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By Gary Best (Rear Admiral Rtd)
Recently, in the public domain, far and wide, there was a lot of anger, and quite rightly so, about the non-consultation with, non-invitation of, and non-participation by, the parliamentary opposition in the recently concluded 2022 International Energy Conference and Expo hosted by the government of Guyana, which was held at the taxpayers funded Guyana Marriott Hotel.
Importantly, it doesn’t, and did not matter, which agency, or who arranged it. It had the distinguished imprimatur of the Government of Guyana. It was about Guyana’s natural patrimony. More importantly, it was about Guyana oil and gas resources that belong to all its citizens. But this is not the first time we are witnessing unbridled disregard by the government towards the parliamentary opposition. For the government, it matters not that the Guyana constitution says otherwise or, for that matter, the people’s protests. The citizens are quite right to be angry and protesting, simply because exclusion of the parliamentary opposition from governance is a breach of Guyana’s constitution, which clearly makes provision for such governance.
It was none other than Dr Mohammed Shahabuddeen, Attorney General and Minister of Justice as he then was, who, in pointing to one of the key failings, if not the most important of the then Guyana 1966 Constitution, posited that “… the degree of people involvement for which [it] provided [was] consequently limited. This was the fundamental issue that affected us as a new nation state. He was at the time addressing the PNC’s Third Biennial Congress on the New Guyana Constitution titled: Philosophy and Mechanics. Dr Shahabuddeen further explained that the 1980 constitution intended to cure that specific, but fundamental defect, by providing for “practical democracy as distinguished from formal democracy” in which “people and their mass organisations … [saw] themselves as a legitimate part of the day-to-day decision-making process of the state”. The 1980 constitution came into effect, parliament was reconstructed, and this fundamental concept of ‘greater people involvement’ found expression through Article 13.
The Guyana constitution is divided into two main parts: Part 1- General Principles, which encompasses the constitutional philosophy, and Part 11- Specific Rules, the mechanics that spell out these general principles and philosophy of the constitution. Art 13 falls under the General Principles, and more importantly under Chapter 2 which deals with the Principles and Bases of The Political, Economic and Social System. Therein are the fundamental pillars upon which the 1980 constitution was constructed, and from which all else flows.
Article 13 provides that “[t]he principal objective of the political system of the State is to establish an inclusionary democracy by providing increasing opportunities for the participation of citizens, and their organisations in the management and decision-making processes of the State, with particular emphasis on those areas of decision-making that directly affect their well-being”. The practice of excluding the parliamentary opposition from governance collides with and is a breach of the principle of inclusionary democracy contained in Article 13. It is not for the PPP administration to pick and choose if, when, where, and to what governance matters the parliamentary opposition attends. It is for the PPP administration to accept the guidance provided by the constitution.
The proposition that it is unconstitutional to exclude the parliamentary opposition from the just concluded Guyana hosted International Energy Conference and Expo has no inherent contradiction. In fact, it is supported by the constitution itself. Keep in mind also that my reference to the recent international energy conference is by no means the only example of unconstitutionality. In the first instance, Article 13 does not stand alone. On the contrary, it gives life to the chapters on general principles, the Parliament, and the Executive. It is further buttressed by several other provisions, some of the most important I will now mention for context and proof.
Art 50, part of the General Principles, provides that “[t]he supreme organs of democratic power in Guyana shall be, (i) the Parliament; (ii) the President; and (iii) the Cabinet. It is critical to our analysis to recognize that Parliament is the highest of the supreme organs of democratic power. This speaks to government and governance. Art 51, which falls under the heading Parliament, provides that “[t]here shall be a Parliament of Guyana, which shall consist of the President and the National Assembly”. Here, the framers of the constitution have fused the executive into the legislature (Parliament). Consequently, government, via its head, the President, is fused into Parliament. Therefore, government and the National Assembly (Art 52) comprise parliament which equals parliamentary Governance, or put another way, the governance of Guyana – a jurisdiction that is greater than the National Assembly, simpliciter.
Art 99 (2) provides that “[n]othing in this article shall prevent Parliament from conferring functions on persons or authorities other than the President”. The importance of Article 99 (2), in the context of executive authority being expanded to others by Parliament, is a reminder that even though Art 99 (2) fuses Parliament into the executive, it also operates as a fetter on the executive. And I do not believe the fusing of Parliament into the executive is accidental. Why do I say so? Art 110 (1), which falls under the heading, the Executive, provides that “[t]here shall be an office of the Leader of the Opposition, election to which office shall be in accordance with the constitution”. Note that the framers of the constitution have yet again deliberately located the Leader of the Opposition into the Executive. This too is no accident! And even though he and his charges are members of the National Assembly, the framers of the constitution must have contemplated a wider than usual mandate in keeping with Article 13. Further, making the functions of the Leader of the Opposition part of the Executive, send a clear signal that government and governance are meant be executed by the government and the parliamentary opposition. Any suggestion that it is limited to specific articles therein collides with Article 13 which, as aforesaid, forms the foundational pillars of our political system.
Even though, Art 106 provides for a Cabinet which shall aid and advise the President in the general direction and control of the Government, Art 119B, which falls under the heading, The Executive, expands that mandate to the parliamentary opposition by providing that “[t]here shall be parliamentary sectoral committees established by the National Assembly with responsibility for the scrutiny of all areas of Government policy and administration including (i) natural resources; (ii) economic services; (iii) foreign relations; [and] (iv) social services”. Art 119B (2) goes on to further state that “[t]he Chairperson and Deputy Chairperson of each parliamentary sectoral committee shall be elected from the opposition sides of the National Assembly”. Obviously, the framers of the constitution clearly intended for the parliamentary opposition to be part of government and governance by giving them power and authority to scrutinise government policy and administration. Art 119B therefore rebuffs the notion that only cabinet is responsible for government and governance of the nation’s affairs.
Clearly, matters relating to Guyana’s international energy conference falls within the natural resources sectoral committee, which is chaired, on rotation, by the parliamentary opposition. Therefore, by what measure, can the Government not include the parliamentary opposition in all matters relating to these sectors? This is not an issue of invitation. It is an issue of ‘an as of right’ to be consulted, and ‘an as of right’ for the opposition to scrutinize. One needs to look no further to recognise constitutional breaches by the PPP administration. Further, it is yet another example of parliament being fused into the executive to give power to the call for the establishment of an inclusionary democracy as provided for by Art 13.
The framers of the 1980 constitution gave Guyana a ‘people first’ constitution for a just and fair society. The PPP administration seems bent on breaching the constitution and returning Guyana, by practice, to the tenets of its 1966 constitution, which as a nation, we fought and changed for the better. The Guyana constitution therefore gives expression of the dual role of Ministers as part of the executive and parliament, and the equal dual role of the Leader of the Parliamentary Opposition, as part of the executive and parliament. It created the conditions for participation by the people and their parliamentary representatives in the management and decision-making process of the government. How could sovereignty belong to the people, how can inclusionary democracy be guaranteed when the people’s representatives are excluded from governance as expressed through the very inclusionary principle located in Article 13. And even though the expressed powers of the Leader of the Parliamentary Opposition are not as pervasive as the President, they are quite substantive. Therefore, excluding the parliamentary opposition from governance is a breach of Guyana’s constitution.