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27 March 2000
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27 March 2000
Morning
1830th meeting
Inherent difficulties experienced by Amerindians in exercising their rights would not disappear for a number of reasons, Roger Luncheon, head of Guyana’s delegation, told the Human Rights Committee this morning, as it concluded its consideration of that country’s compliance with the International Covenant on Civil and Political Rights.
Responding to questions posed by the 18-member expert Committee, he said that the concept of the preservation of Amerindian culture and rights, particularly ancestral land, was an ill-defined term in Guyana’s legal terminology. The issue required discourse, understanding and a willingness to understand the problems of the Amerindian people. There were over 50 Amerindian communities, to be demarcated in some of the more distant parts of the country.
Amerindian leaders, he continued, were, therefore, invited to allow demarcation to be carried out based on the currently known boundaries. Once those areas were demarcated, then discussions with the Amerindian community on extensions and other criteria would take place to discuss how the 1960 boundaries could be extended to accommodate the 1990s reality. A considerable number of the Amerindian communities had acceded to those suggestions.
The issue was, however, a political one, he went on. Some people had equated the failure to resolve the demarcation issue in the 1990s as the failure of the present administration to be responsive to the needs of the Amerindian community. As a result of such accusations, certain Amerindian communities had refused to have talks with the current administration and refused to accept any proposal on demarcation based on the 1960s reality. Their demands: demarcate according to the current reality, or there would be no deal.
Several experts this morning expressed concern about the plight of Amerindians in Guyana. One expert said that the indigenous population did not enjoy the right to equality before the law, citing such problems as interpretation, translation and the general lack of legal rights. What was being done to rectify that situation and to ensure the full participation of the Amerindian people in the society? the expert asked. While it appeared that the Amerindian Act was in need of reform, little had been done from a legislative point of view.
Regarding the demarcation of indigenous land, she asked whether it was based on the former use of land and, thus, did not take into account local communities, and the need for greater land use to support communities. Also, was it not true that the Government held the deeds to the land and was, therefore, free to give out mining and logging permits?
In response to questions, Mr. Luncheon said that further efforts by the administration were needed to arrive at a level of acceptability in the way in which indigenous people were treated before the law. Guyana could be proud of its record in preserving the cultural rights and improving the socio-economic status of the indigenous people. The problem, which had assumed the proportions of a political issue, would undoubtedly be swayed by political arguments.
Another expert noted that, while popular sentiment in Guyana supported the death penalty, the Covenant called for movement towards its abolition. There was often a common misunderstanding between respecting the will of the people and the protection of human rights. The State must educate the people so as to respect Covenant rights. It had been shown in many countries that the existence of capital punishment did not deter violent crime and created an atmosphere where human dignity was not respected.
The Committee Chairman, Cecilia Medina Quiroga (Chile), said in closing remarks that she sincerely regretted that the report presented in 1999 only had information up until 1987. As pointed out, there had been a dictatorship up until 1992. The Committee would have liked an account of what had happened in that time. The responses to the questions sent out by Committee members well in advance had been of a very general nature.
The Committee will meet again at 3 p.m. today to continue its consideration of its draft general comment on article 3 of the Covenant (gender equality).
Committee Work Programme
The Human Rights Committee met this morning to continue its review of the second periodic report of Guyana on compliance with the International Covenant on Civil and Political Rights. (For background details, see Press Release HR/CT/557 dated 24 March.)
Responses to Questions
Dr. ROGER LUNCHEON, head of the delegation of Guyana, responding to a question raised on the steps taken to update the Amerindian Act and the difficulties experienced by leaders of that ethnic group in exercising their rights, pointed out that the updating of the Act was part and parcel of a constitutional reform process. Within that process, a constitutional commission to address the national position of the indigenous people had been established so that the issue would be given its due and proper position.
He said question of Amerindian lands with respect to logging activities was a very political issue in Guyana. The land-demarcation boundaries currently in place arose during the colonial period in the history of then British Guiana. The issue of demarcation remained outside the consideration of the previous political regime in the country. In 1993, however, one year after the current administration took office, those matters were addressed at a parliamentary level. The State position then was that demarcation would take place in the Amerindian communities according to extant boundary markings.
