Participation requirements of Article 13 still to be explored
Inclusive governance is about consulting people - Parris
Current Affairs July 2004
Stabroek News
July 21, 2004
On July 9, President Bharrat Jagdeo addressing the launching of the Roraima Residence Inn expressed his intention to locate the dialogue between himself and the Leader of the Opposition in the National Assembly. The dialogue between the President and the Leader of the Opposition traditionally took place outside of the National Assembly.
The move, in the view of several political observers, brings in to sharp focus the question of inclusivity given that "people issues" in the context of the economic and social development of the country will now be the focus of the President, who will be open to engage anyone including the PNCR desirous of working with him to move the country forward.
Jagdeo said, "I'm fed up with people who are gripers. They can gripe as much as they want but they're not going to have an audience with me. I'm going to pay less attention to politics...I'm just getting tired of being sucked into an approach which is convenient for some people...every single day...an approach that emphasises or seems to want to fight elections every single day.
" I'm not going to do that. As I said before, you know my position on this...the opposition in parliament...I said the government did not force the opposition out. I'm not gonna be begging anyone to go back into parliament...whenever they're ready, they'll go back, they'll find their way into parliament. And that's the approach in many other areas that I'm going to take."
"So frankly speaking to tell you, I'm not too interested in dialogue between myself and the leader of the opposition anymore. That should take place at the level of parliament because too often that's held hostage and what happens is there is a lot of distortions that takes place in what goes on in those meetings that we have. So let it take place within the full purview of the public..."
"So, I welcome dialogue, but let it be shifted over there...my government will focus on the social problems in the country."
It is the first statement the President has made which backs into a response to the proposal by Leader of the Opposition Robert Corbin's proposal for the involvement of all the parliamentary parties in discussions on issues of national importance rather than the bilateral engagement between himself and the President which has been less than successful. Corbin's proposal was made in May.
Observers say that Jagdeo's response does not bode well for inclusivity for it presupposes that one would have to buy into the vision of the President if engagement with him is to be possible. That, they say, is inclusivity on the President's terms rather on clearly defined principled and objective conditions.
Haslyn Parris, a former PNC deputy prime minister and secretary to the Constitution Reform Commission points out that dialogue between the President and the Leader of the Opposition can only take place in the National Assembly if the President participates by proxy, since the President is not normally present for debates in the National Assembly.
Parris also questions whether "people issues" will only "now" be the focus of the President; and wonders what he thought he was talking about with Corbin during their dialogue? Was it "politics" which he defines to be different from "people issues"?
In relation to the President's remarks about gripers Parris notes that governance in a democracy is about considering people's current and emerging "gripes"; and inclusive governance is about consulting individual people, and their political and civic representatives, about how best to resolve the issues on which their gripes are based. "This is what politics is supposed to be about - not simply fighting elections to decide who will govern or who will be President!"
Article 13
Arguments were put forward for the implementation of Article 13 of the constitution. Article 13 states:
"The principal objective of the political system of the State is to establish an inclusionary democracy by providing increasing opportunities for the participation of the citizens and their organisations in the management and decision-making processes of the State, with particular emphasis on those areas of decision-making that directly affect their well-being."
The Caricom Charter of Civil Society, though declaratory and non-binding, which has been adopted by Guyana, also reinforces the need for the government to genuinely consult the Social Partners "to reach common understandings on and support for the objectives, content and implementation of national economic and social programmes and their respective roles and responsibility in good governance."
However, the problem is the absence of any guidance from the Constitution Reform Commission and the Select Committee of the National Assembly that translated its recommendations into legislative form as to what mechanisms or procedures could be put in place to give effect to Article 13. One hurdle, observers say, is divining what was intended by the use of the term "inclusionary democracy" in the context of the constitutional arrangements currently in operation and which are essentially of an adversarial nature. They say that it is obviously a task to be tackled later and that it might be even assumed that the implications of enacting such a provision may not have been fully appreciated and consideration may not even have been given to the possible mechanisms and procedures which might be instituted in order to give meaningful effect to Article 13.
Bryn Pollard, one of the architects of the 1966 constitution and a keen observer of efforts at constitutional reform, in an invited comment to the Current Affairs says that differing views are emerging on the subject.
Current Affairs notes that both the PPP and the PNCR have declared their positions on "Inclusive Governance" - the PPP's term and "Shared Governance" - the PNCR's term. Observers say there is yet to be any organised examination of the two positions with a view of arriving at a national consensus on the way forward. Others argue that the amendments that were made to the constitution provide significant opportunities for inclusivity and every attempt should be made to give the mechanisms in place a chance to work.
As an example of the differing views Pollard points to a view expressed by Cabinet Secretary Dr Roger Luncheon, at one of his press briefings, concerning the appointment of The United Force Leader, Manzoor Nadir as a member of the Cabinet, he says that Dr Roger Luncheon expressed the opinion that Nadir's appointment is an example of the manner in which Article 13 can be implemented thereby providing for inclusivity in the governance of the nation. But, he says, "The appointment of Mr Nadir as a Minister of the Government, however, raises, in my opinion important issues in the context of the Constitution of Guyana. These issues are presently sub judice and, therefore, I must, for the time being, refrain from commenting further on them."
