Constitutional Reform Commission Report handed over
July 18, 1999
The Constitutional Reform Commission yesterday handed over its report to the chairman of the Select Committee on Constitutional Reform at a brief ceremony in Parliament Chambers.
The report was handed over by Commission Chairman Ralph Ramkarran SC, together with Jean La Rose and Haslyn Parris CCH, Vice-Chairman and Secretary respectively of the Commission, to Parliamentary Affairs Minister, Reepu Daman Persaud, the Chairman of the Select Committee.
The nine-chapter report dealt with the background to the appointment of the Commission, the issues it had considered as mandated by the legislation which established it, and others which had been raised in the public hearings.
The recommendations, Ramkarran told the small gathering which witnessed the handing over, had been arrived at after intense, lively and vigorous debate among the twenty members of the Commission.
He observed that the recommendations were profound and wide ranging "and represent the desire of the Guyanese people expressed for the first time in public hearings, written submissions, and submissions to the Select Committee on Constitutional Reform [of the Sixth Parliament] and through their political parties and civic organisations.
"The Commission believes that if the National Assembly accepts the Commission's recommendations the rights and security of every Guyanese will be immeasurably enhanced."
Persaud in accepting the report noted that it was an historic occasion and said that the work of the Commission had demonstrated that if Guyanese came together there would be no need for outside assistance in settling our differences.
Among the issues on which the Commission made recommendations were the Presidency, the Parliament, the Electoral System, the Commissions and the Judiciary.
On the Presidency, the Commission said that its recommendation had been informed by the need for the attenuation of the wide range of powers given to the President by the Constitution. As a consequence, it recommended, by a majority vote, that Article 90 should be amended to provide that the President should be a Guyanese either born in Guyana or of Guyanese parentage. Also, it recommended a further amendment of the article to provide that no person should hold the office of President for more than two terms and that the two terms should be consecutive.
The Commission also recommended, by consensus, amendments to Articles 106, 107, and 120 which would provide that the Cabinet, including the President, should be responsible to the Parliament; the Cabinet including the President, should resign if defeated on a motion of confidence by a simple majority of all its members; the President should designate a Minister or Parliamentary Secretary to be accountable to the Parliament for those subjects and departments for which the President had retained responsibility; and that the approval of the National Assembly would be required for the expenditure chargeable to the Consolidated Fund related to offices created by the President.
The Commission also recommended, again by consensus, that Article 128, which deals with the appointment of judges, should be amended to make the exercise of presidential power subject to the advice of the Judicial Service Commission.
With regard to Article 197, it also unanimously recommended that the extension of the tenure of a judge should be done only on the basis of the advice tendered by the Judicial Service Commission.
To ensure the powers of the presidency were limited in these areas, the Commission unanimously recommended that Article 231 be deleted from the Constitution.
Article 231 provides that where the President or any other person or authority is required to perform any function in accordance with the advice or recommendation of, or after consultation with or concurrence with another person or authority, the fact of whether such advice or recommendation was received, whether such consultation or concurrence has taken place, shall not be enquired into in any court of law.
Also, by consensus, it recommended that Article 170 paragraph (5) should be amended to provide that the power of the President to dissolve Parliament under this article should be removed. Further, that where the President refused to give his/her assent to a Bill in accordance with paragraph (5), the Bill should stand assented to after a specified period of time.
Another consensus recommendation on the presidency related to Articles 179 and 180 which deal with the removal of the President for violation of the Constitution or on grounds of incapacity. The report proposed that the procedures should ensure that a substantial majority of the National Assembly should be required to impeach the President on the findings of an independent Tribunal, but that they should not require such extremely weighted majorities as to make the prospect of impeachment unattainable.
With regard to the powers of the President under Article 225 which pertains to the procedure for the removal from office of certain persons, the Commission recommended that the article be amended to provide that the appointment of a Tribunal under this should only be done on the basis of the advice tendered by the Judicial Service Commission.
The Commission also recommended by a majority vote that Article 232(7) should be amended to abolish the power of the President to remove any public officer in the public interest. The Commission also recommended by consensus that wherever the word "consultation" was used in relation to decision-making by the President, that word should be replaced by the phrase "meaningful consultation."
With regard to the Parliament the Commission noted that the basis for its recommendations was to enlarge the responsibilities of the Assembly and the scope of Parliamentarians by the activation of the Standing Committee system. "A strong Standing Committee system would enable Parliament to exert a measure of influence and control over the Executive, thereby also familiarising the Parliamentarians more intimately with the functions of Government."
The Commission felt too that "a second chamber, in the particular circumstances of Guyana would provide the opportunity for the consideration of national issues away from the hothouse of an adversarial political lower chamber. The Senate or Upper House could serve another useful purpose to provide a vetting mechanism for appointments to constitutional offices in a more purely deliberative environment."
There were reservations "expressed on the Commission to the effect that it would be undesirable to have non-elected members of an upper house being placed in a position where they might obstruct the decisions of the elected representatives of the lower house."
By consensus the Commission recommended the establishment of four Sector Standing Committees of the National Assembly which would have responsibility for the scrutiny of all areas of Government policy and administration. The Standing Committees recommended were Natural Resources, Economic Services, Foreign Relations and Social Services. It also recommended that "the Chairperson and Deputy Chairperson shall come from opposite sides of the House."
The Commission also recommended by a majority vote that the Parliament should consider the option of establishing an Upper House consisting of representatives of each Region and civil society. Such a second chamber, it suggested, should have its power carefully defined so that it would not be able to frustrate the will of the elected Lower House, and would be prevented from initiating money Bills or Bills aimed at altering the Constitution.
