Recommendations on fundamental rights
July 22, 1999
The recommendations of the Constitutional Reform Commission on the fundamental rights and freedoms of the individuals were made by consensus except for two, that courts be enjoined to pay due regard to international law and conventions and charters to which Guyana has acceded (would this include the provisions in the ILO convention?) and that State action intended to ameliorate the condition and status of disadvantaged (a physical disability) or historically disadvantaged (e.g. Amerindians) groups shall not be considered in derogation of the non-discrimination provisions of the constitution. These were passed by majority.
Dealing with the right to protection from discrimination, now Article l49, the Commission recommends that new grounds be added namely (a) sexual orientation, surprisingly progressive in a country that is still largely homophobic, (b) sex, (and gender, that is shown separately but is it not the same thing?) an overdue success for the women's lobby though there are other laws that give some protection on this, (c) ethnicity, in addition to race (Mr. M.L. Hackett take a bow - Mr Hackett has written numerous letters clarifying the difference between race and ethnicity), (d) marital status ( does this mean that single mothers, for example, can't be given welfare preference?) (e) physical and/or mental disability and age, young or old (have the commissioners worked out the implications of including these two categories?).
The recommendation (l) on p.l86) repeats some of the categories that already exist, for example race, but omits place of origin as a category. Is that deliberate?
Recommendation (2) is to provide the right to protection for arrested and detained persons. Does this envisage the addition of a new section along the lines of Article 35 of the South African constitution which sets out in detail the right of a person arrested to remain silent, to be brought before a court within 48 hours etc?). If so, it is a valuable addition. How would the new Article relate to the existing Article l44 - provisions to secure the protection of law? Were the commissioners satisfied with the detention provisions in Article l39 which attracted some criticism in the past?
Recommendation (3) refers to the right to just administrative action. The Commissioners probably have in mind Article 33 of the South African constitution which states that tribunals must give written reasons for their decisions which can be reviewed by a court. This would presumably include the Public Utilities Commission and other statutory tribunals.
Recommendation (4) refers to the "protection of indigenous culture and way of life, which should include language". Again the commissioners may have in mind Articles 30 and 3l of the South African constitution ( henceforth SA).
Recommendation (5) is for a right to an environment that is not harmful to health or well-being (S.A. 24). If this is enacted can the residents of Linden sue the state for the pollution they suffer from the bauxite industry?
Recommendation (6) is the right of citizens to "participate through their co-operatives, trade unions and socio-economic organisations in the State's management and decision making processes". How will participate be interpreted? Can the Private Sector Commission and the Trades Union Congress, for example, insist on being consulted on every government decision, and on the way in which it should be implemented. Is that realistic or sensible or a prescription for gridlock? This sort of right goes well beyond traditional individual human rights but is apparently intended to be enforceable.
Recommendations (7) and (8) are the rights to inheritance and to work. The former presumably means that the laws of inheritance cannot be abolished but wouldn't that be protected by the property rights clause? As for the latter, can an unemployed person sue the state and ask the judge to order that he be given a job, presumably commensurate with his skills and experience? The inclusion of this socio-economic right as an enforceable legal right is puzzling.
Other recommendations deal with the equality of rights and status of children born out of wedlock (have the commissioners thought out all the implications of this in terms of inheritance and so on?), extensive rights for children as proposed in the Convention on the Rights of the Child and the right to financial maintenance and shelter from their parents and if they can't afford it from the state (SA 28 provides a useful precedent), the entitlement to compulsory free primary education and free secondary education (can a parent sue the state if he or she is called upon to pay for text books or the upkeep of the school, as is often now the case?), the right to free primary health care, protection for children from exploitative labour practices, punishment and abusive practice and provisions for women's equality.
Recommendation (l6) proposes that the words "prompt and adequate compensation" be included in the property protection clause, now Article l42. This is a welcome and necessary amendment, it may require redrafting other parts of the clause. Recommendation (l7) is that Article 145, protection of freedom of conscience, be amended to include protection against vilification of one's religion. Would that clash with freedom of speech? Recommendation (l8) proposes that protection for freedom of expression be amended to exclude hate speech. This needs to be carefully defined or quite a few politicians will be in danger. Recommendation (l9) proposes that Article l47, the right to assembly and association, should include the right to demonstrate lawfully, (20) that trade unions and employees should have the right to conclude collective labour agreements that shall be legally binding and (2l) that the right to strike shall be enshrined subject to reasonable limitations of the law.
It is recommended that a vote of two thirds of the National Assembly be required to add a fundamental right and a majority vote in a referendum to remove one. This is a useful protection. It is also recommended that the limitations to the rights in the l980 constitution be retained and that "limitations which may be imposed on the Fundamental Rights recommended by the Commission should take account of the relative and progressive nature of such rights, including their affordability and their relevance to the socio-cultural and economic levels of development of the society". This tortuous paragraph suggests that the commissioners may be aware that some of the proposed socio-economic rights are not practical.
There are a few good things here but the overall impression is a bit of an assembly of diverse parts, take a bit here, give a bit there. Are some of the rights realistic, should they be there? The Select Committee will have to do more work on this and the draftsmen will not have an easy task. At the end of the day, as they themselves admit, it is clear the commissioners would have benefited from more time.
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