Notwithstanding, he continued, the State registered an awareness of the need expressed by the captains and spokespersons of the Amerindian communities for present boundaries to be extended primarily on the basis of population growth. There were over 50 Amerindian communities, to be demarcated in the some of the more distant parts of the country. The cost of that process was expected to be a phenomenal one. Amerindian leaders were, therefore, invited to allow demarcation to be carried out based on the currently known boundaries. Once those areas were demarcated, then discussions with the Amerindian community on extensions and other criteria would take place to discuss how the 1960 boundaries could be extended to accommodate the 1990 reality.
A considerable number of the Amerindian communities had acceded to those suggestions, he continued. The issue, however, was a political one, and some people had equated the failure to resolve the demarcation issue in the 1990s as the failure of the present administration to be responsive to the needs of the Amerindian community. As a result of such accusations, certain Amerindian communities had refused to have talks with the current administration and refused to accept any proposal on demarcation based on the 1960s reality. Their demands: demarcate according to the current reality, or there would be no deal.
Commenting on the difficulties experienced by Amerindians in exercising their rights, he acknowledged that there were inherent difficulties which would not disappear for a number of reasons. Certainly, the concept of the preservation of Amerindian culture and rights, particularly ancestral land, was an ill-defined term in Guyana’s legal terminology. The issue required discourse, understanding and a willingness to understand the problems of the Amerindian people. Both the Amerindian and non-Amerindian populations had to work jointly to address and improve that issue in the short term.
Replying to a question on steps taken to disseminate information on the second periodic report, he advised the Committee that the Ministry of Foreign Affairs had moved to have documentation related to the entire discharge of its foreign policy mandate to be placed on the official government Web site. He also pointed out that within the parliamentary system a subcommittee on foreign affairs reviewed and provided various insights on the Ministry of Foreign Affairs, including the periodic report on the Covenant. The Ministry also maintained a regular news bulletin on the radio on certain issues. In that respect, upon his return home, he could well be asked about the Committee’s reception to the current report.
He then returned to a few questions that the delegation had not been able to respond to on Friday. In relation to the question of court decisions upholding Covenant rights, he said that the judiciary responded to what was provided for in the law. Many of the Covenant articles were covered under the section in the Constitution on fundamental rights and freedoms of the individual. The Constitutional Reform Commission had made recommendations specifically calling for a constitutional provision, which would have courts pay due regard to international laws and conventions. Currently, there were efforts under way by the State to create enabling legislation to address those issues not yet addressed by domestic legislation with regard to Covenant articles.
On the Office of the Ombudsman, he said that the Ombudsman Act had identified those categories of complaints that could be addressed under that Act. The Act had been recognized by the State as having some shortcomings, which were currently being addressed under the constitutional reform process. A major shortcoming was a lack of enforceability. It was Parliament’s wisdom that determined in what manner the Ombudsman’s findings would be addressed. The Office of the Ombudsman was important, in that it addressed complaints by Guyanese who alleged abuses of administrative and regulatory procedures. The issue of enforceability had held the attention of those dealing with the constitutional reform process.
Regarding the right to life, he said that the Constitution had provided for the fundamental right to life of the individual, which, of course, was in relation to the right of the courts to deliver a sentence to the contrary. It was the view of the Guyanese people that capital punishment was not inconsistent with fundamental human rights.
Comments and Questions by Experts
An expert asked for more information on the conditions related to preventive detention, particularly for those under the age of 16. What kind of re-education and rehabilitation was provided for those young people, especially those taken to the Belfield School? Also, what were the links between the Ombudsman’s Office and the National Commission on Human Rights? In addition, more information was necessary on the possibility of eliminating the death penalty.
One expert asked at what stage the constitutional reform process stood, when it was likely to be completed and when it would result in a new constitution. How was the independence of the judiciary secured? Also, he wanted to know what Guyana’s law of contempt of court was since there was information to suggest that any criticism of a judge would be considered contempt of court. In addition, he wanted to know whether the import of newsprint was still controlled and if so, how it was regulated. Was there any regulation in terms of newspapers and journals? Also, what was the percentage of Amerindians in Guyana and what was the composition and functions of the Commission for Amerindian Affairs? he asked. In relation to constitutional reform, another expert noted that there were good reasons why international human rights treaties should have an independent place within the Constitution. Presently, there were articles in Guyana’s Constitution, which were contrary to Covenant rights. Would the new Constitution make the right to non-discrimination an independent right?
