David Hinds' Media Comments, Stabroek

Political impasse partly due to failure to advance constitutional reform – David Hinds

stabroek news By  April 7, 2019

Dr David Hinds

The disagreements over what constitutes a majority for a no-confidence vote (NCV) and the indecisiveness over the implementation of the provision barring dual citizens from serving as Members of Parliament (MPs) are evidence of the urgent need for another round of constitutional reform, according to political analyst and executive member of the Working People’s Alliance (WPA) David Hinds.

Hinds, during a recent interview with Sunday Stabroek, stressed that the failure on the part of APNU+AFC coalition, in which the WPA is partner, to deliver on its campaign promise of constitutional reform has resulted in Guyana now having to depend on the courts to resolve the current political deadlock.

“Yes, I think the current impasse is partly the result of the failure to push forward with constitutional reform,” he said when asked.

In its manifesto for the 2015 general elections, the APNU+AFC coalition had said that within three months of taking office it would appoint a Commission to amend the Constitution with the full participation of the people and that, among other things, it would reduce the powers of the president. This, however, did not happen.

Political commentators and other observers have repeatedly questioned the reasons behind the delay and more so who should take the blame.

The outspoken Hinds noted that a constitution has to be a living document that is constantly reviewed to align it with the changes in the society

“The current constitution was written in an environment that is very diferent from what obtains today. A constitution that emerged to enable the consolidation of a commandist state cannot be the same one for a movement away from such a state. And in a country with sharp differences like ours, it is imperative that we periodically review the rules that govern our existence as a sovereign country,” he pointed out.

He suggested that the first step be periodic constitutional review, possibly occurring every 15 years.

Hinds reminded that there is already a Parliamentary Standing Committeee on Constitutional Reform in existence and, therefore, “the mechanism is there already.”

Government had appointed a Steering Committee on Constitutional Reform (SCCR) in September 2015. The SCCR submitted a report to the government on April 30th, 2016. This report was not released to the public though it was reported on by this newspaper.

The government also invited a team from the United Nations (UN) to evaluate the conditions for constitutional reform, among other things. The UN experts produced a report which was also not circulated by the government but was reported on by this newspaper.

Politician Ralph Ramkarran SC has been very outspoken about the need for constitutional reform. In October 2018, while noting that President David Granger’s address to the National Assembly completely omitted any reference to this promise, he said that the smaller coalition partner, AFC, has the power to ensure the commitment is fulfilled by going as far as leaving the government benches. “A committee was appointed to advise the Government on the process it should follow. The report was never published…. Last year’s budget provided several million dollars for constitutional reform but nothing has happened.  What the President did not say in his address to the National Assembly, or in previous addresses, is whether his Government will fulfil its promise on constitutional reform to the Guyanese people. It still has time to complete the process,” Ramkarran wrote in his weekly ‘The Conversation Tree’ column exactly two months before a NCV against government was declared valid in the National Assembly.

“The only course likely to sustain the AFC as a respected, if not viable political force, is to secure constitutional reform for the Guyanese people. In addition, history will recognise this service to the Guyanese people. Its failure to do so will be held to be its failure to the Guyanese people. The Cummingsburg Accord will be recognised as a failure comparable to the failure of the PNC-UF coalition in 1968, which the PNC orchestrated. This would be just as APNU has orchestrated the failure of the APNU+AFC coalition by the miniaturisation, then absorption, of the AFC,” he observed.

He added that AFC’s failure to act would open the way for a new political force to lead the way for constitutional reform. Ramkarran has since co-founded a new political party, which is lobbying for constitutional reform.

Months prior to Ramkarran’s comments, the AFC had insisted that it was still committed to the making constitutional reform a reality. Party Chairman Khemraj Ramjattan, during a press conference in May, 2018, had expressed optimism that the process could be completed before the next general elections. At that time the elections were scheduled for 2020 but the passage of the motion imposed a three-month deadline, although that has since been invalidated by a ruling of the Court of Appeal. The ruling of Guyana’s final appellate court, the Caribbean Court of Justice (CCJ), will determine is Guyana will go to the poll before 2020.

Ramjattan had claimed then that there were “good reasons” for the delays.

“As you would appreciate there’re good reasons why. There are other matters before Parliament. We haven’t been meeting as regularly, for good reasons again, and that has stalled the process somewhat,” he posited.

