Failure on constitutional reform is as much the PPP’s as it is APNU+AFC’s
Dear Editor,
One of the few people in the PPP that I hold respect for is Anil Nandlall, primarily for the tenacity and high intelligence he displays on legal issues. I believe that within a better vehicle than Freedom House under Mr. Jagdeo, the former AG’s superior acumen on constitutional and other legal matters can be used for the good of the country.
It was therefore surprising to read a letter by Mr. Nandlall, ‘APNU+AFC failed completely on constitutional reform’ in which he takes the coalition to task for failing on its 2015 manifesto promise in this critical area.
Not that I disagree with him completely. Yes, this administration has not only failed miserably on its campaign promises on constitutional reform but given the power to take leadership on this issue as a government, it has in fact regressed.
The APNU Manifesto of 2011 had fairly solid rhetoric on what then leader of the opposition Brigadier David Granger claimed to be a vision for the good life for all Guyanese. Notably, one key objective was:
“Undertaking constitutional reform to remove the scope for abuses and excesses carried out with impunity by the Executive and by the President, in particular. Part of the solution lies in reform of the National Assembly to ensure checks on the majority in the Legislature and on the Executive so that the interests of the nation as a whole and the interests of substantial minorities are taken into account.”
With regard to more direct representation of the people at the highest level of government, the manifesto promised “a mixed system of elections, combining constituency representation with a small number of seats elected by proportional representation”.
The APNU+AFC manifesto of 2015 went even further, with the section on governance quoting in its opening paragraph that “The PPP has raped the Constitution by its abuse of presidential powers and ignoring of statutory obligations, including the appointment of Commissions and oversight bodies. Constitutional, electoral and parliamentary reforms are imperative.”
What followed was a not comprehensive but still solid framework plan for CR, both directly and indirectly. In contrast, the only mention of constitutional reform President Granger has made on the campaign trail is his intention of the removal of the one check on hyper-presidential power that exists in the current constitution, the no confidence motion, the very thing he threatened former President Ramotar with in 2014, an action that triggered the elections that brought him to power. The APNU+AFC’s manifesto commitment to CR this time around? Three simple, bullet points:
“* Continue The Work Of The Constitutional Reform Consultative Commission
* Continue The Allocation Of Funding For Country-Wide, Community Consultations
* Commit To Contributing To A Constitution Which Reflects The Will Of The Wider Society, Country-Wide.”
Both President Granger and former President Jagdeo have stated that the process of constitutional reform has to be approached “carefully” and that constitutional reform has to come after consultation with the people and their respective governments will implement that process in the next term. Both have also hinted about the super majority needed for constitutional reform measures to be passed into law. Considering that both men should have a familiarity with the process going forward, the conclusion is that they are both being deliberately disingenuous on this issue.
Firstly, the responsibility for constitutional reform is not the purview of the executive branch of government – it is the responsibility of a Constitutional Reform Consultative Commission, as referenced in the coalition’s 2020 Manifesto and quoted above. The problem of course is that them saying that they will “continue the work” of the Commission is logically impossible considering that the Commission does not in fact exist. In July of 2017, the Constitutional Reform Consultative Commission Bill was read before Parliament by PM Nagamootoo but it disappeared within a bipartisan select committee, just like the Copyright Bill of 2004, and a Campaign Finance Reform Bill slightly after that if my memory serves me correctly.
If either President Granger or Jagdeo had read it, they should have known that provision for the very national consultation that they insist on coming before constitutional reform exists in the CRCC Bill, including the specific areas in each administrative region that consultation is to take place. And if either them had any genuine interest, they would have had the Bill debated and passed in Parliament three years ago. Indeed, if the government were interested in keeping to its promise on constitutional reform, it could have used its simple majority of 33 (the 34 majority being only a later fiction) to pass the CRCC Bill since it merely established the Commission that would direct the constitutional reform consultation process and was not an aspect of constitutional reform in itself.