On the right to life, it was stated that there was popular support for the retention of the death penalty, he said. The reform process should look at the right to life and the position of the death penalty in the future constitution. There was a duty to work towards the abolishment of the death penalty under Covenant obligations, even though Guyana was not party to the Second Optional Protocol. He wanted to know whether the issue was under discussion. It had been shown that the existence of capital punishment did not deter violent crime and created an atmosphere where human dignity was not respected.
With regard to indigenous rights, he wanted to know what the relationship was between self-determination and the power to make recommendations by the Commission on Indigenous Affairs. What was the understanding of consultation? Was there a veto right in that consultation process? What was the nature of consultations in relation to the right to control economic life? What was the situation regarding rights to subsoil and mineral resources? An expert pointed out that the delegation had been asked for examples of court decisions which upheld Covenant rights, but that responses this morning had not covered that issue.
She also wanted to know whether the police in Guyana were mainly Afro-Guyanese? If that was the case, did it contribute to racial tensions? Also, in light of such a reality, what steps were being taken so that the police force would reflect the diversity of the population?
Based on responses given this morning, she said, while it appeared that the Amerindian Act was in need of reform, little had been done from a legislative point of view. Regarding the demarcation of indigenous land, was it the case that demarcation was based on former use of land and did not take into account local communities, and the need for greater land use to support communities? Also, was it not true that the Government held the deeds to the land and was, therefore, free to give out mining and logging permits? Were there defined principles in respect of demarcation that could be taken to court to address the effective demarcation of lands? she asked.
She said that the indigenous population did not enjoy the right to equality before the law, citing such problems as interpretation, translation and the general lack of legal rights. What was being done to rectify that situation and to ensure the full participation of the Amerindian people in the society? she asked. Drawing attention to the fact that there was an annual report of the Ombudsman, an expert requested that a copy be given to the Secretariat for the Committee’s perusal. Also, if they were not in that report, he would welcome a further indication of the number of complaints and types of complaints related to the violation of human rights. Referring to the issue of enforceability, he felt that the Ombudsman’s Law had weaknesses and raised general question as to whether there was any agency other than courts that could provide an "effective and enforceable" remedy to the Ombudsman’s recommendations. Was there an effective remedy for individuals in the country whose human rights were being violated? Also, what role did the local human rights committee play in responding to human rights violations?
An expert said that the report had mentioned outrageous things being done to people in general and psychiatric hospitals. Were such practices still in place? Addressing the issue of arrests, he said the report had stated that the police were obliged to bring a person arrested before a magistrate as soon as practicable, except in cases of a serious nature. The fact that there was such discretion available, and that the police could make such choices, could have very serious consequences. In fact, the police could do whatever they wanted, whenever they so decided. He asked if any initiatives had been taken to limit police power in that respect.
The same expert went on to say that such discretionary powers were difficult to accept and not justifiable in terms of human rights. For example, while juveniles might be released on bail, the report said young people who were considered unruly or depraved could not be detained in the ways called for by the Covenant. What was the meaning of depraved in that sense and how did one define a degree of depravity? he asked.
An expert also noted that the report said that some newspapers had been prevented from buying newsprint. Not allowing newsprint to be sold was a form of censorship. Did such practices still take place?
The report drew attention to the fact that advocacy of national and religious hatred had proven to be disastrous to nations, said an expert. The report also said that it was up to the State party to prevent such advocacy. Was there, indeed, a problem of such incitement causing hostility? Was the public order act being amended to bring Guyana into compliance with the Covenant in that respect?
Response by Guyana
Dr. LUNCHEON said there were legislative sanctions against race incitement, independent of the specific legislation addressing the media. Guyana was in the throes of a fairly extensive discussion on race relations. It was quite evident that not only independent personalities, but leading media personalities adopted and presented positions for racial incitement. Unfortunately, the enforcement of the law in that regard was currently rather poor. As a result, one could imagine the current situation, where public and private individuals in the media quite frequently carried out those unacceptable acts.
Regarding the media, he said the proposed broadcasting act deemed that personalities who made statements not consistent with law was a matter to be addressed by the State. The matter, however, had not been aggressively addressed by the State and had led to concerns about the way in which racial incitement and hatred had been introduced into the lives of the Guyanese people.
