Stop the ruckus in the House and fix conflict with constitutionally guaranteed fundamental rights - former Chancellor
Former Chancellor of the Judiciary, Carl Singh on Wednesday night recommended that parliamentarians cease their ruckus in the House and instead change the laws that conflict with constitutionally guaranteed fundamental rights.
Delivering a lecture on “The Constitutional Guarantee of Fundamental Rights and the Citizen” at the University of Guyana (UG)-organised third conversation on law and the society, Singh said the saving of preexisting laws needs to be addressed because it impacts on the fundamental rights.
“The time is, therefore, well-nigh due for this our fully independent and sovereign republic for our legislators to take appropriate action with respect to the saving effect of Article 152 of the Constitution of preexisting laws which conflict with the constitutional guarantee of fundamental rights,” said Singh who is Jurist-in-Residence at UG.
He said if provisions in the Anti-Money Laundering legislation collide with the Fundamental Rights provisions, “then clearly they would be challenge-able”.
Justice Singh explained that even if the law being saved conflicts with the fundamental rights provision constitution, the law is preserved because “the law has constitutional support”.
“It is in that circumstance that I made the call that this savings law provision diminishes the value of the fundamental rights which are guaranteed to the people and therefore instead of the bedlams in the National Assembly they should focus on correcting these things and that is to remove the existing law provision which impacts not on a positive way on the fundamental rights of the citizen,” he said.
Parliament is increasingly known for loud heckling between a number of government and opposition parliamentarians. Recently, opposition People’s Progressive Party parliamentarians held placards and heckled President David Granger throughout his address to Parliament.
Justice Singh, in his lecture, cited several decisions in India, Trinidad and Tobago, Antigua and Barbuda, European Union and the United States that deal with fundamental rights such as the right to life, freedom of expression, right to freedom of movement, access to legal counsel, and protection from discrimination.
He noted that all fundamental rights are not absolute, but contain limits and can be circumscribed by other laws. Justice Singh indicated that as situations evolve, it was important to interpret the constitution in a “broad, liberal and purposive”.
Attendees included Chancellor of the Judiciary, Yonette Cummings-Edwards; Chief Justice, Roxane George-Wiltshire; Chief Magistrate, Ann Mc Lennan; Principal Magistrate, Judy Latchman; former House Speaker, Ralph Ramkarran; several judges, lawyers, magistrates and law students.
Guyana's judiciary survives "testing period" during PNC, PPP rule former Chancellor, Justice Carl Singh
Former Chancellor of the Judiciary, Carl Singh says Guyana’s judiciary “has survived a testing period” characterised by one of his predecessors calling on the judiciary to toe a socialist line in support of the then government, affixing of the People’s National Congress’ (PNC) flag outside the Court of Appeal and then President Janet Jagan tossing court papers over her shoulder.
Saying that loyalty is to the constitution and laws, he recalled that a then Chancellor of the Judiciary in 1981 had, in address to the Guyana Bar Association, linked the necessity of the rule law to create the right environment for socialist orientation and nation-building which are the dominant preoccupations of parliament and the then government. Singh further recalled that the then Chancellor had stated that the judiciary then was a necessary part of the political, economic and social system and the judiciary should consider itself as having a crucial role to play in that task by ensuring that in the all-important field of socialist development, basic values like the rule of law and justice were to be maintained. The then Head of the Judiciary, he further recalled, had stated that the high point was that while he maintained his judicial conscience, the Guyanese judge was expected to cooperate with the administration for the advancement of socialism.
Justice Victor Crane served as Chancellor of the Judiciary from 1980 to 1984 at the peak of then President Forbes Burnham’s-led PNC government’s experiment with cooperative socialism.
Reacting to Justice Crane’s views, Justice Singh remarked Wednesday night at a University of Guyana (UG)-sponsored lecture on “The Constitutional Guarantee of Fundamental Rights and the Citizen”, said to “have asked the judiciary to assume a critical role in the furtherance of a political ideology and to prescribe its cooperation with the political administration in the advancement of that ideology struck the very foundation of the separation of powers doctrine”.
