A THREAT TO ALL CONSTITUTIONAL OFFICES

Jun 03, 2012 Features / Columnists, Peeping Tom

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The Ethnic Relations Commission (ERC) is a constitutional commission. It is created by the Constitution of Guyana and therefore it is not a creature of the executive but rather an offspring of the highest statute in the land.
The said constitution provides for the appointment of Commissioners and the Chairperson of that body.  Even if the opposition feels that the manner in which the ERC is constituted and the extension of its life are  unconstitutional,  the ERC as a legal body cannot be delegitimized by withholding funding from it.
A parallel can be drawn with any public agency in the United States which because of gridlock cannot continue its work because Congress cannot agree to funds for the government as a whole. One such public embassy can be the US Embassy in Guyana.
There have been times when financing for the work of all government departments in the United States was threatened because agreement was not being reached at the level of Congress. Eventually at the last hour, and in order to avoid a total shutdown of the government, an agreement was scrambled.
But even if no agreement was reached, the lack of funding would not have dissolved these agencies. They would have existed in legal form, but would have had problems paying their bills and staff.
The fact, therefore, that the ERC does not have any money to pay its staff or undertake certain work does not mean that it is dissolved. Dissolution has come by constitutional amendment or through court action.
The life of the Commissioners can come to an end and when this happens, it will be for the necessary constitutional provisions to be invoked to determine how the new commissioners are appointed. Withholding funding does not vitiate the life of the commission, it merely cripples its ability to carry on its functions.
The ERC therefore still exists. The existing Commissioners are not legally forestalled from functioning. They can still meet and make decisions, as well as announce those decisions. They will have to do that, however, without any compensation, and would have to meet any expenses out of their own pockets. They are not vitiated by the decision of the combined opposition to vote a solitary dollar for the ERC.
From 1968 to 1985 general elections were rigged in Guyana. The fact that we had then a government that did not enjoy the will of the people, as determined by free and fair elections, did not delegitimize the actions of the governments during that period. The actions of those administrations, while being deemed as actions of an undemocratic government, were not for all intents and purposes recognized as coming from the government of the country.
The ERC therefore still exists until such time as its life runs its course, after which constitutional provisions have to be activated to appoint a new commission. The present commission had its life extended by the government, something that is contested by the opposition.
The budget cuts by the opposition are seen as an attempt to signal its non-recognition of the extension of the life of the commission. But here the opposition failed to make a distinction between the constitutional body proper and its officers. The institution continues until it is dissolved via a constitutional amendment.
On the question of reform, it is worrying to hear explanations that the opposition may have been attempting reforms by withholding funding. The ERC is a constitutional body that should be independent of such influence. The very suggestion that the opposition may have been attempting to influence reforms by withholding funding can be interpreted as being in contempt of the independence of a constitutional commission.
If the opposition on the other hand wanted to signal its disapproval of the extension of the life of the commission because it feels this was unlawful, a better recourse would have been to challenge this extension in court. But to cripple a constitutional commission simply because of concerns about the manner in which it was reconstituted sends a dangerous precedent, because it opens the possibility that all constitutional offices, including the Office of the Auditor General, could feel threatened by the possibility of future cuts, and therefore may become beholden to the concerns of the opposition because of the fear of being axed out of existence.
The budget cuts to the ERC therefore constitute a threat towards the independence of all constitutional offices and commissions, because these bodies may now feel that their future is now dependent on how the opposition parties feel about them.
All of this makes a mockery of the motion that the opposition recently passed calling for the independence of the judiciary. But because of the powers that the opposition now has in withholding funding for constitutional commissions and other agencies, this power can be viewed as having the potential of compromising the independence of constitutional offices and commissions.

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