Room still there for Commission of Inquiry to go ahead -GHRA
June 3, 2004
THE Guyana Human Rights Association (GHRA) said the outright rejection of the Presidential Commission of Inquiry by the Opposition is not justified despite its procedural deficiencies.
“The difficulty with ‘in principle’ objections is that they are non-negotiable. Since the main opposition demand has been met in the TOR and the proposed membership cannot be labelled as hostile, refusal to negotiate requires a more convincing explanation than has been forthcoming so far,” the GHRA said in a statement received by Kaieteur News yesterday.
The GHRA said given the relatively high level involvement which now seems routinely expected of the diplomatic community to sustain civilised relations between the two major political parties, it is hoped that their good offices are used in this instance to urge both parties not to sacrifice the national interest to partisan pursuits.
The GHRA believes the extent to which President Bharrat Jagdeo has publicly defended Home Affairs Minister Ronald Gajraj is inappropriate and must stop: “Serious criminal charges must be openly confronted and dealt with, not defended by a President of the Republic pledged to uphold the rule of law.”
GHRA said, on the other hand, having obtained a substantial break-through, it is irresponsible of the opposition to elevate procedural considerations over substance.
It said if this posture continues it will revive widely-held suspicions their commitment to democratic processes is subordinate to a determination to sustain a climate of political uncertainty.
The GHRA recalled that it had originally backed the idea of a Commission seeking to bring closure to violence - something akin to a Truth Commission - and still believes this to be necessary.
It noted, however, the political realities are such that Guyanese cannot yet confidently affirm that the violence confronting the society is a thing of the past.
Having analysed the proposal made by President Jagdeo, the Executive Committee of the GHRA believes they provide the basis for negotiating an acceptable Commission and calls on all organisations to adopt a similar approach.
The GHRA said outright rejection of the proposed Commission of Enquiry has overshadowed the significance of what was proposed.
It pointed out that a Presidential Commission to enquire into criminal allegations of the involvement of the Minister of Home Affairs in extra-judicial executions (EJEs) and ‘death squads’ in his official – not private - capacity, is highly unusual and will attract considerable international interest.
“No matter how confident the Government is that Minister Gajraj will emerge unscathed, revelations before any Commission can develop a momentum that forces the hand of even the most recalcitrant Commissioner,” the release states.
The GHRA described the Commission of Inquiry as a hybrid – it involves charges of a criminal nature along with those of ministerial abuse of power and failure to follow legal obligations.
It said if Minister Gajraj has been involved in promoting EJEs, this is clearly a criminal charge and should presumably have been brought to a court of law, rather than a public enquiry.
It pointed out that the Government’s initial response to the allegations reinforces this conclusion, namely, that those with evidence should go to the police.
It said this avenue was partially closed off by the Police Commissioner Winston Felix who pointed out that since the Police Force was implicated in the allegations they were not the appropriate agency to be responsible for the investigation. Moreover, claims about inadequacy of witness protection were also advanced as an obstacle to normal criminal procedures.
The GHRA noted that another complex feature of the case is that a Minister of Government is being investigated for criminal or near-criminal behaviour directly tied into his Ministerial responsibilities, not in his private capacity.
Any comparative international experience of such a case would be extremely helpful, it said. How the enquiry is going to protect the Minister’s individual rights to fair trial and due process, while getting at the truth of institutional failures and his personal responsibility for those failures, need to be carefully analysed, it added.
It has been suggested that some elements of an impeachment process might be more appropriate to address dereliction of duty.
The GHRA declared that the possibility of a broader Terms of Reference was over-shadowed by the dramatic statement of George Bacchus alleging involvement of the Minister of Home Affairs personally in ‘death squad’ activity.
This led to the Minister being the focus of attention from that point onwards.
The GHRA said a broader Terms of Reference, the preference of opposition parties WPA and ROAR, was adopted late in the day by the alliance of political parties, but generated little momentum and came too late.
The GHRA stated that in light of the poor record of cooperation by the two major political parties, it is illusory to believe that a Commission of Inquiry of the highest standards on such a contentious issue was feasible. “Both parties must accept some responsibility for this: the Government should have acted on the available evidence without the need for a Commission and the major opposition party needs to stop giving the impression every issue is an opportunity for creating a crisis,” the GHRA contended. The GHRA said the unpredictability of the PNC/R’s presence in Parliament weakens calls for a Parliamentary, as opposed to a Presidential Commission.
The risk of a Parliamentary Commission becoming hostage to the long-running inter-party feuds cannot be dismissed, it pointed out.
The GHRA said it would have preferred a Commission emerging from Parliamentary consultations, but would feel more confident making that demand if the commitment to parliamentary democracy of both the PPP/C and the PNC/R were unequivocal.
The GHRA further said even if that were not an issue, events leading up to the proposed Commission poisoned the possibilities of constructive consultation.
The GHRA noted that on that occasion, the PNC/R chose members according to competence and the Government appointed hard-liners to protect party interests. The result was a Commission unable to deal with contentious issues.
Ironically, the GHRA said, in the circumstances, despite prima facie arguments for bias, the fact of the President being personally responsible for selection of members, increased the pressure to appear impartial and has produced better results.
The GHRA said while it normally encourages consultation in as many areas as possible, it is counter-productive to peremptorily resist acceptable results because the process is deficient in consultation.
This is particularly the case when a climate conducive to constructive consultation does not exist, it stated.
“Complete rejection of the adopted procedure would have been acceptable if they were illegal or irregular, which is not the case.”
With respect to the selection of the members of the Commission, the GHRA consulted the UN Principles of Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (Art. 11) which sets out four tests for the credibility of Commission members.
These are :i. “impartiality, competence and independence as individuals.”