Sachs plugs constitutional court -impressed with commission's progress

By Patrick Denny
Stabroek News
July 10, 1999

South Africa's Constitutional Court Judge, Professor Albie Sachs, is impressed with the progress made by the Constitutional Reform Commission since his visit in April.

He told reporters at a press briefing yesterday at the Park Hotel, it seemed to him that the July 16 deadline which at first seemed impossible is going to be met. He said that he was impressed by the quality of the open debate during which the members of the Commission were talking to and listening to each other, in an effort to find common positions.

Sachs who first visited Guyana in April, said that on this occasion his visit was to introduce to the Commission the possibility of establishing a Constitutional Court which would deal specifically with some of the tensions and conflicts that arise in all modern states.

He said that such a court could draw its personnel from the members of the judiciary as well as from the considerable legal talent available at home and outside of Guyana.

Professor Sachs said that the constitution courts of Hong Kong, Germany, and South Africa, were indicative of the various streams from which the members of the Court could be drawn.

He also indicated that the main task of the Court would be to defend the constitution against breaches by the State. In South Africa, he said that the Court did not seek to confront the executive but once a case was brought before it, the Court did not hesitate to ajudicate. Moreover, he said that once appointed, the judges severed their ties with the political parties. He also said that the parties which included the African National Congress, had participated in formulating the constitution which set the rules of the game and they were not expected to condone any breach of the rules.

Questioned as to the process of appointing the judges to such a court, Justice Sachs said that the process should be open, transparent, and provide for balance in its composition in terms of gender and between persons practising at the Bar and on the Bench and those in academia.

Questioned about the checks on the presidency in South Africa, which like Guyana has an executive presidency, Justice Sachs said that one check was the provision of the fixed term of the parliament which took from the executive the discretion of calling snap elections and using this power to call an election at any time to keep the parliamentarians in line. This provision, he said, provided for stability and encouraged the executive to take unpopular decisions as necessary in the interest of the nation.

He said too that the president who is elected by the parliament must answer to the parliament and there are specific periods for the president to answer questions in the parliament.

Prof Sachs also noted that there was judicial control in that the exercise of the powers of the presidency was subject to judicial review to ensure that they were exercised in good faith.

Asked about the importance of public input in the constitution reform process, Prof Sachs said that it was crucial that the public should be involved in the process.

He explained that the parliament should find ways to involve the public, citing the imaginative way in which the media was used in a public education campaign which increased public awareness of the process from 30 per cent to 70 per cent in six months.

Prof Sachs observed that a referendum was not the time to inform the people about constitutional issues. He explained that ideally the constitution should be broken down into themes for discussion by the public as the whole document would be too much for them to digest at one time. The Parliament, the Bill of Rights, the Electoral System, the Structures of Government were possible themes all of which, he said, needed special attention when the public was being informed about them.

He said too that it was important that the people should be involved if they were to feel that the constitution belonged to them.

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