How independent are these constitutional commissions?

Dec 10, 2016 Letters

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Dear Editor,
With the Public Procurement Commission (PPC) now taking its first steps, and the Local Government Commission (LGC) lurking somewhere around the corner, it may be useful to take stock of the reasons why they and their sister constitutional commissions were conceptualized in the first place, and whether they are well designed to fulfill their grand shared objective. The 1999 constitutional reform process was motivated by the desperation to find constitutional structures to abate our ethnic problems exacerbated, once again, by the 1997 national election.
Alongside proposals encompassing executive power-sharing, inclusionary democracy, and good governance, the creation of so-called independent commissions to administer certain sensitive public affairs emerged as a significant conflict resolution strategy. The building concept of these agencies was that by shielding them from political control, they would be able to act independently and even-handedly, thereby winning the trust of all ethnic groups. The 1999 constitutional negotiators established seven such independent entities, with four directly related to addressing ethnic/political insecurities and demands (the Ethnic Relations Commission, the Public Procurement Commission, the Indigenous Peoples’ Commission, and the Local Government Commission).
Accordingly, Article 212FF of the constitution declares that the principles in establishing these and future commissions must eschew political interference, minimize the influence of the executive, and maximize the public perception of impartiality. And should further clarity be needed in the specific case of the LGC, the constitution (in Article 78A) grants it powers to regulate all local government authorities “as it deems fit”, without “the direction and control of any authority” (Section 3 of the LGC Act). But self-rule to meaningfully do what?
These commissions are all empowered (to an extent yet to be tested, to be sure) to make and implement policies and rules (a power normally exercised by the executive arm of government) and to adjudicate and resolve disputes (normally the preserve of the judiciary). The reform process, therefore, compelled by the necessity to immunize aspects of public administration from political capture, released a completely new creature into our political landscape: a potential fourth arm of government, outside the umbrella of the executive, the legislature, and the judiciary. It is critical also to ask what elements make a commission truly independent of political control.
Bold assertions and the absence of subordinate relationships in the legislation are mere starting points. Foremost among the elements must be that the executive government must not be able to terminate the services of commissioners at will, but only for good cause (such as for an unsound mind or criminal conviction). This constraint on the government’s power, the theory hopes, buffers commissioners against political interference and gives them scope to serve the greater good. Article 225 of our constitution clearly enshrines this for-cause protection.
Anticlimactically, after so much time, the verdict is still pending on the question of whether these independent commissions have actually delivered. Commissions are either yet to be established or re-established (eg, the LGC and the ERC), have only recently been established (the PPC), or are yet to take full flight. The empirical data is scant. We must resort to theoretical analysis. And at this level, we can point to both strong and weak attributes in the design of the four politically-sensitive commissions.
Strong attributes include, firstly, as already mentioned, the protection against at-will dismissals. A second positive feature is the multi-member composition of commissions, which could lead to fair decision-making if appointees of the various parties exercise mutual checks and balances. A third good attribute is that funding of the commissions is not hostage to any ministry’s budget but is a direct charge on the consolidated fund.
Two weaknesses stand out. The first relates to the shortness of a commissioner’s term of office to three years maximum. Longer terms, apart from fostering stability and expertise, reduce the influence of election cycles on the decision-making of commissioners.
As the second major weakness, there remains uncertainty, in my mind at least, over the exact extent to which these commissions are empowered to autonomously make policies and rules in their areas of responsibility. If they can only recommend such rules and policies, then two fundamental questions emerge: to whom should recommendations be addressed (the law is sketchy to silent on this), and would an approval process (whether ministerial or parliamentary) undermine their independence? Guyana’s experiment with autonomous constitutional agencies as one response to resolving ethnic/political problems and maximizing public trust should be hailed, but has lost much momentum.
Sixteen years after their conceptualization, none of the four main agencies has delivered. Just as disappointing, the experiment has not encompassed statutory bodies that are involved in the politically sensitive issue of resource and opportunity allocation, such as the Guyana National Broadcasting Authority and the National Procurement and Tender Administration.
Sherwood Lowe

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