The Georges Commission | You and the Law

By Dr. William Para Riviere

Jan. 29, 2014

Rather than take action on the 1981 Review Commission's recommendations the new two-year old Government chose to re-invent the wheel. On September 10, 1997 it appointed another Commission to once again review our Constitution. The Commission was chaired by renowned Dominican jurist, the Right Honourable Justice Phillip Telford Georges. The other Commissioners were Dr. Francis A.C. Grell, Sociologist; Ray C.M. Harris, Attorney-at-Law, who resigned on July 1, 1988, and was replaced by Alick Lawrence, Attorney-at-Law, author of a book entitled "THE CONSTITUTION, THE GOVERNMENT AND YOU" (which we recommend for essential reading) and, now, Senior Counsel. Also appointed to membership of the Commission was Eudora Shaw, Educationist and Expert in International Relations. Secretary to the Commission was Catherine A.A. Faustin, Deputy Registrar of the High Court of Justice. The terms of reference were wider and more specific than those of its predecessor. In June 1998, the Commission published a booklet entitled OUR SOVEREIGN CONSTITUTION: A REVIEW ON OUR 21ST ANNIVERSARY, 3,000 copies of which were distributed to Dominicans at home and abroad. The review exercise was widely publicized in the press, on television and by radio. Twelve meetings were held island-wide to capture the mood of the populace. Discussions were held with individuals and civic organisations. Thirteen (13) individuals and seven (7) organisations submitted written documents. A Report was sent to Cabinet in February 1999.

The Commission made more than thirty (30) recommendations. Many of those made by the earlier Commission were embraced. Like its predecessor, the Westminster model of parliamentary government, in which Head of State and Prime Minister co-exist, was preferred to an Executive Presidency along the lines of the United States of America. But, also like the 1981 Commission, their recommendations sought to redress the balance of power between the Head of State and the Prime Minister. Hence, their recommendation that "the power of appointing Members of the Public Service Commission be vested in the President, acting in his or her own discretion after consultation". It was also proposed that the Chairperson and Deputy Chairperson of that Commission should be named by the President.

Two recommendations went further. One was that persons to be consulted by the President should include officials of public sector trade unions and "such other persons" as the President "deems fit". The other was that appointment of the Police Service Commission should follow the lead of the Public Service Commission, as recommended. The arrangement for the appointment of members to the Police Service Commission was then, as it still is, a carbon copy of the method by which the Public Service Commission is set up. In essence, the Prime Minister holds the reins.

As to the contrasting roles of the Head of State and the Prime Minister in the event of a passage of a Vote-of-No-Confidence in the government, the 1997 Commissioners were on point with their 1981 counterparts. As regards the election of the President, while recommending that the basic procedure should be left untouched," they made a number of proposals intended to "give greater orderliness to the process." Among them were that, when the need arises to elect a President, the Prime Minister should be given not just a maximum of ninety (90) days within which to consult the Leader of the Opposition but, as well, a minimum of sixty (60) days to do so. Another was that the President's term of office should be fixed from the date on which he or she takes the oath and assumes office. And, yet another was that shortly after assuming office the President should, after consultation, designate a person as the Deputy President.

More so than its predecessor, the 1997 Review Commission gave due consideration to our system of voting. The existing single-chamber Parliament was preferred to a two-chamber Senate and House of Representatives. But a recommendation was made to reduce the number of elected representatives in the House from twenty-one (21) to fifteen (15), that is to say, one elected member for every 3,842 voters. A further recommendation sought to replace the first-post-the-post system by a mixed system in which fifteen (15) members would be elected on the basis of first-post-to-post and, seven (7), by proportional representation. The seven (7) would be called "Senators". Because in this scheme of things there would be no room for nominated Senators, it was proposed that the present arrangement regarding Senators should be repealed. Also proposed was that the designation, "Leader of the Opposition", should be changed to "Leader of a Minority Party". And, where there are two or more such parties, each Leader should be referred to as such.

But such regard for the views of the public was not matched by any concern, as raised by the 1981 Commissioners, that the people's right to social, economic and cultural well-being should be written into the Constitution. On this, the Commission was silent. It was content, instead, to address the office of the Attorney-General, and that of the Director of Public Prosecutions, which its predecessor Review Commission had not done. It was recommended, on one hand, that the Attorney-General should properly be the representative of a constituency or a Senator, with qualifications adequate to fill the office. His or her membership of Cabinet should be "by reason of being a Minister and not by reason of being Attorney-General." And it was proposed, on the other hand, that the fetter, that is to say, the restraint, which Section 72(6) of our Constitution places on the Director of Public Prosecutions should be removed. The proviso to the Section relates to the discontinuance of criminal proceedings, and subjects the Director of Public Prosecutions to "general or specific directions" of the Attorney-General.

The Commissioners, like their 1981 counterparts, saw the need for change in the manner in which parliamentarians carried out the people's mandate. With a view to fostering integrity among politicians, two recommendations were made. One had to do with the office of the Parliamentary Commissioner, also known as the Ombudsman. It urged that "concrete steps" be taken to have the office filled and set in motion "with appropriate support staff." The other called for passage of an ordinary Act of Parliament to compel integrity. The logic was explained in this way: "while the maintenance of integrity among politicians can properly be regarded as falling within the field of constitutional arrangements, we see no compelling reason why the provisions to secure that end need to be placed in the Constitution itself."

In similar vein, the Commissioners called for an ordinary Act of Parliament to reinforce the right of arrested or detained persons to consult with their lawyers with reasonable promptness. Section 3(3) of the Constitution protects the liberty of "any person who is arrested or detained", by requiring that, unless released, that person must be taken before a court "without undue delay and in any case not later than seventy-two hours after such arrest or detention." Further, Section 8(2)(d) gives "every person who is charged with a criminal offence" the right to be defended in a court of law "at his own expense by a legal practitioner of his own choice." The Commissioners recommended that by ordinary legislation the existence of both rights should be recognized. And they proposed, further, that in the case of a minor the Constitution should enshrine the "right of access to a parent or guardian."

The 1997 Review Commission concluded its mission by making recommendations as to procedures for amending the Constitution. Three such recommendations were made: One, that except in respect of provisions protecting the fundamental rights and freedoms of citizens, a referendum should not be held before any amendment to the Constitution can become law. Two, a majority vote of not less than three-quarter of all the elected members of the House should be required to pass any bill to amend any Section of the Constitution other than those governing the protection of fundamental rights and freedoms. The third proposal was that a period of not less than ninety (90) days should be allowed between the introduction of an amendment bill in the House and the commencement of debate in the House on the second reading. The purpose of this delay was to channel the bill into the Committee stage and invite "the public" to express their views on the proposed amendment.

Almost fifteen years passed since the Commission delivered its Report to Government. Not surprisingly, like that of its 1981 predecessor, the Report has fallen on deaf ears.

(Dr. William Para Rivière is an Attorney-at-Law)