Pollard voices concern about unresolved constitution issues
-questions if Jan 17, 2001 poll deadline can be met
January 24, 2000
With the Oversight Committee on constitution reform yet to begin its work, questions are being raised as to its ability to fulfil its mandate in sufficient time for general elections to be held by January 2001.
It has been suggested in some quarters that it is possible that with agreement between the two major political parties - the People's Progressive Party (PPP) and the People's National Congress (PNC) - those articles which require a referendum to make any changes to them could be left intact.
Constitutional expert Bryn Pollard disagrees and in an invited comment to the Stabroek News points to Article 1, one of the articles which could only be changed by a referendum. Article 1 reads:
"Guyana is an indivisible, secular, democratic sovereign state in transition from capitalism to socialism and shall be known as the Cooperative Republic of Guyana."
The Constitution Reform Commission (CRC) unanimously agreed to delete all references to socialism in the Constitution. It also agreed that the word "cooperative" should be dropped also.
Pollard observes that if Article 1 is left intact and all the consequential recommendations are included the revised constitution would be "a rather strange document", adding that it would be "telling a lie about itself."
Pollard has advised a number of Commonwealth countries about the revision of their constitutions including Namibia and is on the CARICOM task force helping St Kitts-Nevis resolve its constitutional problems. He is also a member of a Commonwealth team of legal experts advising on the revision of the constitution of Zanzibar.
He told Stabroek News that he had expected much more debate in the National Assembly on the reports of both the CRC and the Special Select Committee which the National Assembly set up to consider and make recommendations on it.
The National Assembly did not discuss any of the recommendations but set up the Oversight Committee to oversee the conversion of the recommendations into a draft constitution for the approval of the National Assembly.
But Pollard sees pitfalls in this course particularly since there were a number of issues which both the CRC and the Select Committee left unresolved. He questions whether the Oversight Committee would have the competence to make decisions on these issues.
One such issue is the electoral system including the Elections Commission. Others include the preamble to the Constitution, the time within which judges should give their decisions, the role of the political parties and their nominees in the conduct of elections, and Amerindian land rights.
In relation to the electoral system, the CRC recommended an electoral system which combines the characteristics of proportionality with geographical and gender representativeness. The Select Committee wrangled for hours over how this recommendation could be implemented and disagreed too about whether it had the competence to acquire the services of an expert to advise if this recommendation was feasible and how it could be accomplished. The Oversight Committee has been mandated by the National Assembly to recruit such an expert if necessary and to draw up clear terms of reference for the engagement.
It was also agreed that work on the electoral system would be fast- tracked so as to allow for an early establishment of the Elections Commission to begin the necessary preparations for elections. Stabroek News understands that March is the timeline contemplated for the completion of this phase of the Committee's work.
About the competence of the Oversight Committee to make final decisions for the drafting process, Pollard noted that the Oversight Committee could not be representative of the National Assembly, comprised as it were of persons who are not parliamentarians. He stresses that if it could, then parliament must have the final say.
Also with reference to the unresolved issues, Pollard emphasised that the legal draftsmen should not be expected to fill in the gaps which seems to be a popular misconception among those involved in the constitution revision process.
"That is not their role", he explained, pointing out that the draftsmen have to be given briefs based on firm policy decisions. "They can tell whether the proposals are legally feasible but the principles must be decided by the policymakers."
Pollard too, commented on the lead role which was played by the former attorneys general and their staff and that of the present incumbent. He recalled that a lead role had been played by Sonny Ramphal SC and his staff in the drafting of the 1966 and 1970 constitutions and by Dr Mohamed Shahabuddeen SC and his staff in the drafting of the present constitution.
Bernard De Santos SC, during his tenure as Attorney General had also taken a lead role in the process undertaken at the time and had chaired the Select Committee looking at constitutional reform during the life of the Sixth parliament.
Pollard noted the present Attorney General, Charles Ramson SC, had not taken the same course as his predecessors although he may be working on these issues away from the public eye.
To assist the work of the Select Committee, Ramson had arranged for the Chief Parliamentary Counsel, Cecil Dhurjon, to be attached to it as legal adviser. He was assisted by Roxanne George from the Chambers of the Director of Public Prosecutions.
The terms of reference of the Oversight Committee also mandates it to make maximum use of the resources controlled by the State.
Pollard too in commenting on the likelihood of the January 17, 2001 deadline being met for elections, said that it would require a lot of work. He noted what he called the elaborate structure of the Oversight Committee and said that it would be quite a task to pull the work of the various committees together.
The Oversight Committee has established five sub-committees which are to provide drafting briefs for the various recommendations. These briefs will be drawn up with the assistance of a group of legal advisers and have to be approved by the Committee.
The work of the sub-committees is scheduled to be completed within a time-bound programme of activities approved by the National Assembly to ensure the general elections are held by January 17, 2001.
Pollard too has raised the issue of the role of the media and the wider society in the process of the work of the Oversight Committee, which has voted to conduct its activities away from the presence of the media save for the monthly reports it has to make to the National Assembly.
He notes that it is related to the question he raised about the competence of the Oversight Committee to take decisions on the unresolved issues. He also questions whether the exclusion of civil society is because its functions had been carried out at the CRC level.
Civil society played an active role in the work of the CRC. Civil society is not represented on the Oversight Committee and the resolution which the National Assembly adopted to establish it merely provided for "consultation with civil society if necessary".
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