On prisons, he said that the second periodic report had covered the period from 1982 to 1987, a period that most Guyanese would like to forget. That period of dictatorship ended in 1992, when the current administration took office after the first free and fair elections in Guyana. Much of the information during that period reflected the practices of the then administration. He was certain that the information available on the conduct of the current administration was perhaps much more important for the present discussion.
The practices of the previous administration, which had been condemned both by Guyanese and freedom-loving people all over the world, were no longer part of the current administration’s practices, he said. Many of the practices raised by the experts did not exist after 1992, such as the control of the newspapers and forced drug treatment. Many of the activities of that report were not features of Guyana’s human rights landscape.
He said that it was recognized that the Ombudsman’s Act had significant deficiencies, particularly relating to enforceability, which was exclusively a court matter. Given time, rulings by the Ombudsman and many other features of civil society would be more enforced by public opinion than by any legal means.
The problems of indigenous people were a complicated matter not only in Guyana, but all over the world, he said. In 1992, the current administration spent time in addressing the plight of Amerindians. Institutions and norms of practice were created to allow for a more fruitful engagement between the administration and Amerindians. However, the resolutions that had resulted were not of the scope and magnitude that pleased everyone. With regard to subsoil rights, he stated that such rights were not even enjoyed by other Guyanese citizens. Thus, it would be difficult to confer them on any one particular community.
Continuing, he said that on the issue of equality before the law, exceptions remained unnecessarily numerous. Much more intervention by the administration was needed to arrive at a level of acceptability in the way in which indigenous people were treated before the law. Guyana could be proud in its record in the preservation of the cultural rights and the improvement in the socio-economic standing of the indigenous people. The issue had assumed the proportions of a political issue and undoubtedly would be swayed by political arguments.
He said that within the constitutional reform process, the consultation process should be viewed as a meaningful one. During the dictatorship, the consultations drew unfavourable comments from the participants. The understanding of consultation had grown since then. Those who contributed to the constitutional reform process recognized the need to have more predictable inputs in the consultation process than there had been in the past.
Turning to the police, he said that during the dictatorship period the composition of the police force was almost 100 per cent Afro-Guyanese, and there had been much racial tension between security forces and the people. Today, that composition had changed minimally. Police brutality was an issue pertaining to the police forces and their relation to the arbitration of problems in the community. Its contribution to racial tensions must be examined differently in the context of the dictatorship period and the democratic period.
On the right to life, the Covenant and Guyana’s obligations under the Covenant, he said that that issue was part of an ongoing debate within the country. With respect to those condemned to hanging, it was the attitude of the judiciary to resort to what was inscribed in the law as final. There continued to be considerable work done to keep the issue of capital punishment before the people. There were many unresolved issues, which had assumed constitutional proportion. There was no doubt that constitutional reform and the deepening of the understanding of the respect for human life and other Covenant rights would continue to occupy the attention of the Commission on Constitutional Reform, to be created under the new constitution.
With regard to the state of the constitutional reform process, he said the process had started again under the aegis of the current administration and was close to completion. The recommendations made had been adopted by the Parliament. What was being done now was the groundwork to transform those recommendations into user-friendly language, which could then be incorporated into the new Constitution. The new Constitution was expected to be in place by the next elections scheduled for January 2001.
Further Comments by Experts
Noting that the Committee’s activities and those of the Government in the area of human rights and the Covenant were posted on a national Web site, an expert wondered how much of the population had access to computers and the Internet. To what extent had the police exercised the power to arrest in regard to cases of violence against women? he asked. What was the situation on police intervention to protect women against abuse?
He noted that it was stated that popular sentiment supported capital punishment and that respect for popular sentiment was part of ensuring human rights. However, in general, there was a common misunderstanding between the will of the people and protection of human rights. The Covenant called for the movement towards the abolition of the death penalty. The Government must educate the people in order to respect what was contained in the Covenant.
One expert requested further information on the conditions of daily life in the Belfield Girls’ School and on programmes enforced to prevent a repetition of delinquency.
Another expert wanted to know about the availability of newsprint and its regulation. Also, it appeared that education was now the sole responsibility of the Government. Did that mean there were no private schools? In addition, was there free legal assistance available to the poor? What was the state of education for the Amerindians?
Delegation’s Responses
With regard to computer accessibility, Mr. LUNCHEON replied that it was generally available in Guyana. However, it was not as widely available in the hinterland regions, as it was in the coastal areas. The information carried on the Web site was also disseminated in printed form, as the print media was still dominant in Guyana.
