shall appoint an elected member of the National Assembly to be Prime Minister of Guyana.
(2) The Prime Minister shall be the principal CABINET OFFICER [ DELETE ‘assistant of the President’] in the discharge of [HIS/HER] executive functions and leader of Government business in the National Assembly.
102. (1) The President’] may appoint Vice-Presidents for the purpose of assisting him in the discharge of his functions’.
(2) If he or she is not otherwise the holder of an office of Vice-President, the person holding the office of Prime Minister shall, by virtue of holding that office, be a Vice-President, and HE/SHE shall have precedence over any other Vice-President.
103. (1) The Prime Minister and every other Vice-President shall be a Minister of the Government of Guyana.
(2) Subject to the provisions of article 101 (1), Vice-Presidents and other Ministers shall be appointed by the President from among persons who are elected members of the National Assembly or subject to subparagraph (vii) of paragraph (3) (a) of article 160 are qualified to be elected as such members. ADD: VICE PRESIDENTS, DEPUTY PRIME MINISTERS AND MINISTERS MAY, IN THE JUDGMENT OF THE PRIME MINISTER/PRESIDENT, AS APPLICABLE, BE APPOINTED FROM AMONG PARTIES REPRESENTED IN THE PARLIAMENT.
(3) Not more than four Ministers and two Parliamentary Secretaries shall be appointed by the President from among persons who are qualified to be elected as members of the National Assembly.
104. [NO CHANGE SUGGESTED] Articles 101 (1) and 103 (2) shall have effect in relation to any period between a dissolution of Parliament and the day on which the next election of members of the Assembly is held pursuant to the provisions of article 61, or between a dissolution of a regional democratic council or of the National Congress of Local Democratic Organs and the day on which the next election by that council or by the Congress is held pursuant to the provisions of paragraph (3) or (4) of article 60, as the case may be, as if Parliament of that council or the Congress, as the case may be, had not been dissolved.
105. A Minister who was not an elected member of the Assembly at the time of HIS/HER appointment shall (unless HE/SHE becomes such a member) be a member of the Assembly by virtue of holding the office of Minister but shall not vote in the Assembly.
106. (1) There shall be a Cabinet for Guyana, which shall consist of [ DELETE: ‘the President’], the Prime Minister,[ the Vice-Prime Ministers and Vice-Presidents], and such other Ministers as may be appointed to it by the [Assembly] [Delete: ‘President’.
(2) The Cabinet shall [DELETE:’ aid and advise the President in’] PROVIDE the general direction and control of the Government of Guyana and shall be collectively responsible therefor to Parliament.
(3) Cabinet Meetings shall be presided over by––
(a) the PRIME MINISTER [DELETE ‘President’];
(b) DELETE: “in the absence of the President, the Prime Minister; or”
(c) in the absence of [DELETE: ‘the President and’] the Prime Minister, such Minister as the PRIME MINISTER [DELETE ‘President’] may designate.
(4) The Cabinet may act notwithstanding any vacancy in its membership or the absence of any member thereof.
(5) At the invitation of the PRIME MINISTER [DELETE ‘President’] or of any person presiding at a meeting of the Cabinet, a Minister who is not a member of the Cabinet may attend that meeting and participate fully in the proceedings as if HE/SHE were a member.
(6) The Cabinet including the President shall resign if the Government is defeated by the vote of a majority of all the elected members of the National Assembly on a vote of no confidence.
(7) Notwithstanding its defeat, the Government shall remain in office and shall hold an election within three months, or such longer period as the National Assembly shall by resolution supported by not less than two- thirds of the votes of all the elected members of the National Assembly determine, and shall resign after the President takes the oath of office following the election.
107. The PRIME MINISTER [DELETE: ‘President’] may assign to any Minister responsibility for any business of the Government of Guyana, including the administration of any department of Government, and shall be charged with all responsibility not assigned to any Minister; in respect of responsibility so charged, the President shall appoint a Minister or Parliamentary Secretary to be answerable to the National Assembly therefor on his or her behalf.
Provided that authority to exercise any power or discharge any duty that is conferred or imposed by any other provision of this Constitution or by any other law on any person or authority shall not be conferred under this article.
108. The office of a Minister shall become vacant in the circumstances set out in article 183.
109. Whenever any Minister is absent from Guyana or is unable by reason of illness to perform his functions as Minister, the PRIME MINISTER [DELETE: ‘Presi-dent’] may authorise some other Minister to perform those functions and that Minister may perform those functions until they are resumed by the first mentioned Minister or are assigned to another Minister pursuant to the provisions of article 107.
110. (1) There shall be an office of Leader of the Opposition, election to which shall be in accordance with article 184.
(2) Qualifications for election to the office of Leader of the Opposition and other matters connected therewith are regulated by article 184.
111. (1) In the exercise of HIS/HER functions under this Constitutions or any other law, the President AND THE PRIME MINISTER shall act in accordance with THEIR own deliberate judgment except in cases where, by this Constitution or by any other law, HE/SHE is required to act in accordance with the advice or on the recommendation of any person or authority.
