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The public interest and constitutional reform

TREVOR SUDAMA Monday, June 16 2014

I am of the view that the public interest will be greatly served by instituting relevant constitutional reform in this country. Such reform is not a panacea for all the ills which afflict our political system or our society but will assist in bringing about a more equitable distribution of power among the Executive, Legislature, Judiciary and Civil Society. It will, with a greater degree of precision, circumscribe the behaviour of public office-holders and, with greater clarity, define rights, functions, powers and responsibilities.

I intend to address the matter of constitutional reform under seven main headings (1) the amplitude of human rights protected and promoted (2) the mechanics of the representation of citizens (3) the distribution of power among the various arms of the State (4) the concentration of power in the executive and proposals to circumscribe that power (5) the proper role, functions and responsibilities of the legislature (6) an effective and accountable judiciary (7) functional Local Government.

Human rights and freedoms to be enjoyed by citizens of this country are enshrined in section 4 of the current Constitution including, among other things, the right to life, liberty and security and enjoyment of property; the right to equality before the law and protection of it; the right to equality of treatment from public authority and the right to join political parties. The freedoms listed are of movement, conscience, thought and expression, association and assembly and the press.

The first point to be made is that rights and freedoms are only enjoyed through the proper and effective functioning of the State institutions established to protect and promote them. In this regard, institutions such as the judiciary, the police service, government departments, the parliament and the various commissions provided for in the constitution are of relevance. If these institutions do not carry out their responsibilities with effectiveness, timeliness, diligence and commitment, then the rights and freedoms listed are merely provisions on paper. The question we have to answer is whether our institutions are operating with an acceptable degree of effectiveness and what constitutional input might be made to make them so.

In this regard, it should be asked whether a special institution should be set up specifically to deal with the grievances of citizens who may feel that their rights and freedoms have been violated or not adequately protected. Should the constitution reform proposals include the establishment of a Human Rights Commission for this purpose to which citizens can have easier access in terms of time, administrative facilitation and cost, bearing in mind that to seek redress through the courts is cumbersome, time consuming and costly.

Another issue relates to the amplitude and sufficiency of the existing rights and freedoms in our constitution. Do we need to add to them in proposals for constitutional reform? The Universal Declaration of Human Rights by the United Nations outlines some other rights and freedoms which should be adopted by countries, for example, (a) Article 23 states that everyone has the right to work, to protection against unemployment, to the right to equal pay for equal work and to form and join trade unions for the preservations of his/her interest. (b) Article 24 lays down that everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. (c) Article 26 holds that everyone has the right to education which shall be free at least in the elementary level and fundamental stages. Elementary education shall be compulsory and technical and vocational education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. One may argue that these rights are merely aspirations for many countries whose social-economic conditions do not permit their realisation. Nevertheless, they may serve as a statement of intent. The question therefore is whether it is in the public interest to add to the existing rights and freedoms listed in the current constitution to include some or all of the above. Would such a reform give citizens a greater sense of security, comfort and well being?

A matter of agitated concern with which many of the countries of the world are grappling is whether discrimination based on sexual orientation should be outlawed. In other words, among freedoms, should freedom to choose a partner of whatever sex be protected by constitutional provision? Should gay rights be institutionalised? This is an issue which this society will have to confront sooner or later. It will invoke heated discussion and debate and be vehemently opposed by certain sectors of the society including religious organisations and possibly by a majority of citizens but it has to be put on the table if we agree that rights and freedoms should be subject to no limitations except those “determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”.

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