Pollard observes that some contend that the composition of the membership of the parliamentary committees provides opportunities for giving effect to Article 13 but he notes that membership of those committees is generally restricted to members of the National Assembly, save for the Standing Committee on Constitutional Reform. "The novelty of Article 13 will certainly present challenges to the decision-makers in seeking to give meaningful effect to the article. The group of persons familiarly known as the Social Partners is seeking to play a role in this regard. The public will eventually judge whether or not the role of the Social Partners is meaningful with respect to issues of governance in Guyana."
He notes too in respect of the quest for the implementation of Article 13, "solutions must, however, be consonant with the constitutional provisions otherwise, constitutional amendments may be required." He points out that constitutional bodies, for example, the Service Commissions and the Elections Commissions have usually included in their membership, persons other than members or supporters of the government. "Admittedly, under the revised Constitution with the establishment of more constitutional bodies the opportunities for involvement of a wider category of persons, other than supporters of the Government, have increased." But Pollard asks if this is what was intended by the framers of Article 13.
Social partners
Others point to the experience of the Social Partners in the absence of clearly defined positions for inclusion when they sought to revive the dialogue between the President and then Leader of the Opposition, the late Desmond Hoyte and to forge a common position to addressing the crime wave that gripped the nation at the time.
First there were objections about the organisations that constituted the Social Partners and later about personalities on its delegation. Later, there was the exclusion of the Private Sector Commission (PSC) from engagements with the Office of the President because the government took offence at sentiments the President of the PSC expressed to a gathering of the donor community.
Then there is the more recent experience of the Head of the United Nations Development Programme who incurred the wrath of the President because he emphasised the need for consultation in the composition of a commission to inquire into the death squad issue. The reason for the President's wrath is that the UNDP Representative, in the opinion of the President, got involved in matters that were not in his remit!
Parris, who played a significant part in the drafting of Article 13, says that it mandates an exploratory rather than an adversarial approach to the search for solutions to people's gripes. "If the National Assembly is characterised as adversarial, then it is not a forum that will encourage exploration of ideas in the solution space; and the governing party will always win out on the basis of its majority vote!"
He points out that though the Standing Committee on Constitutional Reform makes provision for membership of knowledgeable persons from outside the National Assembly, this facility has been pointedly ignored in its present composition. "Consequently we are constrained to operate within the confines of the wisdom and vantage points of only those elected to the National Assembly by the most recent elections."
He stresses that Article 13 lays down principles that require a search for consultation protocols adequate to deal with each major issue as it arises. These protocols must be issue specific, and it should not be expected that a single protocol will handle all possible issues. "The procrustean solution of one and only one mechanism of consultation must be eschewed. The challenge of Article 13 is that we have to build up a tradition of consultation, and dispense with the paradigm of perceiving the mandate of the electorate to be one which says that the Government can do as it, in its singular wisdom, pleases until a new Government is elected."
Such an approach, he observes, may be the only way to divert politicians from perceiving every issue as a challenge to their privileged position of being in power, and therefore a challenge to the centrality of their control! Accordingly, he says, one should not expect the Constitution to specify the details of the necessary consultation protocols.
In reaction to Parris' comments an observer close to the PPP says that the danger in Parris' prescription is that too much time might be taken up in deciding how the protocols would be fashioned. A better approach, the observer said, would be determining what is politically feasible at this time.
Workable system
The observer concedes that there is little doubt that the present system does not work and what has to be a priority in the present circumstances is determining where it is easiest for the parties to meet on a workable system. Such a place, he suggests, could be the circumstances is determining where it is easiest for the parties to meet on a workable system. Such a place, he suggests, could be the Standing Committee on Constitutional Reform, which is chaired by the Attorney General. He said that pressure should be brought to bear to ensure that the committee functions to consider various views from the public from which there has been many a sensible suggestion.
There have been suggestions which surface during the public hearings of the CRC that passage of the national budget should require a structured majority e.g a 2/3 majority; that to be elected President a candidate should secure 51 per cent of the votes cast, a requirement for gender and proportionality for national institutions; the introduction of a mechanism which would allow groups to declare a fundamental interest in an issue which would allow bringing into force some wide civil society considerations, allowing certain ethnic groups a special say on given issues in given circumstances and the normal call for various forms of devolution. This process, he says, could lead to some sensible ways being devised to address some of the problems which beset the society.
In relation to the obligation the Caricom Charter of Civil Liberties places on the government, some observers say that it is unlikely to induce a government to consult, which feels that the process is an unnecessary humbug. Unfortunately, the Guyana government is not alone in this attitude to consultation.
The President and his Caricom colleagues are still to agree on binding the obligation of states who like Guyana have adopted it to set up national committees which would report on their government's efforts at consultation with the social partners. The establishment of national committees is provided for by Article XXV of the Charter.
Then there is the Assembly of Caribbean Parliamentarians which is designed to bring together government and opposition parliamentarians to discuss regional issues. That too has been less than successful. On the whole the Caricom Heads have seemed less than willing to engage the opposition parties in the region, a fact that was not lost on Antigua and Barbuda's newly elected Prime Minister, Baldwin Spencer. Prime Minister Spencer in bringing his experience while in opposition with Caricom Heads to the attention of his colleagues urged them to take a proactive approach to engage the political opposition in the region.