(2) Where by this Constitution the President OR THE PRIME MINISTER ARE directed to exercise any function on the advice or recommendation of any person or authority, HE/SHE may, in accordance with HIS/HER own deliberate judgment, once refer any such advice or recommendation back for reconsideration by the person or authority concerned and if that person or authority, having reconsidered the original advice or recommendation, substitutes therefor a different advice or recommendation, as the case may be, the President OR THE PRIME MINISTER, AS THE CASE MAY BE, shall act in accordance therewith; but save as aforesaid HE/SHE shall act in accordance with the original advice or recommendation.
112. (1) There shall be an Attorney General of Guyana who shall be the principal legal adviser to the Government of Guyana and who shall be appointed by the PRIME MINISTER [DELETE ‘President’. ]
(2) Qualifications for appointment to the office of Attorney General and other matters connected therewith are regulated by article 185.
113. (1) The PRIME MINISTER [DELETE ‘President’] may appoint Parliamentary Secretaries to assist HIMSELF/HERSELF or Ministers in the discharge of their functions.
(2) Qualifications for appointment to the office of Parliamentary Secretary and other matters connected therewith are regulated by article 186.
114. Every Minister and Parliamentary Secretary shall, before entering upon the duties of his office, make and subscribe the oath of office.
115. Where the PRIME MINISTER[ DELETE ‘President’] or any Minister has been charged with responsibility for any department of Government, HE/SHE shall exercise general direction and control over that department; and, subject to such direction and control, the department shall be under the supervision of a permanent secretary, whose office shall be a public office:
Provided that two or more government departments may be placed under the supervision of one permanent secretary.
116. (1) NO CHANGE SUGGESTED. There shall be a Director of Public Prosecutions whose office shall be a public office.
(2) The functions of the Director of Public Prosecutions are set out in article 187.
117. (1) NO CHANGE SUGGESTED. There shall be a Secretary to the Cabinet whose office shall be a public office.
(2) The Secretary to the Cabinet, who shall have charge of the Cabinet Office, shall be responsible in accordance with such instructions as may be given him by the PRIME MINISTER [DELETE ‘President], for arranging the business for, and keeping the minutes of, the Cabinet and for conveying the decisions of the Cabinet to the appropriate person or authority and shall have such other functions as the President may direct.
118. (1) NO CHANGE SUGGESTED. Cabinet may establish sub-committees of itself for the purpose of attending to any of its responsibilities.
(2) Cabinet may in particular establish a finance subcommittee of itself to be assisted by experts and advisers, including the Auditor General, and charge it with responsibility for supervising the financial affairs of the State and for instituting, monitoring and enforcing systems of financial control and discipline throughout the service of both central and local government, including the service of corporations, boards and agencies established by the Government.
119. Subject to any provision made by Parliament, the PRIME MINISTER [DELETE ‘President’] may appoint standing committees consisting of such persons as HE/SHE may deem fit for the purpose of reviewing of examining any aspect of national life and making recommendations or otherwise reporting thereon to the Government of to Parliament.
119A. (1) The National Assembly shall establish a Parliamentary Standing Committee for Constitutional Reform for the purpose of continually reviewing the effectiveness of the working of the Constitution and making periodic reports thereon to the Assembly, with proposals for reform as necessary.
(2) To assist it in its work, the committee shall have power to co-opt experts or enlist the aid of other persons of appropriate expertise, whether or not such experts or other persons are members of the Assembly.
119B. (1) There shall be parliamentary sectoral committees established by the National Assembly with responsibility for the scrutiny of all areas of Government policy and administration including –
(i) Natural resources
(ii) Economic services
(iii) Foreign relations
(iv) Social services.
(2) The Chairperson and Deputy Chairperson of each parliamentary sectoral committee shall be elected from the opposite sides of the National Assembly.
119 C. There shall be a standing committee of the National Assembly which shall have responsibility for initiating or otherwise taking such action or addressing such matters as may be entrusted to the Committee by the National Assembly in respect of functions required to be discharged by the Assembly under the Constitution in relation to the appointment of a member of a Commission established under the Constitution.
120. Subject to the provisions of this Constitution and of any other law, the PRIME MINISTER [DELETE ‘President’] may constitute offices for Guyana, make and terminate appointments to such offices, save that where the constitution of, and making of appointment to, such offices involve expenditure chargeable to the Consolidated Fund, such expenditure shall be subject to the approval of the National Assembly.
121. NO CHANGE SUGGESTED. The Prerogative of Mercy shall vest in the President and shall be exercised by HIM/HER in accordance with the provisions of articles 188, 189, and 190.
122. (1) NO CHANGE SUGGESTED. There shall be an Ombudsman for Guyana.
(2) All matters relating to the appointment and functions of the Ombudsman and other matters connected therewith are regulated by articles 191 to 196 (inclusive).
***
If and where needed, the rest of the Constitution could be brought in line with the foregoing refinements in the allocation of competences to the Prime Minister and the President. I have taken the risk of drafting in public. There is obviously room for discussion, and I would pray the reader to make allowance for this.
The foregoing suggested changes do two important things: first, make the Prime Minister and the Cabinet the anchors of Government. Second, provide for Vice-Presidential, Vice-Prime Ministerial, and Ministerial appointments from any party represented in Parliament, in the judgment of the Prime Minister.
A new dawn could illuminate the Dear Land of Guyana.