Justice Singh, who is currently Jurist-in-Residence at the UG, said appropriate public statements and actions from national leaders “help considerably to instill public confidence in the judiciary which is so very necessary for the effective functioning of our courts”. However, that was respect and support, he said, was shattered in 1997 when then President Janet Jagan had tossed a court order by then Chief Justice, Desiree Bernard, over her shoulder on to the floor behind her at State House. “This act was captured on camera. It was shown on national television. It was a contemptuous and disrespectful act which substantially injured the image and authority of the judiciary,” he said.
Former long-serving member of the People’s Progressive Party (PPP), Ralph Ramkarran, noted that Mrs. Jagan had apologised for her action, but suggested that the PNC was yet to apologise for having its flag affixed to the Court of Appeal building. “You didn’t mention, but she did apologise after tossing the document over her shoulder, ex post facto…I haven’t heard an apology about placing the flag on the Court of Appeal but that’s by the way,” said Ramkarran who is also a former House Speaker.
Against that background, he clearly referred to the flag of the then governing PNC having been affixed to an outer wall of the Court of Appeal building in Kingston, Georgetown. He noted that although the constitution describes Guyana as a country in transition from capitalism to socialism, he credited the judiciary with reclaiming its independence.
“The judiciary, with the passage of time, has reasserted its independence and its neutrality. Over the years, the judiciary of Guyana has shown by its decision, its concern not for socialist transformation, wherever that is happening, but for the fundamental rights of the people and the maintenance of the rule of law,” said Singh who served as acting Chancellor of the Judiciary from 2005 to 2018.
The end of the era of the 'strongman'?
- President Granger and the constitution in wake of Guyana’s other executive Presidents
EVER since the introduction of the 1980 Constitution, the Republic of Guyana institutionalised an Executive Presidency which lawfully entrenched its incumbents as constitutional dictators. A constitutional dictator is an incumbent President who is lawfully empowered by the Constitution to invoke its entrenched dictatorial powers anytime he or she so chooses. The President is not only the head-of-state and commander-in-chief of the armed forces, but also the “supreme executive authority” of the country. Government Ministers are creatures of the Executive President and may only exercise the delegated authority of their office on the President’s behalf. The President has veto powers over executive commissions, including the Elections Commission. Guyana’s executive presidency has powers to appoint members of the Judiciary and to prorogue or dissolve the Parliament.
Parliament is the only arm of government with the constitutional authority to remove the President “for violation of the Constitution or gross misconduct”. Yet, the powers of the executive presidency can negate or neutralize those of the Parliament by the issuance of presidential decrees that prorogue or dissolve that body. The Guyana Constitution makes a “strongman” out of its Executive President. The strongman in this context is a “constitutional dictator”. During and even after leaving office, the President cannot be tried by the courts, or held legally liable for any act he/she may have committed while occupying that office. The President is essentially above the law. Guyana’s Executive President, like Caesar, bestrides the country like a colossus!
Guyana has had eight executive presidents. Only two of these, Forbes Burnham, October 6, 1980 to August 6, 1985; and Desmond Hoyte, August 6, 1985 to October 9, 1992 were from the People’s National Congress (PNC). Five of the country’s executive presidents came from the People’s Progressive Party (PPP): Cheddi Jagan ruled from October 9, 1992 to March 6, 1997; Samuel Hinds ruled from March 6, 1997 to December 19, 1997; Janet Jagan ruled from December 19, 1997 to August 11, 1999; Bharrat Jagdeo ruled from August 11, 1999 to December 3, 2011; Donald Ramotar ruled from December 3, 2011 to May 16, 2015. President David Granger from APNU/AFC has been serving from May 16, 2015 to the present. He is the only Executive President not derived exclusively from either the PPP or PNC.
President Bharrat Jagdeo ruled Guyana for almost 12 years and was the longest-serving executive president. He will likely retain that title since the Constitution was amended to limit an incumbent to no more than two terms. President Desmond Hoyte ruled for seven years. All of Guyana’s other executive presidents occupied the office for less than five years, including President Burnham and President Jagan. President Samuel Hinds acceded to the presidency after the death of President Cheddi Jagan and served for only nine months. Hinds was Cheddi Jagan’s Prime Minister and constitutional successor. He belonged to the Civic arm of the PPP/C and merely warmed the seat of power until Janet Jagan, the logical successor to Cheddi Jagan, took over. Janet Jagan had served as the Prime Minister for President Hinds. Had he chosen to do so, President Samuel Hinds could have constitutionally defied the PPP/C and kept himself in power for much longer. For his loyalty to the PPP/C, Samuel Hinds was remarkably kept as Prime Minister of the country for just over 22 years under the other four PPP/C Presidents. His occupancy of loyalty resulted in Guyana having had eight executive presidents, but only five prime ministers.
