The matter of the oath – the written law should apply to all, regardless of status

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Dear Editor,

This account of the “CASE OF OATH” which I brought against President Forbes Burnham shortly after the 1980 general election is taken from memory only and is therefore not perfect.

The circumstances are that the 1980 Constitution had been imposed on the country. This recount comes at a good time as the current Attorney General publicly undertook on Globespan after the end of the 2020 election deadlock a review of Guyana’s Constitution after extensive consultations with citizens. He promised that the consultations will be thorough. Our experience is that a constitution can be imposed despite the fact that there had been in the post-referendum period after 1978, a Constituent Assembly sitting in the hemicycle of the National Assembly, with a lot of media publicity in the media very restricted from those days. I will now explain what I remember of the merits of the oath case and leave for later my reminder to the present population of how the 1980 Constitution was imposed.

The 1980 Constitution was labeled “The People’s Constitution” by its promoters. It was promoted as the most advanced constitution in an ex-colony up to that time. Those who know her will remember that she described Guyana, among other things, as a country in transition to socialism. It has also been declared a secular state and I feel the old oath of office was deliberately revised to reflect secularism. The Oath of Office in the Independence Constitution, and I hold no brief for it to be read – Oath of Office 1980.

GUYANA – The Constitution of Independence of 1966 – The Oath of Office
I, ……. ………… …. ……. ………… , swear [or solemnly affirm] that I will faithfully perform the office of …. ,… . ……… …. …. …… without fear or favor, affection or ill will and that in the performance of the duties of this office, I will honor, support and preserve the Constitution of Guyana. So help me God. [to be omitted in affirmation.]

GUYANA – The 1980 Constitution – The President – ​​The Oath of Office
“I (name) hereby solemnly declare that I will bear sincere faith and allegiance to the people of Guyana that I will faithfully exercise the office of President of the Cooperative Republic of Guyana without fear or favour, affection or ill will and that in while performing the duties of this office, I will honour, support and preserve the Constitution of the Cooperative Republic of Guyana.

Readers will note that the 1980 Constitution removed the ability to swear with words. “So help me God”, and left the incumbent no choice but the option of an affirmation. This was the new oath of office adopted by the National Assembly and approved by the President.

With the highly controversial 1980 elections over, the presidential candidate of the National People’s Congress came to be sworn in before the Chancellor of the Judiciary. The ceremony was broadcast on the government’s monopoly radio station and listeners heard the voice of the president being sworn in. As he complied with a prescribed requirement to my surprise, the president, after reading the new oath of office, added “and I swear, so help me God”.

The president’s statement struck me as the exercise of a privilege of power which he used to present himself, rightly or wrongly, to a generally religious population as one of them.

His actions struck me as an abuse of power and privilege and I immediately began discussing it from that angle with others who had been active in the fight against the dictatorship. Among them were lawyers who had taken a stand against the 1978 referendum aimed at making another referendum on the new constitution unnecessary.

One of the main organizations campaigning against the planned referendum was the Citizens’ Committee, organized after careful contacts by Walter Rodney with various trade unions and with organizations representing lawyers, doctors, architects, accountants, engineers, journalists and other specialized areas of work.

The new constitution provided that the presidential candidate with the highest number of votes in the general election should be declared president, regardless of the number of votes obtained, however, the constitution stipulated that before assuming the functions and duties of president , the Head of State must take and subscribe to the oath of office. According to the 1980 Constitution, there could be no electoral petition against the president once declared elected. The only recusal of the president could relate to the allegation that the person was not qualified to be president and the recusal had to be brought before the Court of Appeal under Article 133.

My approach to the courts as a plaintiff was based on my argument that the President had not taken the oath of office as required by the 1980 Constitution and was therefore not qualified to serve as President.

Arguments in the case occupied the Court of Appeal with three judges, for three days. To overcome the President’s immunity from prosecution, I was advised to name the Attorney General as one of the defendants. The attorneys briefed me on the State Procedures Act that allowed the President’s actions to be subject to judicial review. I argued my claim in person in this court and the state was represented by Dr Shahabuddeen, the Attorney General. The respondent initially argued that I did not have standing in the case, but the court overturned it and allowed me to plead.

My case was that the Legislature had made a deliberate decision altering the oath of office and prescribing a new one which permitted only an affirmation. I had a lot to learn. The Respondent argued that everyone has a fundamental right to hold and hold a religious belief and that my argument would deny the Respondent that right. I cited against my argument a case from the House of Commons which I believe involved the MP Salmon about an oath. The court’s decision was that regardless of the form of the prescribed oath, the person had the right to profess their religion anytime and anywhere. The presiding judge, Chancellor George, found that the president had in fact repeated the words of the oath and then added what he called a surplus. Another judge, Justice Luckhoo, agreed with the argument that the president had the right to profess his religion. He noticed the economy of words in my arguments. There was a primary argument that I decided not to put forward because I did not know the case law. It was the distinction between a written constitution, like that of Guyana, and a constitution based on the supremacy of Parliament and the Common Law. The laws of Guyana provide that the Common Law of England applies to Guyana.

I had also observed that our educated British lawyers, in my opinion, which may be a mistake, seemed to have a soft spot for British jurisprudence against the written constitutions of newly independent countries, even in those countries, unlike the Guyana where ruling party primacy was not a factor.

I would say that I brought the matter of the oath to demonstrate to the public that the written law should apply to everyone, regardless of their status. I lost the argument because UK case law favored the defendant and because fundamental rights are available to all citizens, regardless of status.

In my promised description of the process after 1978, I will alert readers to the ways in which the supreme parties apply their will, with or without a valid majority, in the legislature. I hope public-good lawyers will help the public by pointing out the mistakes I made in this review.

Respectfully yours,
Eusi Kwayana


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