THE UNCONSTITUTIONAL ETHNIC RELATIONS COMMISSION

Jul 18, 2010 APNU Column, Features / Columnists

The Ethnic Relations Commission (ERC) has studiously avoided the issue of its unconstitutionality in its emotional and unprofessional response, through one of its hirelings, to the essential issues raised by the PNCR in its Press Statement, of Friday 9 July 2010.

Bishop Juan Edghill, however, needs to be put on notice that erratic statements will not silence the People’s National Congress Reform that also has a constitutional responsibility to represent its constituency, which is by far significantly larger than his three-member commission.

THE PNCR STATEMENT

The main thrust of the PNCR statement was directed at the Bharrat Jagdeo administration for being ludicrous, in forwarding a matter to the ERC in the context of the misuse of the State-owned media, by the PPP and the Government, for the dissemination of misinformation and libelous publications, and their failure to address the priority issue of the unconstitutionality of the ERC.

The final two paragraphs of the Statement also warned that partisan behaviour by the ERC, as illustrated by two examples presented in that Press Statement, has ensured the non achievement of the noble objectives envisioned for the ERC by the framers of the Constitution.

Any rational person would have been more concerned with the Constitutionality of the body he heads, especially since the efficacy of such a body is dependent upon public confidence in its work.

RESOLUTION NO. 36 OF 2007

The position of the PNCR on this matter is not new. The concerns of the Party were effectively stated in the National Assembly of the Parliament, since 2007, when the PPP, in clear violation of the Constitution, used its majority to pass Resolution #36, entitled “Appointment of Members of the Ethnic Relations Commission”, dated 9 August 2007, which stated, inter alia, “That the National Assembly calls on the President to take such steps so as to enable the Ethnic Relations Commission to continue to carry out its constitutional responsibilities in the interim.”

The Opposition members voted against this resolution, which was in contravention of the provisions of Articles 212B (1) (a) and (b) that confers no such authority to the President.

Article 212B specifies, inter alia, that the ERC shall consist of,

“(a)not less than five and not more than fifteen members nominated by entities, by a consensual mechanism determined by the National Assembly, including entities, representative of religious bodies, the labour movement, the private business sector, youth and women, after the entities are determined by the votes of not less than two-thirds of all elected members of the National Assembly;”

THE CONSENSUAL MECHANISM

The entities that were agreed upon, to be consulted through the consensual mechanism, were unanimously approved by the National Assembly several years ago.

The entities subsequently elected their representatives who constituted the first Commission. Among the representatives were three from religious bodies, (Christian, Hindu, and Muslim). Bishop Edghill was the representative of the Christian community and he was subsequently elected Chairman.

Both the life of the Commission and the tenure of the Office of the Chairman came to an end in 2007.

On the expiry of the life of the Commission and Commissioners, all the entities were constitutionally obligated, using the process stipulated by the consensual mechanism, to either identify their new representatives or determine if the current representatives should continue.

This process was, however, stymied when the PPP sought to subvert it by arbitrarily adding another specially created religious entity, the IRO, to the already identified list of entities to elect representatives to the ERC.

At the same time, the PPP demonstrated its marked reluctance to agree to the inclusion of others entities, such as professional organisations, as advocated by the PNCR.

The PNCR pointed out that the IRO represented a duplication of religious bodies that were already included within the bodies representing the Christian, Hindu and Muslim communities. Therefore, this would result in double representation.

PPP’S OBSESSION WITH THE BISHOP

It became obvious that the PPP’s obsession with the inclusion of this new entity, the IRO, was directly related to its desire to maintain Bishop Juan Edghill’s membership on that Commission.

He was one of the main activists of this conveniently created new entity. Therefore, a new opportunity was being prepared for him to remain on the Commission, should the Christian community not renew his mandate. The PPP, fortunately, could not unilaterally impose their amendments as they have done on so many occasions in the past, because the change required a two-thirds vote in the National Assembly.

Instead of finding a compromise or proceeding with the already approved entities, it opted to stymie the process for the reconstitution of the ERC and used the opportunity to present the Motion, which it later passed by a simple majority in the National Assembly, to invite the President, contrary to the Constitutional stipulations, to intervene in the process.

NO AUTHORITY CONFERRED ON PRESIDENT

In its Press Statement, of Friday 16 November 2007, the PNCR stated that:

“This procedure (identified in the motion dated August 9, 2007) was transparently unconstitutional, since the Constitution does not confer any such authority on the President.

The PNCR wishes to make it clear that the ERC is a Constitutional body which is governed by Article 212B, which states clearly how the ERC is to be constituted and which Groups of Entities should be invited to elect a substantive and alternate representative for appointment to the Commission. The only Constitutional role for the President, in the above process, is to appoint the elected Commissioners representing the Christian Religion, the Hindu Religion, the Muslim Religion, the Trades Unions, the Private Sector Organisations, Youth Organisations and Women Organisations.

In light of the foregoing, the PNCR wishes to make it clear that the ERC, as presently constituted, is illegal and would not be recognized by the Party.”

Mr Juan Edghill, obviously out of self interest, has both facilitated and publicly defended this unconstitutionality. Article 212D (x) lists as one of the functions of the Commission to, “do all acts and things as may be necessary to facilitate the efficient discharge of the functions of the Commission”. In this context, it is difficult to find any Act by the Commission to remove this cloud of unconstitutionality that has impeded the efficient discharge of its functions.

LEGALITY OF DECISIONS BY THREE-MEMBER COMMISSION

The public needs to be also advised that most of the original representatives and their alternates on the seven-member ERC have, for varying reasons, ceased to be active members of the Commission placing in doubt the legitimacy of purported decisions of the now dwindled three-person Commission, even if, as argued by its Chairman, the body is constitutional.

CREATURE OF THE PRESIDENT NOT STATUTE

The call for evidence by Mr. Edghill is surprising since his very appointment by President Jagdeo, in violation of the Constitution, makes him a creature of the President, and not the Constitution, thus placing his impartiality in doubt.

Mr Edghill also seeks shelter from the PNCR’s assertion of the disparity in his activism, by claiming that no reports on some matters were made to the Commission.

This is either an obvious attempt at deception or a lack of knowledge of the functions of the Commission provided for in Article 212D (p) which enables the Commission, “to investigate on its own accord or on request from the National Assembly or any other body any issues affecting ethnic relations.”

Mr. Edghill may also wish to explain why he moved with such activism to deal with alleged discrimination at a store in Regent Street but failed to take any action or even visit Kwakwani when serious allegations of a similar nature were made by bauxite workers.

He may also wish to explain to the public why he failed to take action, of his own accord, with respect to the blatant abuses of privilege, by the state-owned media, which could damage ethnic relations.

The fact that after six years the PNCR’s Court action challenging the constitutionality of the Integrity Commission has not yet been heard by the High Court, has been one factor which influenced the Party not to institute another similar action with respect of the ERC.

The Party has, however, recently made some further proposals to the Appointive Committee of the National Assembly in the hope that good sense will prevail to bring the present unconstitutional existence of the ERC to an end. Mr. Edghill and his co conspirators should be put on notice that their days are numbered.