President Janet Jagan resigned after ruling for just under two years and died ten years later in 2009. Her presidency was plagued by tumultuous street protests by citizens who objected to her becoming President, because she was not born in Guyana. She was the only woman in the history of Guyana to be appointed both Prime Minister and Executive President. Both Forbes Burnham and Cheddi Jagan died in office without serving out a full term. It is almost as if the office of Executive President consumes the very lives of those who want to retain it the most.
Forbes Burnham was the architect of Guyana’s 1980 Constitution and he designed it to keep himself in power for life and to bring about unchallenged socialist transformation in Guyana. Known as the “Constitution of the Cooperative Republic of Guyana,” it makes the President not only the supreme executive authority, but also the supreme legislative and judicial authority. Burnham’s handpicked successor, President Desmond Hoyte used the considerable and unchecked powers of the presidency to repudiate and transform the cooperative socialist development path his predecessor had charted. Hoyte almost single handedly used the presidential powers to change Guyana from a socialist to a market-oriented development path while touting the private sector as the engine of growth. Hoyte also ended his party’s rigging of national elections, restrictions on a free press and restored free and fair elections. These actions led to the democratic replacement of the PNC party in government by Cheddi Jagan’s PPP.
It is important to note that both the PNC and the PPP endorsed and embraced the powers of the Presidency. For 23 years the PPP, while in government, did very little to reduce these dictatorial powers. Indeed, in the early 1980s, I interviewed Dr. Cheddi Jagan on the topic “Ministerial Government in Guyana” for over an hour at the PPP headquarters, Freedom House. I was ushered to his office by Ms. Gail Teixeira who was at the time serving as his administrative assistant. Janet Jagan, then editor of her party’s newspaper the “Mirror”, occupied the office next to her husband. She was in her office and did not attend the meeting. I specifically asked Dr. Jagan if he was in agreement with the 1980 Constitution and all the powers it accorded the President. He categorically told me that he had “no problems with the Constitution”.
He said that his only objection was operational but not constitutional. He lamented that “Burnham appointed too many Vice Presidents and Government Ministers” and that when he becomes President he will have far fewer ministers and only one or at most, two Vice Presidents. Burnham at that time may have had five Vice Presidents. It was a sobering moment for me in recognizing that the charismatic leadership of Guyana’s two mass parties had more in common than the nation realized. Cheddi Jagan himself was by his own admission a “strongman” and an authoritarian leader that would also have taken Guyana down a socialist path if availed the opportunity.
The Guyanese people have had decades-long love affair with the “strongman”. Both Burnham and Jagan were charismatic leaders and their supporters loved them and endorsed whatever they ordained. These founding-fathers of the Guyanese nation were strongmen in their own right before becoming the heads of their governments. They were the lifelong and unchallenged leaders of Guyana’s two mass-based parties. The ability to control mass parties as well as the government is at the very foundation of this type of “strongman” leader. Acceding to the office of Executive President made them supremely and widely powerful as well. The other six presidents became “strong” mainly as a consequence of their incumbency as executive president. The problem with strongman rule is that it is essentially authoritarian and undermines the democratic processes in a society. The PPP and PNC political parties led by these strongmen were themselves undemocratic institutions. Further, strongman rule is inherently disposed to diminish transparency and accountability with resultant regimes characterized by widespread corruption and authoritarianism.