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Review dual citizenship prohibition

When asked if the WPA has expressed concern about the delay at the government level, Hinds responded in the affirmative. “…the WPA, to which I belong, has consistently championed constitutional reform as part of a larger political solution. We still feel strongly about the matter and would continue to keep it on the national agenda,” he told Sunday Stabroek.

He used the opportunity to remind that during the last constitutional reform exercise two decades ago, the party’s then parliamentarian, Dr Rupert Roopnaraine, played a pivotal role in getting some of the eventual changes “pushed through.”

Hinds believes that the dual citizen provision that is outlined in the constitution should be reviewed with the aim of removing it. “I favour its removal. We live in a global world where dual citizenship and residence is fast becoming the norm. So, I don’t think people should be disqualified because of it. If a dual citizen can vote, then they should be able to serve. Of course there should be some conditions. Maybe a requirement that the person is resident in Guyana most of the time,” he said, while informing that Trinidad and Tobago has a law that permits dual citizens to serve in the National Assembly.

According to Article 155 (1) (a) of the Constitution, “No person shall be qualified for election as a member of the National Assembly who is, by virtue of his or her own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state.”

In wake of the NCV, it has been revealed that a total of seven parliamentarians have dual citizenship.

On the government side these are Minister of State Joseph Harmon, Minister of Public Service Dr Rupert Roopnaraine and Minister of Foreign Affairs Carl Greenidge, all members of the APNU faction of the APNU+AFC coalition government, and AFC’s Dominic Gaskin, who is the Minister of Business and Tourism. They have all tendered their resignations as MPs to President David Granger and the three APNU members will be renouncing their foreign citizenship. Gaskin was born in the United Kingdom.

The opposition’s dual citizen parliamentarians are Chief Whip Gail Teixeira, who is a Canadian and US citizens Odinga Lumumba and Adrian Anamayah. They are expected to soon hand in their letter of resignation to the Speaker of the National Assembly. Teixeira has started the process to renounce her foreign citizenship, Lumumba will soon start the process and Anamayah will keep his due to family commitments.

The AFC is in favour of an amendment of Article 155 (1) (a).

“The AFC has always stated publicly that we wish to have diaspora representation not just in the National Assembly but also in Government and we maintain that…We will be pushing for this amendment to be made…,” the party’s leader, Raphael Trotman, told a recent press conference.

He also stressed that the provision “is doing Guyana [a] disservice and, therefore, it needs to be amended.

Meanwhile, Hinds noted that because the constitution is not explicit on the requirement for a NCV, it is open to interpretation, which is what the judges have thus far done and which is precisely what the CCJ would be asked to do.

“I feel that whatever the outcome at the CCJ, we should consider amending the constitution to make the requirement for a succesful NCV explicit. The constitution does require a different majority for a NCV, but it is implied rather that explicit. So, I think the Court of Appeal has given us the language to make it explicit,” he said.

Further, he posited that a lot of people are debating mathematics rather than law and what the constitution implies as it pertains to the passage of a no confidence motion. “The majority of 34 flows from what the constitution implies and not the other way around. But I think an amendent to the constitution should clarify the matter by removing the room for implying,” he said.

Hinds does not hold dual citizenship.

On December 21st, a vote by then APNU+AFC member Charrandass Persaud on an opposition PPP/C sponsored no-confidence motion against the government, tipped the scales 33 to 32 in favour of the motion. Consequently, Speaker of the National Assembly Dr Barton Scotland ruled that the motion had been carried.

Scotland subsequently refused an invitation by the government to reverse his decision on the motion, saying redress could be sought in court. Three court actions were subsequently file – the first by private citizen Compton Reid challenging the validity of Persaud’s vote given his dual citizenship; one by the government which hinged on the argument that 34 votes were required and not 33; and the other by chartered accountant Christopher Ram, who asked the High Court to uphold the passage of the no-confidence motion and to declare that the President and his Cabinet should immediately resign as a result.

Chief Justice (ag) Roxane George-Wiltshire subsequently found that while Persaud was ineligible to be a member of the National Assembly by virtue of his foreign allegiance, his vote was valid; that 33 constituted a majority and that the passage of the motion should have triggered the immediate resignation of the Cabinet, including the President.

Those rulings were appealed and the Court of Appeal last month by way of majority disagreed with Justice George-Wiltshire on the majority needed, saying that 34 votes were required as a NCV needed an absolute majority in order to succeed. Several appeals are challenging this and other aspects of the Appeal Court’s judgement are currently before the Trinidad and Tobago-based CCJ. The court has already set timelines for the submission of written arguments and attorneys will be making oral arguments on May 10th.

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