Constitutional reform meaningless without constitutional compliance

WITH plans for constitutional reform in the pipeline, Attorney-General Anil Nandlall is urging that adherence to the Constitution is of equal importance as the reform itself.

During an interview with the Guyana Chronicle on Wednesday, the Attorney-General explained that in keeping with the People’s Progressive Party/Civic (PPP/C)’s 2020 Election Manifesto, constitutional reform is of utmost importance to the Government, and works are underway to facilitate those changes.

“Constitutional reform is always necessary, like every other aspect of law reform, to ensure that the law is changed at various intervals, so that it is always in sync with the evolutionary changes in a society, and so that the law does not become abstract and archaic, but that the law remains dynamic and is changed to meet the exigencies of an evolving society,” he explained.

To commence the process, the Management Committee of Parliament met on Wednesday, with regards to the agenda of the Parliamentary Standing Committees, including the Constitutional Reform Committee.

“The Constitutional Reform Committee of the National Assembly will be the instrumentality through which we will pursue Constitutional Reform,” he explained.

Given the importance of Constitutional Reform, it will not be solely a Government initiative and the Constitutional Reform Committee will be the principal Committee to execute the mandate. The committee is comprised of the Government as well as the opposition.

“The Government expects that the reform process will be one that will be driven by a commission; that will be comprised of three important stakeholders, the Government, the opposition and the civil society, so it will be a tripartite commission,” Nandlall told this this publication.

WIDE CONSULTATION

The Attorney-General noted that the process will not only involve experts, but the Guyanese people at large will play a dominant and fundamental role in the reform process.

“It is expected that the commission will act on a consultative basis, and will consult individually and collectively with stakeholder organisations, as well as citizens of Guyana from all walks of life and all geographic locations,” the Attorney-General pointed out.

He further explained, “The ommission will solicit and enlist recommendations in relation to constitutional change, and that commission will also consult experts who will aid and assist it in the discharge of its functions. It is from those recommendations that the constitutional reform proposals will come, and then we will take it from there.”

While constitutional reform is on the minds of many Guyanese, the reforms are meaningless unless there is adherence and compliance with the Constitution.

The Guyana Constitution is a ‘written Constitution’, whereby the fundamental laws are separated from the ‘ordinary laws’, and are codified into a single document. It is referred to as the highest law of the country that is guarded by the Supreme Court, and its provisions are entrenched.

Legal academics such as A.W. Bradley and K.D. Ewing have described the Constitution as “a document having special legal sanctity, which sets out the framework and the principal functions of the organs of Government”.

However, that special legal sanctity did not prevent prominent members of the previous administration, along with others, from completely disregarding and misinterpreting Guyana’s Constitutional provisions.

While recognising the importance of the reforms, Nandlall stressed that adherence to the provisions of the Constitution as equally important.

“Constitutional reform is seen by some as a panacea, but it may not be so. Those who feel that constitutional reform would lead to utopia, that is not, so unless constitutional compliance is of equal, or, in my view, of greater significance.”

Nandlall explained, “We can put the best Constitution forward, but if you have a culture of non-compliance of the Constitution, then the best Constitution will not work; it will become a sterile document. And I believe that the issue of constitutional compliance for political reasons is not given the prominence and the fundamental importance that it deserves.”

In making his argument, Nandlall alluded to the series of events that occurred under the previous administration which led the country into a constitutional crisis.

EGREGIOUS BREACHES

“We saw, and the world saw, constitutional non-compliance at its pellucid and graphic best over the last five years, and in particular the five months which followed the 2020 elections,” the Attorney-General said, adding:

“In that period, from 2015 to 2020, you had very clear provisions of the Constitution misread, misinterpreted, simply not read, and the most asinine interpretation attached to clear literal grammatical English words to pervert them in order to pursue a political agenda.”

He vividly recalled the situations, from the passage of the December 2018 no-confidence motion, to the appointment of the GECOM chairperson and the post-election drama.

“For example, the provision that deals with the appointment of a Chairman of the Guyana Elections Commission; a provision in the Constitution that is nearly 30 years old, and interpreted uniformly for those 30 years without any ambiguity; without any controversy,” he said, adding:

“Then suddenly, when the time came to appoint a Chairman by President David Granger, this constitutional provision that never posed a problem before, became suddenly a very complex and controversial provision, with all manner of the most outrageous interpretations being placed upon it, that led to an impasse which lasted nearly a year.”

Nandlall explained that not only did prominent members of the previous administration attempt to apply their own interpretation to the Constitution, but a plethora of individuals followed suit.

“Then you had the no-confidence motion, Articles 106(6) and 107 of the Constitution, a primary school child could have read that and understand its clear meaning and its clear significance,” he said.

“Yet half of a nation argued for an entire year that clear literal English Language expressed in that provision meant something else. And I’m speaking about starting with the President, to the Attorney-General, to professors at universities, to lawyers and even to judges,” he pointed out.

Nandlall noted that by the time the budget is presented in the following year, the Government will have a roadmap in place to pursue the constitutional reforms, and the necessary budgetary arrangements will be made to facilitate it.

He stressed that even when the Constitution is reformed to reflect present- day society, individuals at every level has a duty to comply with the provisions, or the reforms will mean nothing.