Constitutional reform: dismantling the ‘Burnham’ constitution

Forty years after Forbes Burnham radically reformed the independence constitution and twenty years after that, the ‘Burnham’ constitution was reformed by the PPP/C government, why is the present constitution still being disparagingly referred to as the ‘Burnham’ constitution that needs to be scrapped? Much of the anger directed at the constitutions has to do with perceptions that the current presidential immunities are unacceptable and contribute significantly to presidents behaving highhandedly and appearing unchallengeable. Last week I attempted to show that the immunities that the president of Guyana enjoys are not particularly unusual, and here I posit that even if they are totally eliminated, the incumbent could still appear all powerful and inviolable because the elements in the 1980 constitution that are responsible for this behaviour were hardly touched by the 2000 reform process.

Guyana has a mixed semi-presidential/semi-parliamentary political system and those who decided upon this marriage must have been hoping to benefit from the advantages of the two approaches. However, I observed some years ago that in seeking to mix the parliamentary and presidential systems, the most questionable elements of the two were brought together and thus created the toxic brew of today (SN: Future Notes 25/05/2011). As a result, there has been a persistent demand in some quarters that Guyana revert to a purer form of the Westminster-type constitution similar to that of its colonial era.

If properly used, Westminster-type parliamentary systems have some advantages that could be useful for ethnically divided societies. For example, they take their governments from the elected legislature and this enables them to include all political parties in the management of the state. Furthermore, as the recent no-confidence vote in Guyana demonstrated, since governments in parliamentary systems can be brought down on the floor of the legislature a discredited government can be dismissed from office by the parliament and thus, in theory, there should be greater transparency and public control over the policy-making process. However, in practice, where a majority party and its government ‘has … complete control over the legislative agenda … the rights of the individual members of parliament are “expropriated” and monopolized by the cabinet. Hence, all individual legislators can do is to support the party line’ (http://www.columbia.edu/~gjw10/ CheibubLimongi.pdf). Two weeks ago I suggested ways of making members of parliament more accountable to their constituencies, but such mechanisms exist in other parliamentary systems so that simply making MPs constitutionally electorally accountable will not necessarily prevent the development of this negative tendency.

In favour of the presidential system it is claimed that directly elected presidents are more identifiable and accountable to voters and thus it is easier for the electorate to reward or punish a president and his/her government by voting him/her out of office. But importantly, in ethnically divided countries, depending upon how the rules used to elect the president are tailored, presidents can also act as unifying national figures between rival political groupings. Also, contrary to what occurs in parliamentary systems in the typical presidential regime, the separation of powers ‘leads to independent legislators who act on the basis of their individual electoral needs; and in response to these needs, they build personal ties with their constituencies.’ (https://aceproject.org/ero-en/topics/electoralsystems/E20GovtStructure ElectoralSystems Reilly .pdf).

However, one disadvantage of presidentialism is ‘[T]he propensity of the office to be captured by one faction, party or social group. This can create particular difficulties in multi-ethnic societies, where the president can easily be perceived as the representative of one group only.’ There are ‘no real checks on the executive [and] [t]his becomes even more true when there is a concordance between the president’s party and the majority party in parliament. In this case the parliament has almost no real checks on the executive and can become more of a glorified debating chamber than a legitimate house of review. This problem can be exacerbated by the fact that a president, unlike a parliamentary prime minister, can become virtually inviolable during his or her term of office (Ibid).

.The above paragraph could have been written for Guyana, for the ‘Burnham’ constitution brought together some of the worst elements of both worlds and these remained largely untouched during the 2000 reform process. It is undeniable that since independence every change of government in Guyana has been perceived by one of the two large ethnic groups as the capture of power by the other. There are no real checks on the executive because there is usually ‘a concordance between the president’s party and the majority in parliament.’ (2011 to 2015 was the only exception but the parliamentary-type plurality electoral arrangements denuded it of its real meaning and allowed a minority party to hold the presidency). There is no real check on the president who appears inviolable and as in many parliament systems, the National Assembly is viewed as ‘a glorified debating chamber’.

In a majoritarian political system the problem can be mitigated if, much as in Suriname (Future Notes, SN: 03/06/2020), the president is elected by a supermajority of the National Assembly. This would indicate cross party support for the government but would be difficult to establish where two parties control nearly all the seats. Indeed, this is also why the theoretical and empirical evidence suggest that when there are two large ethnic groups with a history of political antagonism such as in Guyana, optimal management requires that they sit at the table and somehow manage the country together.

Secondly, in Guyana in the short run the consequences of a concordance between the president and his party in the National Assembly would be difficult to overcome. These consequences could, however, be mitigated by reforming, as suggested above, how the president is elected, constitutionally establishing stronger separation of powers between the presidency and the legislature, making MPs more independent and accountable to their constituencies, strengthening the oversight authority of parliament, encouraging cross party cooperation by utilising supermajorities for the passage of designated important bills, etc.

Finally, I noted above that depending upon how the rules used to elect the president are tailored, a president can also act as a unifying national figure between rival political groupings. More than ever before there is a need for greater political unity in Guyana, but the unreformed majoritarian arrangement of the ‘Burnham’ constitution must be dismantled if such benefits are ever to be won.