Harold Lutchman

Harold Lutchman

With Guyana set to receive unprecedented revenues as a result of the start of oil production, constitutional attorney Professor Harold Lutchman says it is imperative that citizens push for power sharing or lose out to foreign companies.

“Once you have a situation where you have ‘I am APNU,’ ‘I am AFC, I am PPP… and I won’t listen to your ideas,’ who will get the benefit? A house divided against itself will fall,” Lutchman, who served during the life of the last Parliament as the APNU+AFC’s Representative of the List, told Sunday Stabroek in an interview last week as he highlighted the need for the political parties to work together.

At the same time, Lutchman is also cautioning citizens against overreliance on political leadership for decision-making, in which he thinks there is need for greater civic participation.  “The society is one which gives politicians so much power and control and once you have politicians in control, they will always want to retain that control… and that we must look at,” Lutchman, who also served on the Steering Committee for Constitutional Reform (SCCR), said.

The successful December 21st vote on a no-confidence motion against the government, according to Lutchman, has already negatively impacted the preparation for oil production.

In this regard, he said that the motion should be a wake-up call for this country to look at its legislation given the political stalemate that has resulted for over one year.

“It is never good to have a situation of crisis,” he said, while noting that the motion served to entrench divisions.

“If you notice, in Africa and other parts what happened and how they were negatively impacted, it is because of division. You can take a look and see that the instability was ripe for politicians to do their own things where this persons became a millionaire, this one took this and the other that. As we prepare for this vast amount of revenue from the oil and gas, we have to find a way of power sharing because I believe that there must be a bridging,” he added.

‘Executive powers’

Lutchman pointed out that government did nothing wrong when it challenged the motion in the courts as it was within its legal rights. He was also of the view that were the aspects of the constitution pertaining to the powers held by the president of Guyana raised before the Caribbean Court of Justice (CCJ), the final ruling would have been “more interesting.”

The court found that upon the passage of the motion against the government, the clear provisions of Article 106 (6) of the Constitution immediately became engaged.

“Upon the passage of a vote of no confidence, the Article requires the resignation of the Cabinet including the President.  The Article goes on to state, among other things, that notwithstanding such resignation the Government shall remain in office and that an election will be held within 3 months or such longer period that the National Assembly by resolution supported by not less than two-thirds of the votes of all elected members of the National Assembly…,” the court stated, before adding that the Guyana Elections Commission (GECOM) had the responsibility to conduct elections and it must abide by the provisions of the constitution.

Lutchman noted that unlike the case in the rest of the Commonwealth Caribbean, Guyana’s constitution caters for an executive president who is chosen by the people at large. “My position is they go to court and say the cabinet and president shall resign, yes, but the president didn’t get into his position because of something ceremonial or he got there on some suggestion, like say Arthur Chung. He was elected as an executive president and the position of the president is that if he doesn’t appoint a single minister, he can maintain all those portfolios… He can one day wake up and fire the whole pack of them and say ‘I will carry out all these portfolios myself’ because it gives him that right under law. The only thing is it is not practical. But he is the executive authority in Guyana. The point I am making is that issue wasn’t raised before the CCJ,” he explained.

“There is nothing in the provision of the constitution that says the president should demit office. It says remain in office until a new president is sworn in. [David] Granger is an executive president and in Guyana if you want to get rid of the president you have to bring a provision that allows for that. What does the constitution say about the functions of a caretaking government? Nothing! There is nothing in law that says a caretaking government can and can’t, especially where an executive president was not removed. There is none. I am telling you, there is nothing that says he cannot be allowed to function and carry out their duties. The president still has all his powers until another president is elected as a matter of law. Ask what are the limitations of his power, legally? None,” he added.

Lutchman said that he wants to make the point clear that courts deal with only the matters before them and it was how the CCJ’s decision was formed. As a result, he would not say if the CCJ should have taken other considerations in their ruling.

Lutchman further said that lawmakers should educate the populace on how sometimes conflicting laws apply and they should also move to have those addressed.

He said that while there is much debate on the motion and the CCJ terming the government one which is in caretaker state, this country’s laws do not provide and state what duties such a government should do as the term “caretaker” is not used.

“What does our constitution say are the functions of a caretaking government? In practice, a government that finds itself in that position ought not to be performing in that position but it is not a matter of law, it is a matter of practice. This is an idea of caretakerism, they had borrowed from Canada where an academic had written about caretaking functions. However, there is nothing in law which says, according to my understanding, that a caretaking government cannot do certain things where an executive president was not removed from his portfolio,” he said.

Conflict

Lutchman did explain that while a sitting president can be removed after a no-confidence motion, it requires an extensive process.

“According to the interpretation that exists, many people feel that once a motion of no-confidence is passed, the government has to resign and you’re supposed to have elections in three months. That was the interpretation and issue that went before the CCJ but they weren’t prepared to or [what] wasn’t raised [was] how the president became president of Guyana.

The president was elected for a period of five years and for the president to be removed, the president, under Article 180, you have to bring a motion to show he breached the constitution and you want his behaviour or his conduct to be investigated.

“In order to go further… 50% of the legislature has to agree, and yet again and if you get that 50% of the legislature’s agreement, you have to set up a tribunal to investigate his behaviour. It still doesn’t stop there and that is this country’s law.

Now the tribunal has legal personalities and so on to look after the interest of the president. He has a right to be represented in Parliament. And if that the tribunal finds he is guilty, the law says you still have to take the issue to parliament again. Yes, my dear, again! And in order to get rid of him, you have to get a two-thirds majority vote. In other words, it is a form of impeachment like the American impeachment. Many persons still do not know, but [late president Forbes] Burnham had a provision that even if you had come with the two-thirds majority, he could have dissolved parliament and have a new election.

That aspect was changed but there are many key provisions that they will have to address.

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They must look at what is the relationship between a motion of no-confidence and what you have under Article 180. As they go forward with constitutional reform, this is one of the things they must address. In any reform of the constitution, that conflict situation or situation of conflict, where you can have a vote of confidence that can remove or advocate that he should be removed and resigned, that needs to be addressed because it is in conflict with the provisions of the constitution where the president is executive president,” he added.

Lutchman also said that political representatives have to take the discussion of this country’s “unique constitution” to the people and press to have reforms to meet current day practicalities.

Lutchman had one time criticised both the APNU+AFC government and the PPP/C over the delays in advancing constitutional reform, saying that either side only advocates for changes when they are on the opposing side of government.

“What they support when they are in government is entirely different to what they support when they are out of government. The same thing they criticize when they are out of power, the same thing when they are in power they don’t see anything wrong with,” he had said.

Meanwhile, while APNU+AFC is using a revised Cummingsburg Accord to guide on the makeup of the next government, should it win the upcoming elections, Lutchman reminded that under the constitution the president does not have to abide by the terms agreed.

“They arrived at a certain understanding or gentleman’s agreement; they agree before the elections that we will coalesce and Mr. Ramjattan will get the prime ministership and it will be divided this way and so on. But please understand that the president can go back on that and it would not be illegal. He can do it legally because it is the law that he and only he chooses the Prime Minister and his Cabinet,” Lutchman asserted.

“It would be politically stupid, very stupid and would result in the breaking up of the party and distrust from the people but it would still be legal.  People talk about you have contract between the president and them and contract and contract and contract … But what can you do? Take the president to court? The power is his legally, the people gave him that in the constitution,” he added.