ALTHOUGH, constitutionally, Guyana has three co-equal branches of government in practice, the executive overpowers the other two branches. In fact, one can reasonably argue that there is a form of executive supremacy.
This has to do with the very powerful executive presidency which was exploited by all our presidents, particularly Burnham, Hoyte and Jagdeo. Burnham and Jagdeo used the presidency to stifle democracy, while Hoyte used it partly to bring about democratic opening.
The PPP and some independent observers have suggested that the present executive has over-reached. They have cited the president’s unilateral appointment of the GECOM chair, and the fact that the courts have found in at least three instances that executive actions had violated the Constitution.
CHECKING THE EXECUTIVE
However, I do not believe that there has been a pattern of abuse of power by this executive. There have been instances of over-reach and bad policy, but these, to my mind, have not amounted to abuse of power. I think this has to do with rigorous oversight by the other two branches. Despite institutional and political obstacles, there have been more checks on executive power than at any time in our post-colonial history.
In an institutional sense, executive power can only be checked by the oversight of the other two branches of government: The legislative and judicial branches.
In our present circumstances, where the governing coalition controls both the legislative and executive branches, it is difficult to have any effective oversight of the executive by the legislature.
But, to be fair, there is some room for oversight in the sectoral committees by the opposition; and the PPP has been doing a very good job at that level.
There are two impediments to more effective oversight by the legislature. First, there is not enough separation of powers. We need to move away from the system whereby the entire Cabinet sits in Parliament, even when a Cabinet member is not an elected member. This is a very counter-productive and obsolete arrangement. We are basically asking the Executive branch to oversee itself.
The second impediment has to do with a political culture that is grounded in party loyalty, or voting along party lines. It means that MPs do not vote their consciences, or on the perceived feelings of their constituencies. So, it is hardly likely that an MP of the ruling coalition, or for that matter of the PPP, would vote against his or her party in Parliament.
From the ruling coalition’s standpoint, the fact that it has only a one-seat majority makes it even more impossible for such a scenario.
We have, however, seen instances where the judicial branch has pushed back against the executive. This is good for democracy, since the courts are the final arbiter of the law. When one takes into consideration that we have in the past had political interference with the judiciary, it is remarkable that the court is still prepared to act independently.
The other area of oversight that is very encouraging is that of Civil Society. We have always had a very vocal, if not vigilant, Civil Society in Guyana. The problem has been the partisan bent of our Civil Society organisations, whereby some tend to be more vocal when one or the other party is in power. But I think they have generally done a good job at oversight of the government.
The coming on stream of integrity legislation and anti-corruption initiatives would also go a long way in checking executive power. But, ultimately, constitutional reform is the most effective way of reducing the powers of the executive, which is itself a formal check on the enormous power of the executive.
I completely agree with Lincoln Lewis and others that compliance with constitutional provisions is vital to an effective democracy. But I think the issue is much broader than Lincoln often frames it. It is not a matter of compliance with the present constitution or constitutional reform, or one trumping the other. We must do both. I think, in our case, both compliance and reform are imperative.
Constitutional reform is aimed at strengthening the democratic foundations of the constitution, which, in turn, would likely lead to more effective compliance. A constitution ought to be a living document that is constantly adjusted to meet the social, political, economic and cultural realities of the society.
Downplaying constitutional reform assumes that the society is stuck in time; that it is not dynamic. You don’t move from colonialism to freedom without constantly adjusting your constitution to make it easier to achieve the latter. It is a constant process in which you strengthen just laws, stamp out unjust ones, and replace them with progressive ones.
The proof of an effective constitution is its ability to guarantee political and social stability, while protecting citizens from the wrath of institutional power, and from their fellow citizens.
A just constitution, in our case, must simultaneously guarantee rights and liberty to individuals and groups, and promote democracy and ethnic equality.
We were given a constitution at independence that, in the final analysis, enabled rather that contained our ethnic divide. Were there good things in that Independence Constitution? Yes. But there were aspects of it that were invariably exploited by the political elites, in their pursuit of normalising an authoritarian State.
The 1980 Constitution enshrined rights that were not expressed in the Independence Constitution; but it simultaneously strengthened the authoritarian State. In particular, it strengthened the powers of the executive. It also continued to enable ethnic dominance by keeping in place the winner-takes-all device.
The 2001 reforms were aimed at dismantling that authoritarian State and doing something about the winner-takes-all system. While there were some modifications, it did not treat in any fundamental way with the twin problem of executive tyranny and ethnic dominance. Two decades later, the society cries out for corrective measures on these fronts.
There is, therefore, a relationship between constitutional reform and compliance with just laws. The more you strengthen the democratic foundations of the constitution, the more likely leaders would comply with the laws. In the end, the constitution must not only be a legal document with formal rules, but it must also be a document that promotes equality and social justice, and broaden the scope for freedom of individuals and groups, while at the same time serving as a check on authoritarian leadership.