The police, he said, had the right to arrest under the Criminal Law Act and the Police Act. Sensitization of the police force was important in addressing domestic violence. There was a large number of social workers and counselors involved in the enforcement of the Domestic Violence Act, and their interaction with the police had contributed to raising their awareness.
He said that the Belfield Girls’ School no longer existed and had been changed to the Women’s Leadership Institute. On publishing questions, he said that there were licenses and regulations that would have to be recognized in the world of publishing. However, those regulations had not created, in the current administration, any difficulties for publishers and the print media. The easy access to print materials had not been hindered by the existence of those regulations.
The laws in Guyana, he continued, were silent on the provision of legal aid not related to specific circumstances. Non-governmental organizations were active in providing legal aid to the poor, but were subject to several inadequacies.
With regard to the education of Amerindians, he said that since 1992, consistent efforts had been made to address the educational standing in Amerindian communities. Previously, they had never had secondary education. Now, secondary education was being provided in many communities, and many were being brought to the coast for post-secondary education.
Moving on to clarifications sought by experts on Friday, he said that the establishment of the Caribbean Court of Appeal was another tool for enhancing the independence of the judiciary. Lay magistrates would be appointed by the Judicial Lay Commission. Under the proportional representation system and the list model, the current Constitution allowed for the leader of a list to appoint any member of the list to occupy the seat in Parliament won by that list.
Turning to prisons, he said the laws did not allow children to be imprisoned with adults. Observations made in the report referred to children on remand, who were awaiting their posting to a correctional institute, being housed in police stations. That period of waiting was often delayed, because those children might be coming from far away regions to the one correctional institute that was available for children in Guyana. Health care was provided for prisoners within the prisons, and hospitalization was made available for those who needed it. Many prisoners remanded after preliminary investigations spent years in remand awaiting trial. Efforts were being carried out to address that terrible injustice.
Mr. LUNCHEON acknowledged the problems of prison overcrowding raised by the Committee. Regarding non-custodial sentencing, there were new laws and enlightened attitudes being advanced in respect to the granting of parole to prisoners. He said he had a problem with the assertion made on Friday that torture was commonplace in Guyana and that it was used to extract confessions. Magistrates resorted to legal manoeuvres to address the admissibility of such evidence in court.
He said that there had been 20 extrajudicial killings over the last two years at the hands of the security services. The number, however, had been decreasing over the years. He did not, however, possess specific information on the names of victims given by the Committee on Friday. Commenting on the procedures in the cases of death at the hands of the security forces, he said an administrative mechanism for investigation was required by law and had been in place ever since he could remember. That mechanism was used to confirm or not confirm whether the use of force was justifiable by the security forces. The State resorted to a legal pronouncement on culpability when there were incidents where doubt existed. Those processes were often lengthy, because what was being dealt with was an instrument that had tremendous impact on the lives of Guyanese.
He said he was not aware of any political persecution. Also, there was no specific protection afforded to media workers. That was not to say that such protection was not provided for in the Constitution; it was just not dedicated to media workers.
Regarding the questions raised on women, he said this morning a document had been circulated that dealt with the place and role of people in the society and the constitutional reform recommendation pertaining to women’s participation in society. Also, the issue of debt bondage that was alluded to, where women were exchanged or subjected to bondage as repayment of a debt, was not practised in Guyana and was unknown to Guyanese. That allegation would have to be investigated.
While corporal punishment was not explicitly forbidden under Guyanese law, it was also not explicitly practised in schools, he said. It had, however, not been the subject of reviews in the courts.
He said ethnic relations were receiving the highest consideration in the constitutional reform process. The aim was to restore ethnic health and tolerance in the society.
An expert said there were many issues raised on Friday that had not been fully addressed by the delegation. The delegation had conceded that children under 10 could be detained for considerable periods and she expressed concern over that. Regarding torture and police brutality, she said a number of specific examples had been raised. She cited the cases of Mark Brown and Natasha Nephews. She had hoped that this morning more specific information on the numerous allegations would have been provided, including investigations and prosecutions on the allegations of torture, brutality and killings by the police. The delegation had also been asked about the sensitization of police in regard to domestic violence and to clarify whether legal aid was available.
Another expert said police brutality was not the same as the allegation of systematic torture. There was a lot of information on specific cases of the latter, and Committee members wanted more on that, or at least an assessment by the delegation on it.
