Core issues
Editorial
As the Constitution Reform Commission enters the final phase of its activities it will be seeking, among other things, to identify the core issues it has to deal with. These will include the protection of fundamental human rights, the system of government and the electoral system. To many people the fundamental rights clauses will be seen as one of the key areas as these rights impact on and affect their everyday life. Whether it be the protection of their personal liberty (against arbitrary arrest or detention in custody except pursuant to the sentence of a court), their property against being taken over by government unless it is required for public purposes and then only on payment of prompt and adequate compensation (the existing clause needs strengthening, property rights are after all an integral part of a liberal democracy which wants to encourage investment, local and foreign), the right to a fair trial, freedom of expression and of association, or freedom of movement internally and externally it is clear that without these rights the quality of their lives as free persons can be severely affected. Submissions to the Commission have suggested that the Bill of Rights (and it should be so described) should come at the beginning of the constitution as it did in l966 to indicate its importance. These rights should be strongly entrenched against amendment, for example any change should require a seventy-five per cent vote in the National Assembly to be confirmed by a similar vote not less than three months later and should then have to be submitted to a referendum not less than three months after that. Why would any government want to change these rights? It has also been proposed that the many limitations and exceptions that attend the fundamental rights clauses in the present constitution should be removed and that a general clause be added, similar to Article 36 in the South African constitution, which states that the rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justified in a democratic society based on human dignity, equality and freedom, taking into account all relevant factors including the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose and less restrictive means to achieve the purpose. Of course all older Guyanese will be well aware that in the final analysis a constitution is nothing more than a piece of paper. When these rights are breached, as they were in the Burnham regime (notoriously freedom of movement, freedom of expression, the protection of property rights and personal liberty) they can only be upheld if the courts are strong and independent and if there is a strong and vibrant public opinion which will stand up to bullying and dictatorship. The culture has to evolve to support the paper rights, people have to genuinely believe in their constitutional freedoms and be prepared to struggle to uphold them. As for the system of government, there has been some pressure for returning to a pure parliamentary sytsem with a non-executive president who can be to some extent above the fray and thus able to perform certain important constitutional functions with some level of independence. This was the model at Independence and there have been several indications to suggest that if a vote was held on the issue there would be a popular majority for this model. There have also been suggestions for a second chamber or upper house of parliament though this has not gained much currency. On the electoral system there seems to be general agreement that proportional representation be retained though there is increasing support for a substantial portion of the seats in the National Asssembly being contested under the first past the post single member constituency system. Under our existing constitution this combination is possible. It is widely agreed, too, that party lists should have to show candidates in order of priority so people have some idea of who they are voting for, not just an amorphous list. One of the visiting experts who have been advising the Commission made the point that the Commissioners can benefit from some of the work done recently in South Africa and elsewhere. It is an exciting opportunity to bring our constitution creatively up to date. The report is now only three weeks away (the Commissioners have been put under the most severe time pressure) and will be awaited with great interest.
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