With regard to the electoral system, the Commission said that its recommendations were designed to help the electoral system conform to the principles of an inclusionary democracy.
It recommended by unanimous vote that the electoral system for general elections should be a system of proportional representation which ensured that the proportion of seats in Parliament achieved by each party was as close as possible to the proportion of votes it received from the electorate.
By a majority vote of 19 to 1, it recommended that the electoral system should include an element of geographical representation. And by a similar vote, it also proposed that limits be placed on the numbers of non-elected Ministers and Parliamentary Secretaries eligible to sit in Parliament.
By a majority vote too, this 12 to 0, with 8 abstentions, the Commission recommended that the proportional representation lists should be presented to the electorate in a manner that allowed voters to be sure which individuals they were electing to the National Assembly. The Commission said that it was its view that "this principle would be breached if lists are presented simply in alphabetical order or if crossing the floor is permitted."
Again, by a majority vote of 19-1 with 1 abstention, the Commission recommended that only Guyanese citizens resident in Guyana should be permitted to vote in elections.
Leader of the Opposition
Again by consensus, the Commission voted to recommend that the words "Leader of the Opposition" should be substituted for the words "Minority Leader" wherever they appeared.
In another majority vote, this time 14-0 with 5 abstentions, the Commission recommended that provision should be made for the appointment of the Minority Leader (to be re-designated Leader of the Opposition) to be made in the following manner: "the Leader of the Opposition shall be elected by and from Members of the National Assembly who do not support the Government at a meeting held under the Chairmanship of the Speaker, who shall not vote."
On the matter of commissions, the Commission explained that it had received submissions recommending the establishment of 36 commissions. The Commissions it was recommending, however, were those on Human Rights, Ethnic Relations, Women and Gender Equality, Children's Rights and Indigenous Peoples.
It also recommended that the Parliament should consider establishing a mechanism to monitor the distribution of land and house lots so as to ensure that the distribution was being done in accordance with the rules approved by the National Assembly as well as provide redress where these rules had been breached.
It said that in recommending commissions to be established at the level of the Constitution, its choice was based on whether the matter with which the particular commission would deal was of national interest, affected a wide enough cross-section of the populace, involved a concern about the danger of political interference, and a possibility that if the matter were not monitored, there could be disastrous consequences to the society and country at large.
Also, the Commission noted that given the problems of human and financial resources that must attend any increase in the number of commissions at the level of the Constitution, that the administrative principles of keeping the commissions small and staffed by persons of experience and the provision of common secretariats for Commissions of a protective nature (as a opposed to those of an appointive nature) should be carefully considered for application.
Also that where Commissions were to be established that the mechanism for choosing their membership should be designed to minimise undue political influence by the executive and the consequent public perception of partisanship in their functioning. The Commission also recommended that the right of appeal with respect to the commissions' decision should be expressly stated as should the obligation of public disclosure of information in possession of the particular commission with respect to the matter under appeal.
Where the Judiciary was concerned, the Commission explained that the "the Judiciary is the citizens' chief protector against oppression or mistreatment by the State. It must therefore be, and be seen to be, as free as humanly possible from Executive pressure and influence." It noted that "while it is true that independence of spirit is an individual quality, the administrative structures of the judicial system should reflect and sustain its independence. Thus, for example, the Judiciary should not be in a position where it has to negotiate or make representation continually to the Executive concerning the emoluments of judges and their staff or other administrative matters."
It noted too that the Registrar of the High Court, who is its Chief Administrative Officer, currently relates on staffing matters not to the Chief Justice, but to the Public Service Minister.
"This reliance of the judicial administration on the Public Service Ministry does not enhance the prospects of achieving maximum judicial independence. The appointment and promotion of judges should be seen to be free of party political influence."
The report went on to say that "the appointment of a judge should not be placed on an equal footing with the appointment of say, a Minister of Finance or of Home Affairs. The appointment of a judge should be a matter not for political party consideration but for consideration of an independent Commission."
By consensus the Commission recommended that the Judicial system should be independent and free from official influence and control; the appointment and promotion of Judges should be removed, as far as possible, from all party control; the Judicial system should be administratively autonomous and should be funded by a block vote out of the Consolidated Fund; and that the system should be operated in accordance with the practices of sound financial and administrative management by such rules and regulations as approved by Parliament.
The Commission also recommended by consensus that the appointment of all judges should be in accordance with the advice of the Judicial Service Commission (JSC) and Article 128 should be strengthened to ensure that the President appointed the person or persons recommended by the JSC. The same rule would apply in the appointment of a Tribunal under Article 225 and the Article should be amended accordingly.
Also by consensus, the Commission recommended that the Chancellor and Chief Justice should be appointed through a consensual mechanism and that the extension of the tenure of a judge should also be done in accordance with the advice tendered by the JSC.
The Commission also recommended that Parliament should give consideration to providing for a time within which judges should give their decisions. Persistent failure to do so should constitute misbehaviour for the purpose of Article 197(3) and that this article should amended to include a more detailed description of "misbehaviour".
It recommended too that provision should be made for Guyana to accede to the Caribbean Court of Appeal as well as for part-time judges and for the Constitution to be amended to provide for the retirement of a Puisne Judge at the age of 65 years and a Justice of Appeal at the age of 68 years, without an extension of service in both cases. It stated that the provision should apply only to judges appointed after the Constitution had been amended. It also noted that it was undesirable for retired judges to practise at the Bar, and consequently due consideration had to be given to raising the level of their emoluments and pensions.
By a majority vote of 17-1, the Commission voted to recommend that the Constitution should provide that the Judicial Service Commission, in addition to its present responsibilities, and not the Public Service Commission, be responsible for the appointment of the Registrar and any professional officers of the Supreme Court Staff.
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