Defective constitution reform provisions posing problems
-attorney Ali
Stabroek News
April 17, 2002

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A member of the Guyana Bar Association (GBA) feels that the constitutional reform process has caused more problems instead of providing answers, has created incomplete provisions which require further legislation and new commissions are still to come into being.

Delivering a presentation on `A Review of the Constitutional Reform Process' at the recent GBA law conference at Le Meridien Pegasus Hotel, attorney-at-law Jamela Ali said that with the reform of the constitution the various parliamentary committees have not been appointed thereby restricting the effectiveness of parliament as a deliberative body. Also not appointed are: the Ethnic Relations Commission and Tribunal, intended to promote race relations and the Public Procurement Commission, intended to safeguard public funds. She added that the idea of a Local Government Commission "has been cast aside".

Many of the provisions, she contended, have produced lofty statements and "many unrealistic and unworkable solutions without including alternative mechanisms."

Four years after the constitutional reform process was completed at a huge cost, Ali said that there have been no new fundamental rights and "in fact, many have had their existing rights eroded." Although ten pieces of legislation have been made law, many of the draft constitutional amendments have not been enacted, she said.

With regard to the Protection and Fundamental Rights Act, Ali said that although parliament passed it and the President assented to the act "it seems rather strange that this act has not been published and is therefore not yet law."

The Constitution Amendment Act, Nos. 3 and 5 of 2001 established five new commissions for the promotion and enhancement of the fundamental rights and the rule of law but members of the commissions are still to be appointed. The commissions are for Human Rights, Women and Gender Equality, Indigenous Peoples, Rights of the Child and Public Procurement. Provision was also made for the establishment of five tribunals to which appeals from the commissions could be made. The commissions and the tribunals, she said "remain a pipe dream."

According to Ali, the constitutional provisions to remove from executive control the appointment of members of the Judicial Service Commission (JSC), has led to non-compliance and the absence of the commission. She said that a number of questions now arose from the amendment to expand the ambit of the JSC. These include the decision to bring the Director of Public Prosecutions (DPP) and Deputy Director of Public Prosecutions (DDPP) within the jurisdiction of the JSC. The DPP was appointed by the President and the DDPP by the Public Service Commission. With the present appointments, she said, it remained to be seen who would take action against these public officers. As the law stands, a DPP could now be removed by the JSC and the President upon the recommendation of a tribunal. She asked whether similar graded offices such as the Solicitor General, the Deputy Solicitor General, the State Solicitor and Deputy, the Chief Parliamentary Counsel and Deputy, were considered to be brought under the jurisdiction of the JSC as well. Alternatively, she also asked why the entire DPP's office was not brought under the jurisdiction of the JSC.

She pointed out that the amendments with regard to the appointment of members to four service commissions came into effect since August 2001 but they have still not been constituted. The four service commissions are the Public Service Commission, the Police Service Commission, the JSC and the Teaching Service Commission. The government and the opposition PNC REFORM have deadlocked over the composition and membership of various proposed committees of Parliament and this has prevented the formation of the Appointive Committee which is responsible for overseeing the selection of members of these committees.

The new "meaningful consultation" process between the President and the Leader of the Opposition seems to have created difficulties, Ali said. Legislation which states that before something could be done or someone appointed, the opposition must approve or give consent, would more likely lead to constitutional or political gridlock. Ali feels this formula amounts to power sharing and in her opinion power sharing did not produce favourable results. Although the definition of "meaningful consultation" does not make it mandatory for the President to accept the advice of the Leader of the Opposition, it does not guide the President as to his role in accepting or refusing the nominations of the Leader of the Opposition, she said. This has, she felt, presumably led to non-compliance and consequently the non-appointment of the commissioners. The GBA, she said could only speculate that the two leaders have formulated different interpretations for this definition.

The non-existence of these service commissions has serious implications for all categories of workers who come within their jurisdiction since no appointments, terminations and disciplinary action can take place lawfully.

Contending that the non-existence of these service commissions was affecting fundamental rights, she said that contrary to Article 201 (1) of the Constitution, which states that power to make appointments to public offices, to remove and take disciplinary action was vested in the Public Service Commission, the Public Service Ministry and senior government officials have assumed the functions of that body "and proceeded on a whimsical and capricious course." She adverted to recent dismissals of public officers.

On the other hand, she said, appointments were being made contrary to the constitution by way of contracts. Selected individuals were offered far higher salaries than what persons who were lawfully appointed by the PSC earn. In many instances, she said, the illegal contract method is used to circumvent the filling of vacancies in the public service and is also used to deny promotional opportunities to those highly qualified in the public service. (Miranda La Rose)