THE ERC IS LEGAL UNTIL DEEMED OTHERWISE

Apr 28, 2011 Features / Columnists, Peeping Tom

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Having an Ethnic Relations Commission is a positive feature of Guyana’s constitutional development process. Every country, regardless of its ethnic makeup, needs such a constitutional commission so as to guard against ethnic prejudice, discrimination and conflict.
Every country with an Ethnic Relations Commission also needs to have the commission enjoy wide acceptance. Unfortunately, the main opposition in Guyana has refused to acknowledge the legitimacy of the Ethnic Relations Commission and has failed to support measures to ensure the wider acceptance of this body.
The opposition has indicated that this had to do with the government attempting to manage the process of selecting the commissioner by including an inter-religious body as part of the consultation process. The opposition’s argument is that the respective bodies which already form part of the inter-religious grouping are already represented in the consultative mechanism and therefore this attempt by the government is aimed at foisting its choice on the body.
The opposition will no doubt also argue that it is opposed to the manner in which the ERC mandate was renewed. This is highly unfortunate for a number of reasons. There is no reason why a compromise could not have been reached. Whatever issues the opposition may have had with the ERC, the body should be judged by the work it has been doing, and as was reported in yesterday’s newspapers by the quality of the decision its makes in relation to complaints made to it.
The ERC is a legal body and remains a legal body until such time as a Court of Law pronounces that it is illegal. Until such time, its rulings must be taken seriously even though anyone has a right to disagree with its findings and to either appeal those findings or to seek judicial review of these decisions.
The ERC recently pronounced on a number of cases brought before it, including as reported in the online edition of the Stabroek News, a case involving an article and letters published by the dailies.
The ERC has made its ruling on these and other matters, including statements made by the President and statements made by the main opposition.
The ERC is still very much in its early stages of development and therefore should be given the opportunity to develop a body of rules and principles that would serve as a guide for determining what constitutes incitement, racial discrimination etc. In the circumstances a number of recommendations can be made which it is hoped the ERC will take seriously.
Firstly, the ERC should detail for the general public its rules of procedure. There is a need for the public to know just what are the procedures involved in filing a complaint against someone. This is all the more so since it was reported in the Stabroek News that when it asked for details of the complaint made against it, the ERC requested this from the complainant but this was not provided.
This should have been the end of the matter since if the details of the complaint are not provided, the absence robs the defending party of the opportunity to respond adequately. The ERC should not make a pronouncement on any matter in which such details have not been provided.
Secondly, the ERC needs to provide rules for hearings. Every accused person should be afforded a hearing consistent with the principles of natural justice. It was reported that the ERC did write to the newspapers requesting their response but this in itself should not deny any defendant the right from being given a formal hearing before the tribunal hearing the complaint.
It is significant that the ERC has begun to discuss cases concerning incitement. It would be fruitful and certainly will serve as guide for the media in Guyana, if the ERC can make available the judicial principles by which it made determination of either incitement or lack of incitement.
It would be extremely helpful to all media houses if they have a full opportunity to scrutinize the principles by which the ERC determines incitement. What constitutes incitement and what determines when a publication can cause ill-will?
The ERC has reportedly made some statements about race-based politics. What does the ERC mean by race-based politics? There is a difference between race and racism; there is a difference between something being race-based and something promoting discrimination based on race. An organisation can be race-based in terms of its interests and membership but need not necessarily be racist or seek to promote racial discrimination.
So what exactly does the ERC mean when it says race-based politics? Is it saying that minorities cannot organise their own political parties? Is it saying ethnic parties are not permissible?
These are just some of the issues which the ERC should make public because it will help not just in enhancing the credibility of the ERC but also in leading to a clearer understanding of the judicial principles that underlie much of the issues that are contentious within our society.

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