Article 29 of the Constitution

Dear Editor,

A civic society group named Article 13 has a lot of urgent oversight to do in order to hold the rulers accountable for the billions that are being talked about so loosely. No doubt Article 13 is relying on rights granted to the Guyanese people in Chapter 2 of the 1980 constitution as amended.

Other Guyanese concerned about accountability may also be relying on rights such as the right to inclusive government framed in the same Chapter of the same Constitution. What will surprise Guyanese is the fact that the rights referred to as granted in Chapter 2 are rights not available. To explain this paradox I must recall a bit of Constitutional history.

In 1978 the government of the day was responding to financial problems. It issued a circular denying all government employees their traditional entitlement to merit increments due to them and ordered all government agencies to implement this order immediately. There was widespread opposition to the order and to the high-handed way in which the government had arrived at its decision.

Across the board there were meetings, objections, protests, consultations at the level of the Trades Union Congress (TUC) and a growing mood of defiance to the government. Out of all this widespread disagreement with the government measure, Mr. Teemal, a sugar worker and member of NAACIE, filed a High Court Motion seeking a declaration against the validity of the measure. It took some time for the issue to be finally determined.

When it reached the Court of Appeal, that court ruled in favour of Mr. Teemal, and struck down the circular. They found that the circular was ultra vires to the Constitution null and void and of no effect. In giving their decisions, Court of Appeal Judge Mr. Ronald Luckhoo made important findings quoted in a book by Mr. Nanda Gopaul. My own clear recollection is that Chancellor Keith Massiah made a provision for Chapter 2, pleaded by the plaintiff, saying that trade unions were entitled to participate in government decisions concerning their members. In agreeing to nullify the circular, Chancellor Massiah said, we have to give some teeth to this constitution.

The government in turn reacted sharply, bringing to the floor of the National Assembly a bill entitled – The Labour Amendment Act. This strange piece of legislation contained, among other things, the provision that the Court of Appeal decision had not been made. When members of the opposition from the PPP and the WPA charged that the government was interfering with the decision of the Court, the Attorney General Hon Mohamed Shahabuddeen declared defiantly, “The government is not interfering with the Court, but is putting a decision out of action”.

The government used its majority to pass the bill. One feature of the bill was an amendment of the Constitution appearing today as Article 29 of Chapter 2 of the Constitution. The prevailing provision reads and intends that the courts of Guyana may not enforce a provision of Chapter 2 of the Constitution unless Parliament had previously, by law, provided that the particular article of Chapter 2 should become available for enforcement by the courts.

Unless I am much mistaken as a layman, it appears to me on reading the plain words of the amendment, that people of goodwill who wish to see the implementation of several of the paper rights granted by Chapter 2 of the Constitution, have the option of coming together across party lines and other lines of division against Article 29 or any article with any other number due to editions of the Constitution that bar the Courts from enforcing the rights, which would be available without the restriction or bar imposed by Article 29 to which I have referred.

Yours faithfully,
Eusi Kwayana