At the 151t Birth Anniversary of Mahatma Gandhi on Friday last, President Irfaan Ali said: “The Republic of Guyana has just emerged from a bruising test of its democracy. My government is committed to strengthening the country’s democratic institutions and to insulating them from the threat of being undermined.”
There was no indication from the President that the political system needs overhauling or that a political solution, which the PPP has consistently advocated between the 1970s and 1990s, should be sought to address Guyana’s perennially unstable political culture. There has been an absence of any movement in the direction of this type of radical reform, which the Opposition supported in 2015, failed to implement while in government, and has now abandoned. It is therefore unlikely that Guyana will be moving towards significant constitutional reform to eliminate the politics of ethnic dominance and relieve Guyana of the periodic political turmoil that occurs at election time.
It is not known whether or not the President is thinking about Guyana’s major democratic institution, namely, the National Assembly. But the deliberations of the National Assembly during its opening weeks did not demonstrate any indication that any changes are contemplated. The conduct of the National Assembly, the management of its business and the tone of the debates do not set the stage for a conducive atmosphere that can lead to the strengthening of that institution and others.
The President was likely thinking about measures to strengthen those institutions that relate to controversies that took place over the past few years. The first issue related to the qualifications for the Chair of the Elections Commission. President Granger first insisted that only a judge, or former judge, or person qualified to be a judge is eligible for appointment. After this matter was settled by the court, he rejected three lists of persons, the unilaterally appointed 84-year old Justice Patterson. This appointment was struck down by the CCJ. For over a decade, overseas election observers have been advocating an Elections Commission which is constituted by different procedures and excludes political representatives. Political representation on the Elections Commission and the mechanism provided for its composition and the identification of its Chair, are the main reasons for the dysfunctional state of the Elections Commission.
But both President Ali’s party, the PPP, and APNU have always been wedded to the existing constitutional provisions relating to the Elections Commission. We anxiously await the Government’s proposals as to how to compel the Chair to step in immediately as the laws are violated by staff, or to prevent staff from deliberately defying the rules and laws. In the likely absence of agreement, extensive, detailed, legislation which the Government has to votes to pass in the National Assembly, would also provide for heavy penalties. These would be appropriate to curb any further attempt by employees to defy clear laws and to attempt to rig elections. Friendly countries would not always be available to assist Guyana.
In regularly functioning democracies, the violation of the Constitution by a sitting Government, is an extremely serious matter. Where such a violation takes place, there is a strong case for the electorate not to return that party to office, as frequently happens. Since voting in Guyana is along ethnic lines, a violation of the Constitution by a Government would have no discernible effect on its electoral support. And the creation of a strong ‘democratic institution’ in the Presidency allows that latter to violate the Constitution at will without suffering any consequences. The President is guaranteed immunity if he/she violates the Constitution. So that the failure of the Cabinet to resign, or failure to hold elections within three months of a vote of no confidence, attracts no penalties, either criminal, civil or political. Even after court proceedings are over, no sanction exists for failure to hold elections within the required three months,
The answer, therefore, is to dismantle the immunities of the President and pass legislation to provide penalties against a President and Cabinet Ministers who defy the Constitution. These penalties must be criminal and also include restrictions on contesting future elections for a specific period. The evidence suggests that the PPP is terrified of removing presidential immunities, which the public has long called for. If the wholesale removal of the immunities is not on the cards then an exception can be inserted excluding immunity where the President fails to perform acts which are required to be performed by the Constitution. Ordinary legislation can be passed fixing the penalties and these can include penalties for Cabinet Ministers.
Under normal circumstances these issues should be resolved by way of constitutional reform, which many, including foreign countries, have called for. But the requirement by the President for Opposition Leader, Mr. Joe Harmon, to retract his statements that the Government is fraudulent before agreeing to meet with him, which Mr. Harmon is unlikely to do, does not give much hope that the President’s desire for ‘strengthening democratic institutions’ will materialize.