Mr. Nandlall notes that the Standing Committee on Constitutional Reform was chaired by Williams. What he neglected to mention was the full membership of the SCCR: in addition to the Chair on the government’s side, there was Dr. Rupert Roopnaraine, Raphael Trotman, Khemraj Ramjattan and Nicolette Henry; on the opposition side, there was Priya Manickchand, Dr. Frank Anthony, Adrian Anamayah, and, well, Anil Nandlall. That committee as constituted met just, on average, once per year over the past five years.
The APNU+AFC engaged in a curious bit of theatre from the beginning, the vesting of the responsibility of Constitutional Reform in the Office of the Prime Minister, a farce that they seem insisting on giving an encore perform of by promising that CR (honestly, this time, really) will be pushed through under a potential PM Ramjattan. The proper mechanism for CR under the Constitution – something the President says he likes to stick to – is the Parliamentary Standing Committee. When the PM’s office therefore initially commissioned the group led by Nigel Hughes, the ambitiously but erroneously titled “Steering Committee on Constitutional Reform”, what was estab
lished was a constitutionally invalid mechanism, something Mr. Nandlall as a member of the Standing Committee failed to point out. What retroactively validated the Steering Committee’s report is when it was accepted by the Standing Committee since it is only the latter, not the PM’s office, that has the constitutional purview to commission any plan of action on constitutional reform.
This farcical dance on constitutional reform is not new. It has been ongoing for the past twenty years, ever since the CR measures of 2001. After a visit to Guyana in 2004 in which he engaged with both then President Jagdeo and then leader of the opposition, Robert Corbin, Jimmy Carter issued a statement in which he gave five points for moving the political process forward. Point 4 was,
“”The Standing Committee on Constitutional Review should be reactivated to implement proposals for substantive governance and election system reforms, drawing heavily on civilian participation.”
From that time to now, none of that was done, despite bipartisan presence on the SCCR after subsequent elections in 2006, 2011, and 2015. The failure on constitutional reform is therefore as much the PPP’s failure as it is APNU+AFC’s, a deliberate consensus that was noted in the report coming out of a UNDP Constitutional Assessment mission to
Guyana in February of 2017.
Regarding the risks facing any genuine constitutional reform process, the report notes:
“…the governing coalition and PPP/C may both go along with the constitutional reform process, but in the end fail to adopt the most needed amendments. As previously stated, both parties believe they stand to win the 2020 election. And both parties have historically enjoyed (i.e., failed to reform) the excessive executive powers under the 1980 Constitution. The 1999-2001 reform process resulted in numerous constitutional amendments – passed with bi-partisan support – none of which addressed the infirmities related to executive power and unaccountable government. The risk is that both parties might pay lip service to constitutional reform and adopt some amendments on the margins, but in the end fail to pass any of the most needed amendments, thereby maintaining the status quo. As one interlocutor put it while describing both major party’s view of constitutional reform: ‘If this process dies, no one cries.’”
Whatever the misinformation or mystique the two dinosaurs are placing on the constitutional reform process, the path forward is very simple:
1. After elections, immediately constitute the Standing Committee on Constitutional Reform. The TCI is ready to assume the chair of this committee.
2. The first order of business would be review the Constitutional Reform Consultative Commission Bill, table it in Parliament and vote for its establishment. This should be concurrent to any Appropriations Bill being place before Parliament for the fiscal year 2020, ensuring that the Commission receives funding.
3. Establish the Commission and establish a multi-year plan for its operation ending in 2022 – no constitutional or review process has gone beyond three years in the past.
4. Hold elections under the new Constitution.
In fact, we have gone even further in designing a proposed bicameral system of national government, and set out a timeline for elections under the new system, as can be seen online at https://www.citizenship.gy/pillar-1/bicameral-legislature/
These are Guyana’s most consequential elections since 1964. Constitutional, electoral and parliamentary reforms are therefore far more imperative than they were in 2015. The Guyanese people have a choice before them – continue to reward the lip service on this issue, or vote for a party with an actual plan on the constitutional reform process.