Why then are the Guyanese people attracted to strongman rule? The strongman leader is able to widely dispense political patronage. They appoint loyal followers to prime positions and create jobs even when no work exists. They blur the lines between government assets and resources and personal property. They dispense favours to family, friends and supporters. Importantly, they create the illusion that without them being in power all will be lost. Strongman rule has created a culture of dependency among the Guyanese people on their government and above all its ultimate ruler. Government bureaucracies are made to serve the leader or his party’s demands instead of the country as a whole. The consequence of this culture of dependency on such authoritarian leadership is that followers are inoculated from self-reliant development. Those opposed to the ruler and his mass supporters are marginalised and alienated with concomitant negative consequences for the development of the country as a whole. Mass migration from Guyana over the past three or four decades is an enduring index and direct consequence of the Guyanese people estrangement from their rulers, be they from one mass party or the other.
Not a ‘strongman’
This brings us to the current ruling APNU/AFC coalition administration. Though the Presidency retains its paramount power, President David Granger is the head of a broad based coalition government that imposes serious restraints on his exercise of such strongman powers. He therefore does not have the freedom space to readily dole out patronage benefits, even if he wanted to, and to adumbrate policies and programs with which the other coalition party members collectively disagree. The populace cannot turn to him to readily meet their needs. Getting things done for the country as a whole and his own supporters in particular is often the result of transactional arrangements with other coalition partners. The President is not unresponsive. He is instead accountable.
Government ministers may be constrained to go rogue in order to provide preferential treatment to supporters of their own party in the coalition. The watchdog media in the country are ever inclined to expose any contrary actions by the President, his government ministers and other state officials. The Opposition PPP Party is also ever ready to rightly or wrongly call out any action by President Granger that smacks of patronage, corruption or that is contrary to the laws of the land. The demands for the new government to be transparent and accountable are deafening and are seemingly bearing fruits of good governance, if not also sometimes paralysis. The end result is that although he is also the leader of the PNC, President Granger is not a strongman.
Though liked personally by many, David Granger is not a “strongman” ruler. From all appearances, is seemingly wary about projecting that he wants to be one. He was democratically elected to be leader of the PNC, a mass party that has been working to shed it authoritarian image and which coalesced with other political parties to contest the 2015 General Elections and form the Government. While ethnic rivalry has defined political participation in Guyana for decades, the demographic transition resulting from migration has made it almost impossible for future governments not to be organised as coalitions of some kind or the other.
Is this then the end of the era of the strongman? The Guyanese people have become accustomed to the failures of their past governments to be transparent, accountable and democratic, and, above all to develop the country. People came to realise that whether they support the leader from one party or another, the fate of the country in the past has been less than salubrious. They have got to demand and become accustomed to a changed political culture and process that eschew the authoritarianism, personalism and corrupt practices of their past rulers.
Reform of constitution
Central to the electoral platform of the APNU/AFC Coalition Party was the demand to reform the Constitution of Guyana to, among other things, considerably reduce the powers of the Presidency. There seems to be generalized support for constitutional reform from the opposition PPP, civic groups and the country as a whole. Yet, the APNU/AFC Coalition has not acted with due haste to get this done. Is it the allure of the absolute power of the Executive Presidency that may have begun to intoxicate those who ran to change it? While there is no evidence of this, it is imperative that the Government act now to get constitutional reform done.
Doing so will be the greatest democratic advancement for Guyana since it attained its independence in May 1966. It will also be the single biggest achievement of the APNU/AFC Coalition Government in its very first term. It will enshrine the foundations for enduring democracy and development in the country. By accomplishing sensible and fundamental constitutional reform, President David Granger can be permanently etched in Guyana’s history as a truly great President who reduced the powers of his own Executive Presidency in order to advance democracy and development of the country he so dutifully serves and loves.
Article adapted from: http://guyanachronicle.com/2017/08/29/end-era-strongman
Can the present UG administration deliver the institution from its political prison?
No astute witness to the cataclysmic decline of the University of Guyana over the years would seriously challenge the view that the prevailing conditions at the institution are, in large measure, a function of the debilitating diet of crass political intervention that it has had to endure and much of which has manifested itself in some of the most unenlightened and counterproductive feuding between the country’s two main political parties. UG, of course is not the only supposedly autonomous state institution that has, over the years, been blighted (and in some instances ruined) by the dead hand of political intervention. One of the distressing and debilitating tendencies of the Guyanese political culture is that possession of power is customarily attended by a proclivity for dominance of all that the state controls, even including those institutions that are governed by constitutional provisions that frown upon direct political intervention. It is that tendency by our politicians to refuse to recognize and respect the nexus between the independence of those institutions (like UG) and their effective functioning that has been, in large measure, responsible for the near ruinous state from which the University is now seeking to recover.
