Below in an opinion piece by Attorney-at-Law, Member of Parliament and former Attorney General and Minister of Legal Affairs, Anil Nandlall:
Last week, I examined how a democratic Constitution, with its checks and balances, poses a hindrance to authoritarianism. In order to make the essay pragmatic, I gave real-life supporting examples of how the authoritarian runs afoul of the Constitution. I chose events in the rule of Guyana’s most authoritarian politician, Mr. Forbes Burnham, historically, and actions of President David Granger, of more recent vintage, as illustrations to buttress the main plank of my proposition.
That article evoked a spirited response from Dr. Henry B. Jeffrey, in his “Future notes” published on the 21st day of February, 2018, in Stabroek News, under the bold caption: “Nandlall’s flawed political theorizing”. The main reason why I chose to support my thesis with both historical and contemporary events involving prominent political personas was, precisely, to avoid theorizing in abstract. Unfortunately, my efforts failed to either persuade or impress Dr. Jeffrey, who accused me of “extremely dubious” and “flawed” political theorizing.
The goodly Political Scientist begun by taking umbrage to my contention that Mr. Burnham recognised very early that he could not function under the Westminster Constitution promulgated by Great Britain, and therefore, swiftly moved to change it, eventually, scrapping it all together. He argues that Mr. Burnham operated for 16 years under that Constitution before his own creation, the 1980 Constitution, came into force. To the extent that the inherited Constitution remained in force for 16 years, Dr. Jeffrey is correct. However, he refuses to recognize the underlying and demonstrable dislike, which Mr. Burnham had for that instrument which resulted in constant, incremental, but fundamental changes, made to the Constitution, which struck at its very foundation during that period.
In 1964, when Mr. Burnham took the reins of Government under a coalition, comprising of the PNC and the UF, the head of the Judiciary was the Chief Justice. The incumbent was Sir Joseph Luckhoo, a fiercely independent and outstanding jurist, with whom Mr. Burnham did not enjoy good relations. To a democrat that ought not to have mattered. Not Mr. Burnham. For an authoritarian, there must be complicity, if not subservience, in the judicial branch. In 1966, the Independence Constitution not only brought into being the Guyana Court of Appeal but the occasion was used to create a new office as head of the Judiciary. That of the Office of Chancellor – the only of its kind in the entire Commonwealth other than England, herself! To this office, Sir Kenneth Sievewright Stoby, a Guyanese, then in Barbados, was imported and installed. By these constitutional machinations, Sir Joseph Luckhoo, the sitting Chief Justice and hitherto head of the Judiciary, was unceremoniously demoted! Rather than endure such indignity, this distinguished jurist migrated from these shores and took up an appointment as President of the Jamaican Court of Appeal, where he remained up until his retirement.
The second set of major constitutional alterations came on the 23rd day of February, 1970, with the promulgation of the Republican Constitution. This move legally severed our constitutional relationship with Great Britain and replaced the Queen as Head of State with the newly created titular President, with the head of the Executive being the Prime Minister. Thus, the Govern General, as representative of the Queen, as Head of State, was permanently removed from our constitutional infrastructure. It is this constitutional maneuver which laid the foundation for a merger of the Head of State and head of the Executive into one office, styled, the Executive President, which the 1980 Constitution birthed. This Constitution, as I explained last week, was one crafted to Mr. Burnham’s liking and was brought into force by a fraudulent referendum process.
Significantly, it is the 1970 constitutional changes that abolished all appeals to Her Majesty’s Privy Council and removed that Court completely from Guyana’s legal system, making the Guyana Court of Appeal the apex of our Judiciary. The environment was, therefore, created for political interference with the Judiciary to begin.
At this juncture, it is apposite that I mention that during this period, there was pending, in the court system, a legal challenge to the rigged 1968 national elections, filed by an elector. Had this challenge traveled all the way to the Privy Council, those elections, more likely than not, may have been nullified. Many believed that Mr. Burnham was not prepared to take such a monumental risk. As history has recorded, Mr. Burnham rigged several elections after that and subverted the rule of law in multiple ways. Therefore, the abolition of appeals to the Privy Council was a very calculated artifice.
So, Dr. Jeffrey, while the Westminster Constitution remained in force, in six short years Mr. Burnham systematically uprooted and dismantled certain fundamentals pillars upon which it was constructed. By 1980, it was wholly replaced. I hope I have provided enough evidence to persuade you to my point.
Dr. Jeffrey next posits that the People’s Progressive Party (PPP) “also ran an autocratic regime and by the time, it demitted office 60% of its own constituency and 80% of Africans did not care for them”. Dr. Jeffrey was a Minister and sat at Cabinet and in the National Assembly for 17 consecutive years in that very PPP Government. I respectfully suggest that he dedicate one edition of “Future notes” to inform what role he played in resisting the PPP’s autocracy. I hope he will not tell us that he was a mere officious bystander. That would not only be incredible but would render him equally guilty by omission. As it regards the latter part of his statement (quoted above), it took a coalition of five political parties, via questionable elections, to remove the PPP after 23 years in Government and yet, only by less than 5,000 votes. Those statistics provided by Dr. Jeffrey, therefore, cannot be correct.
Guyana Bar Association
Dr. Jeffrey next attributes to me a proposition, which he labels “absurd” but which I never advanced. He writes: “Furthermore, absurd as it is, Mr. Nandlall appeared to have been suggesting that gridlock does not now exist in the appointment process…”
Of course it does. It is in recognition of this gridlock that I posited that the framers of the Constitution also recognised the same and in order to break this gridlock, crafted Article 127 (2). Dr. Jeffrey does not so construe Article 127 (2). Well, I do not know for what else Article 127 (2) was intended, if not to break a gridlock, created by Article 127 (1). He then blames the PPP Government “for not making sufficient effort to use the constitutional reform process to solve the problem”. That it was the constitutional reform process that produced the “problem”, clearly eluded Dr. Jeffrey. In fact, there was no “constitutional reform process” thereafter, for the PPP to “solve the problem”.
Dr. Jeffrey then advances the proposition that in his opinion, the President can still lawfully appoint his nominees to act by utilizing Article 127 (2). No, he cannot. Clearly, the goodly Doctor is wandering into territory with which he is unfamiliar. My views aside, the Guyana Bar Association in a recent missive declared that should that occur, the appointments would be “null, void and unconstitutional”.
Finally, I endorse Dr. Jeffrey’s concurrence with the sentiments expressed by the President of the Caribbean Court of Justice (CCJ) that, “acting appointments for protracted periods are generally inimical to fearless, independent performance” and that “good governance and the welfare of the citizens require that the top judicial officers of Chancellor and Chief Justice be properly filled…”
However, I digress sharply from the learned President of the CCJ, who places the solution in litigation. In my view, apart from making declaratory orders to the effect, that such a state of affairs is repugnant to the rule of law, a Court can do no more, having regard to the clear and express language of Article 127 (1). It cannot compel the agreement, which the Article requires. Neither can it substitute itself for those in whom the Constitution places the responsibility to procure those appointments. Should a Court endeavour to do either, it would be turning the Separation of Powers doctrine on its head.