The expert said there was the gap between the wording of the Covenant and the reality of a person being promptly brought before judge upon arrest, in light of the discretionary power of the police who could bring a person before the court when it was considered "reasonably practicable". Commenting on a person’s enforceable rights to compensation if arrested unlawfully, he wanted to know to whom could claims be directed. Was it police officers or the State?
Mr. LUNCHEON said the documents circulated this morning addressed some of the issues. The laws of Guyana, with respect to legal representation at pre-trial hearings, clearly established the rights to counsel. When a person came before a high court or court or appeal without legal representation, the State must assign counsel and pay for that person to represent the accused.
Regarding the enforceability of compensation, he said that intruded into the area of civil law. Only by application to a court could such compensation be addressed. If a detention was deemed unwarranted, it was not automatic for compensation to be paid. The writ of habeas corpus was generally filed 72 hours after the detention of subject. It was extremely unusual for a person being detained to be held without a writ being filed against them. Detainees were either released or charged within the prescribed period.
Regarding the issue of police brutality, he said the statistics asked for were not easily available, since the Government did not make any special effort to collect and record any such allegations. As a category of human rights abuse, incidents of police brutality were not routinely collected by the State.
CECILIA MEDINA QUIROGA (Chile), Chairman of the Committee, said she sincerely regretted that the report presented in 1999 only had information up until 1987. As pointed out, there had been a dictatorship up until 1992 in Guyana. The Committee would have liked an account of what had happened in that time. Committee members sent out the list of questions well in advance. Those questions were really not answered specifically, and the responses had been very general.
She noted that the recommendations of the Commission on Constitutional Reform were legally binding. If they were, then they were formulated in very general terms. Even so, it was very clear what remained to be done. Based on what the recommendations advanced, there was still a lot missing in terms of the Constitution’s relationship to the Covenant. Many categories of people had also been omitted from the law project.
Mr. LUNCHEON said since 1992, in any consideration of Guyana’s reality since the onset of democracy, the most modest of analyses must recognize the country’s accomplishments. The meeting that ended today had provided considerable opportunity for Guyana to make the right decisions and appropriate adjustments in bringing itself in compliance with its obligations.
It would not, however, happen immediately. It would, thus, be ill-advised to expect that Guyana could sit before the Committee next year any say that every single aspect of its obligations had been addressed. His country’s commitment would have to be a measured one, in consonance with its capabilities and the support received in addressing the fundamental and critical issues of national life.
_________
* The meeting number in Press Release HR/CT/557 of 24 March should
read 1829th. The 1827th and 1828th meetings were closed, respectively.
* *** *
Morning
1830th meeting
Inherent difficulties experienced by Amerindians in exercising their rights would not disappear for a number of reasons, Roger Luncheon, head of Guyana’s delegation, told the Human Rights Committee this morning, as it concluded its consideration of that country’s compliance with the International Covenant on Civil and Political Rights.
Responding to questions posed by the 18-member expert Committee, he said that the concept of the preservation of Amerindian culture and rights, particularly ancestral land, was an ill-defined term in Guyana’s legal terminology. The issue required discourse, understanding and a willingness to understand the problems of the Amerindian people. There were over 50 Amerindian communities, to be demarcated in some of the more distant parts of the country.
Amerindian leaders, he continued, were, therefore, invited to allow demarcation to be carried out based on the currently known boundaries. Once those areas were demarcated, then discussions with the Amerindian community on extensions and other criteria would take place to discuss how the 1960 boundaries could be extended to accommodate the 1990s reality. A considerable number of the Amerindian communities had acceded to those suggestions.
The issue was, however, a political one, he went on. Some people had equated the failure to resolve the demarcation issue in the 1990s as the failure of the present administration to be responsive to the needs of the Amerindian community. As a result of such accusations, certain Amerindian communities had refused to have talks with the current administration and refused to accept any proposal on demarcation based on the 1960s reality. Their demands: demarcate according to the current reality, or there would be no deal.
Several experts this morning expressed concern about the plight of Amerindians in Guyana. One expert said that the indigenous population did not enjoy the right to equality before the law, citing such problems as interpretation, translation and the general lack of legal rights. What was being done to rectify that situation and to ensure the full participation of the Amerindian people in the society? the expert asked. While it appeared that the Amerindian Act was in need of reform, little had been done from a legislative point of view.
