Protecting our constitution

Stabroek News
December 2, 2000

It is normal in democratic countries to make alteration of the constitution difficult for the obvious reason that it is not desirable for governments to be easily able to amend the basic law of the land that governs the structure of the legislature, the executive and the judiciary and many other matters.

Thus amendments usually require at least a special majority vote in Parliament to be approved, say two thirds or three quarters, rather than a simple majority and in the case of some clauses that may require special protection (such as the term of a government or fundamental human rights) may also require approval at a referendum of the people, to be held not earlier than a specified minimum time after the amendment has been passed in parliament.

In the original l966 constitution of an independent Guyana several articles of the Constitution were deeply entrenched against change and required the approval of a referendum to be altered. These included Article 66 (Electoral system), Article 68 (Elections Commission) and Article 82 (the prorogation and dissolution of parliament). In l978 the Burnham government introduced the Constitution (Amendment) Bill No. 8 of l978 which sought to remove the need for a referendum to change any of these clauses. Neither in the Explanatory Memorandum to the Bill nor in the debate in Parliament did the government indicate what specific changes it wished to make. The thrust of the argument put forward was that this was a colonial constitution and it was hampering the government in its plans.

The Bill was duly passed and a referendum was held later. There was a successful boycott in which all elements of civil society participated. This was the era when the doctrine of paramountcy of the party had been proclaimed and there was a general apprehension that this amendment might lead to the end of constitutional government. The polling stations were empty on voting day but a large turnout was officially reported as well as the overwhelming support of those who had allegedly voted. The government then used its two thirds majority in parliament to extend the life of the parliament. It remained in power for an extra two years and introduced a new constitution again using its two thirds majority to pass it. The life of parliament was again extended for two years in l990.

It is clear that the framers of the Constitution did not envisage any government obtaining a two thirds majority as that majority alone could, for example, amend the Articles dealing with fundamental rights. The combination of a two thirds majority and the removal of the need for a referendum was lethal. It meant in effect that any part of the constitution could be changed overnight by a vote in parliament.

In the l980 constitution the requirement for a referendum was restored for some Articles like the new Article l which said that "Guyana is an indivisible, secular, democratic sovereign state in the course of transition from capitalism to socialism and shall be known as the Co-operative Republic of Guyana", and Article 2 which defined the territory of the State but it did not restore the need for a referendum for Articles like those dealing with the electoral system, the elections commission and its functions, and Article 82 which dealt with the prorogation and dissolution of Parliament and provided that Parliament, unless sooner dissolved, should continue for five years from the date when the Assembly first meets after any dissolution and should then stand dissolved.

Surprisingly, the recent Constitution Reform Commission did not restore the requirement for a referendum for amendment of that clause though it did provide the protection of a referendum for the fundamental rights Articles. The latter was a welcome innovation and the former perhaps an unfortunate oversight in the haste to complete its business.

Experience has certainly shown that some of the Articles of our constitution need to be deeply en-trenched to prevent manipulation by governments which could, for example, legitimately obtain two thirds majority support in Parliament by virtue of a coalition. Failing this, the constitution is too fragile.

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