UG, as was mentioned earlier, is not the only presumably autonomous local institution to have suffered the ignominious fate of crude political intervention. Various state-run but autonomous institutions like the Guyana State Corporation (GUYSTAC), the Guyana Marketing Corporation (GMC) and the Guyana National Co-operative Bank (GNCB) come to mind. The interventions have come for various reasons one of which is as trivial as the desire by politicians so positioned to flex their muscles. Another, as was widely believed to be the case with the GNCB, was simply in order to grant political favours. In more recent times there have been revelations of alleged corruption-related political intervention in state-controlled bodies like the Central Housing and Planning Authority. (CHPA).
In the case of UG there is a long-standing case to be made for a nexus for the underperformance of the university in the execution of its primary function and the dead hand of politics as manifested chiefly in the ongoing inter-party political feuding.
Whether or not the present Vice Chancellor of UG, Professor Ivelaw Griffith will find himself batting on a better wicket than that of his predecessors as far as undue political interference at the university is concerned remains to be seen. One makes this point having regard not only to what has obtained over the years, but also having regard to the fact that we are in the midst of a political season in which just about every conceivable issue precipitates a faceoff.
Sad to say and setting aside the customary political rhetoric, there has been no really persuasive evidence over the years that our political leaders have been seized of the importance of the link between an accomplished higher institution of learning and the creation of the various skills necessary for a multi-faceted development agenda. Otherwise, surely, UG would not have been so starved of funds over the years so as to suffer the kind of devastating decline in both material and intellectual resources that it has. Indeed, the contemporary image of UG is, in large measure, a function of its overwhelming undernourishment and the fact that it had become a lightning rod for political feuding.
Political assaults on the sanctity of the university have had the effect of completely rendering its substantive managers virtually impotent so that when the sparks begin to fly those functionaries (notably the Vice Chancellor) have found themselves at odds with the political interlopers but powerless to engage them since state funding remains the life blood of the institution.
Professor Griffith, his more than three decades-stay outside of Guyana notwithstanding, would have been staying abreast of developments at home and specifically at UG and would doubtless be aware of the fact that the institution had become a political battleground over the years. Indeed, he made it clear in an interview with the Guyana Review two weeks ago that he had indeed been tracking developments at UG from abroad and that he was aware of the overwhelming failure of “different governments” to be mindful of what he says (and here he insists that he speaks from considerable experience of universities in North America and Europe, among other places) is “a cardinal rule that the intrusion of politics into the affairs of the University is not good for the University,” nor is it good for “society;” and the Vice Chancellor, surely, must have had UG particularly in mind when he added in a rejoinder that “the fact that you are a state university does not mean that the university should be dictated to politically.”
Up until now Professor Griffith does not appear to be unhappy (at least it does not seem so) with his relationship with the government. One anticipates, however, that there could be testing times ahead particularly when it comes to what he says is the necessity for a greater infusion of state funding from government (among other sources) into the rebuilding of UG. What, however, is significant about the Vice Chancellor’s position on the relationship between his administration and the political powers that be is that his own stated position is clear. This is what he had to say about his disposition to political pressure in the matter of the running of the university.
“… I have made it quite clear that I am not going to be a Vice Chancellor that facilitates that internal political dictation – who to hire, who to fire, what student to admit, what to publish. The University must be a place, a for neutral ground for all places, critical of government, critical of opposition and as a Vice Chancellor I have asked for the importance of civility.”
It has to be said that the perspective of the Vice Chancellor on the kind of leadership that he seeks to bring to the running of UG is, in some significant ways, not in keeping with the outlook demonstrated by the politicians over the years. There have been interventions, several of them, in some of the very areas which Vice Chancellor Griffith says he is determined to set his face against. The extent to which he gets his way in the period ahead could have a profound impact on our success or otherwise in pursuit of the re-tooling of UG to play what, in the period ahead, could be a critical role in intellectually equipping the nation to meet its critical developmental needs.
- The University of Guyana