Constitutional commission tackles some thorny issues
July 5, 1999
At one of its longest sessions yet during which tempers flared at times, the Constitutional Reform Commission on Friday negotiated its way to recommendations on a number of the thornier issues so far in its review of the constitution.
It was the proposals on the electoral system which the commission was being asked to discuss without the benefit of the written document in front of them, which caused the frayed tempers. A decision on the proposals had been deferred to the Friday meeting after several inconclusive discussions on the issue.
Commission chairman, Ralph Ramkarran SC, explained that because of the process by which proposals were agreed, there had not been sufficient time to have the written document circulated to all the members of the commission.
However, some commissioners pressed for copies of the document to be made available if they were to make an informed comment and decision.
Responding to requests for copies of the document, Ramkarran explained that the commitments of the secretariat would have made it impossible to circulate the document before tomorrow. However, photocopies of the document were made available during the meeting and it was agreed that the subject would be raised again tomorrow.
Apart from this "storm", the commission after exhaustive and intense discussions agreed to make recommendations for the establishment of a Race Relations Commission, an Elections Commission, and for ensuring the independence of the Office of the Auditor General.
Race Relations Commission
When it discussed the proposals for the establishment of a Race Relations Commission which was the subject of a paper presented by the commission, it was assisted in its decision-making by its three local legal experts, Professors Keith Massiah SC, Rudolph James and Harold Lutchman, the Vice Chancellor of the University of Guyana.
The contentious issue was whether or not such a commission should be burdened with having to investigate and adjudicate allegations of racial incitement made against political parties or organisations or individuals speaking on their behalf, as proposed in the paper.
The experts led by Massiah, felt that it was too onerous a burden for a commission comprising laymen, and felt that this should be best left to a tribunal. However, they eventually agreed on a process, the details of which are to be worked out by the legal experts, in which the commission would receive the complaints, which it would then pass to a tribunal for a determination as to whether there was a prima facie case to answer and if so, to refer the complaint to the Court of Appeal for a decision.
One of the measures proposed in the paper includes constitutional provisions prohibiting all individuals and institutions, and specifically political parties, from indulging in any action or being proselytisers of any ideas, programmes, or employment practices in which there are inherent elements of racial and ethnic divisiveness. In addition, the right to the freedom of speech, thought or association should not be used as justification or protection from penalties for so doing.
Another measure would disbar a political party or organisation or individual purporting to speak on its behalf from contesting any election if it is proven that it had breached the constitutional provisions prohibiting racial incitement.
It is proposed that the Race Relations Commission would sponsor studies monitoring whether race relations were improving, and would recommend to Parliament measures for achieving improvements in race relations.
The proposals also would have enshrined in the constitution the principle that curricula in all educational institutions should contain components involving the teaching of comparative religion and co-operation among disparate groups in a plural society.
The proposal for the principles for the establishment of the Elections Commission were hammered out in discussions between Deryck Bernard, one of the three representatives of the People's National Congress on the commission and Reepu Daman Persaud, one of the five representatives of the People's Progressive Party (PPP)/Civic.
A number of the proposals were non-contentious and were unanimously approved. These included, among others, the establishment of a permanent Elections Commission Secretariat, the appointment of the head and other senior staff of the secretariat in accordance with specified criteria, and the reform of the system so that the political parties would have confidence in the results of its work.
However, the proposal that the chairman of the Elections Commission should be full-time and selected by a consensual process as provided for in the Constitutional (Amendment) Act 1995, was opposed on technical grounds by Haslyn Parris. He explained that the difficulties which were inherent in the so-called Carter Center formula could cause gridlock and as such could not support it.
The vote by the commission was inconclusive on the proposal to confine the role of the political parties and their nominees in the conduct of elections through the Elections Commission to monitoring and policy, and to exclude them from active management of the process. So too was the vote on an amendment proposed by Miles Fitzpatrick which would have made explicit that the final responsibility for the appointment of the elections staff would be that of the professional staff of the Secretariat.
He was not persuaded by the argument put forward by Persaud that the practice of having the political parties involved in the final decision on the appointment of polling day officials was justified because of the large number of political activists from the major parties who were qualified to be appointed to these positions.
The Commission decided that it would include the details of its vote on both proposals and leave it to the National Assembly to choose between them.
With regard to the proposals for the establishment of a local government system a decision on which had earlier been deferred to Friday's meeting, the commission unanimously approved the principles it would recommend for inclusion in the constitution.
These principles were developed by Vincent Alexander, another of the PNC's representatives on the commission, who led the discussion on this topic after extensive discussions with Persaud.
The principles called for the constitution to spell out clearly that local government bodies should be autonomous, that the Auditor General should audit their accounts, that legislation should be provided for formulating the criteria by which resources would be allocated to, and garnered by local authorities, that the lower tier of local government would be represented at the tier immediately above, and that the local government electoral system below the regional level should be built upon the pillars of representativeness, proportionality and accountability to the electorate.
The principles also called for the constitution to provide for the electoral system, at the levels of the local government below the Regions, to provide for the involvement of individuals and voluntary groups in addition to political parties, and provide too for Parliament to establish a Local Government Commission which would be empowered with staffing, regulatory and dispute resolution functions.
The constitution would also be required to specify, according to the Alexander/Persaud principles, that Parliament should provide for the establishment of village/community councils and that at the behest of the peoples of these communities those councils would be activated as quasi-local government bodies.
The proposals for ensuring the independence of the Office of the Auditor General were also the subject of extensive debate which resulted in an agreement to recommend that the Auditor General should not be included as an adviser to the Cabinet Sub-Committee on Finance as provided for at Article 118 (2) of the constitution. They agreed too that Article 223(4) of the constitution should be amended to provide that the Office of the Auditor General should be supplied with adequate resources to discharge its functions, and that the Auditor General should report directly to the National Assembly. The present provision allows for the report to be transmitted to Parliament through the Minister of Finance.
It was also agreed that a recommendation would be made that the Office of the Auditor General be funded by an independent budget approved by a special mechanism designed by Parliament, and that the Office should be free from operational interference from the government.
The discussions were inconclusive on the proposal to have the staff of the Auditor General removed from the control of the Public Service Commission and placed under the control of a proposed Audit Commission.
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