The systematic dismantling of the Constitution and Rule of Law

By Mohabir Anil Nandlall, MP, Attorney-at-Law

Countries in the English- speaking Caribbean are often described by Constitutional theorists as “constitutional democracies”. This is so for many reasons. Their constitution is their supreme law. It creates their system of Government and invests it with powers to govern the State and limits those powers. It determines who will govern and how they will govern. It creates and regulates the relationship between the State and the citizenry.

It confers certain obligations on the State and it imbues the citizenry with certain rights and freedoms. It determines how the State raises, and how it will account for the expenditure of those revenue. It sets out how laws are made and by which institutions they are to be interpreted and enforced. It creates a series of institutions which acts as checks and balances against abuse of power and through which the State is to be held accountable for its actions in order to ensure that there is good and democratic governance in accordance with the Constitution and the rule of law. Guyana is one of these territories.

INDEPENDENT CONSTITUTIONAL INSTITUTIONS

Interwoven in this constitutional fabric, are several institutions which are structured, designed, financed and constituted in such a manner that they enjoy considerable functional autonomy and independence in the discharge of their individual mandates and, they are strongly insulated from any form of influence, in particular, from the Executive. These institutions include, but are not limited to, the Judiciary, the Office of the Auditor General, the Director of Public Prosecutions, and the Guyana Police Force.

It is the Judiciary which the Constitution ascribes the exclusive responsibility to interpret and uphold the Constitution and the laws; to strike down unconstitutional laws and condemn unlawful Executive actions and abuses; to determine disputes between the citizenry and the State and among the citizenry themselves; and to impose sanctions on those who violate the law. The independence of the Judiciary is zealously guarded in the Constitution by a series of mechanisms. Its officers are appointed by a special process. They are conferred with strong security of tenure. Their remuneration package cannot be altered to their detriment. They are financed by a direct levy on the Consolidated Fund.

The Office of the Auditor General, by virtue of the Constitution and the Audit Act, enjoys a regime of independence similar to that of the Judiciary. Its core functional responsibility is to exclusively audit the State’s receipts and expenditure of public funds.  It prepares and presents annual audited financial statements, in relation thereto, to the National Assembly for its scrutiny.

The Director of Public Prosecutions is another institution which enjoys similar   constitutional independence. Its main function is to advise the State on criminal matters and to institute, undertake, take over and continue or discontinue criminal proceedings against any person before any Court in respect of any offence against the laws of Guyana. The functional independence which the DPP enjoys can be gleamed from the language of Article 187 (4): “In the exercise of the powers conferred upon him or her by this article the Director shall not be subject to the direction or control of any other person or authority.”

The Guyana Police Force is the institution vested with the exclusive power to investigate and prevent criminal conduct and, to generally maintain peace and public order. The Force’s independence is manifested in the way its officers are appointed, promoted, disciplined and removed from office. More significantly, the Force is superintended by the Commissioner of Police who has exclusive responsibility in respect of management and administration of the Force and over operational matters, to the exclusion of the Executive Government. The Governmental officer who holds ministerial responsibility in respect of the Police Force can give directions in relation to policy matters only.

The above exposition is but a fleeting glance at the length to which the framers of the Constitution have traveled, to alienate from Executive Government, certain responsibilities and to reside them in independent and autonomous organizations, then insulating these organizations from Executive influence. These complex and multiple constitutional mechanisms were created for one purpose only: that is, to create a system of checks and balances to avoid the abuse of power by the Executive Government.

THE UNDERMINING OF THESE INSTITUTIONS

The Coalition Government, over the last year, has embarked upon a deliberate and centrally orchestrated course of action to persecute and which-hunt ministers and officials of the PPPC administration in order to prove that their widespread public allegations of corruption. However, they need the blind loyalty of the aforementioned institutions in order to succeed. Thus far, apparently, they have been unable to penetrate the cloak of independence which the aforesaid institutions enjoy. In consequence, we are witnessing a clear and consistent strategy to avoid the engagement of these institutions as they continue to pursue their vindictive agenda.

Not satisfied with the Auditor General’s Reports over the last several years, the regime, in violation of the Constitution and the Audit Act, simply shoved aside the Audit Office, handpicked over a dozen auditors, most of them being their allies and cronies and are paying them hundreds of millions of dollars to do “forensic audits”. Still, these audits are unable to unearth the type of evidence which they seek, although, the most unconventional methods are being employed by some of these Auditors.

Dozens of files have been sent to the Police Force and to the Director of Public Prosecutions with firm instructions to investigate and charge. Again, the response from the Police and the DPP has been disappointing to those who have already sharpened their political hatchets. The situation is exacerbated by every passing day because it results in considerable damage to their credibility. After all, they have intoxicated their supporters with the propaganda that the PPP administration is guilty of massive corruption in office but after one year in complete control of the government and State machinery, they are unable to prefer charges.

Not being able to exert the type of pressure and influence over the Police Force and the DPP as they would like, because of the constitutional and institutional insulations to which I have referred above, greater reliance is now being placed upon SARU and SOCU, two organizations that are politically staffed and directed to conduct investigations with the hope that they can find or I dare say, manufacture the required evidence. Still yet the desired results are not forthcoming. In the meanwhile, the crescendo of frustration and desperation continues to build. As a result, laws and protocols are being drafted to strengthen and enlarge the powers of SARU and SOCU. Recently, there has been an expressed intention to establish “a Special Prosecutors’ Office”. The obvious objective is to circumvent the DPP or at least to emasculate that office of the autonomy and independence guaranteed to it by the Constitution. I have no doubt that we will soon hear about the establishment of “Special Courts” where these charges will be heard and determined.

THE GRAND PLAN

Let me now make the picture clearer: the Government is handpicking its own auditors and directing them who, what, how and where to audit; when these audit reports are completed, they are then sent to two political outfits masquerading as law enforcement agencies, SARU and SOCU, which are being directed who and what to investigate; and when these investigations are concluded, the findings will be sent to a Special Prosecutors Office for legal advice. This will be an office that will be staffed by the Government with its cronies. Charges will be instituted and will be prosecuted by persons from this politically tainted unit. These charges will be heard and determined by the “Special Courts” which I anticipate will be established and which will be presided over by magistrates in whom the Government resides great confidence. That the decisions will be perverse, I am in no doubt.

In conclusion, the Constitution and the rule of law are under siege. Authoritarianism is building a formidable foundation. Today, the target is the PPP’s leadership and its supporters. Tomorrow’s victim will be you. It is the natural evolution of a dictatorship.