Regarding the demarcation of indigenous land, she asked whether it was based on the former use of land and, thus, did not take into account local communities, and the need for greater land use to support communities. Also, was it not true that the Government held the deeds to the land and was, therefore, free to give out mining and logging permits?
In response to questions, Mr. Luncheon said that further efforts by the administration were needed to arrive at a level of acceptability in the way in which indigenous people were treated before the law. Guyana could be proud of its record in preserving the cultural rights and improving the socio-economic status of the indigenous people. The problem, which had assumed the proportions of a political issue, would undoubtedly be swayed by political arguments.
Another expert noted that, while popular sentiment in Guyana supported the death penalty, the Covenant called for movement towards its abolition. There was often a common misunderstanding between respecting the will of the people and the protection of human rights. The State must educate the people so as to respect Covenant rights. It had been shown in many countries that the existence of capital punishment did not deter violent crime and created an atmosphere where human dignity was not respected.
The Committee Chairman, Cecilia Medina Quiroga (Chile), said in closing remarks that she sincerely regretted that the report presented in 1999 only had information up until 1987. As pointed out, there had been a dictatorship up until 1992. The Committee would have liked an account of what had happened in that time. The responses to the questions sent out by Committee members well in advance had been of a very general nature.
The Committee will meet again at 3 p.m. today to continue its consideration of its draft general comment on article 3 of the Covenant (gender equality).
Committee Work Programme
The Human Rights Committee met this morning to continue its review of the second periodic report of Guyana on compliance with the International Covenant on Civil and Political Rights. (For background details, see Press Release HR/CT/557 dated 24 March.)
Responses to Questions
Dr. ROGER LUNCHEON, head of the delegation of Guyana, responding to a question raised on the steps taken to update the Amerindian Act and the difficulties experienced by leaders of that ethnic group in exercising their rights, pointed out that the updating of the Act was part and parcel of a constitutional reform process. Within that process, a constitutional commission to address the national position of the indigenous people had been established so that the issue would be given its due and proper position.
He said question of Amerindian lands with respect to logging activities was a very political issue in Guyana. The land-demarcation boundaries currently in place arose during the colonial period in the history of then British Guiana. The issue of demarcation remained outside the consideration of the previous political regime in the country. In 1993, however, one year after the current administration took office, those matters were addressed at a parliamentary level. The State position then was that demarcation would take place in the Amerindian communities according to extant boundary markings.
Notwithstanding, he continued, the State registered an awareness of the need expressed by the captains and spokespersons of the Amerindian communities for present boundaries to be extended primarily on the basis of population growth. There were over 50 Amerindian communities, to be demarcated in the some of the more distant parts of the country. The cost of that process was expected to be a phenomenal one. Amerindian leaders were, therefore, invited to allow demarcation to be carried out based on the currently known boundaries. Once those areas were demarcated, then discussions with the Amerindian community on extensions and other criteria would take place to discuss how the 1960 boundaries could be extended to accommodate the 1990 reality.
A considerable number of the Amerindian communities had acceded to those suggestions, he continued. The issue, however, was a political one, and some people had equated the failure to resolve the demarcation issue in the 1990s as the failure of the present administration to be responsive to the needs of the Amerindian community. As a result of such accusations, certain Amerindian communities had refused to have talks with the current administration and refused to accept any proposal on demarcation based on the 1960s reality. Their demands: demarcate according to the current reality, or there would be no deal.
Commenting on the difficulties experienced by Amerindians in exercising their rights, he acknowledged that there were inherent difficulties which would not disappear for a number of reasons. Certainly, the concept of the preservation of Amerindian culture and rights, particularly ancestral land, was an ill-defined term in Guyana’s legal terminology. The issue required discourse, understanding and a willingness to understand the problems of the Amerindian people. Both the Amerindian and non-Amerindian populations had to work jointly to address and improve that issue in the short term.
Replying to a question on steps taken to disseminate information on the second periodic report, he advised the Committee that the Ministry of Foreign Affairs had moved to have documentation related to the entire discharge of its foreign policy mandate to be placed on the official government Web site. He also pointed out that within the parliamentary system a subcommittee on foreign affairs reviewed and provided various insights on the Ministry of Foreign Affairs, including the periodic report on the Covenant. The Ministry also maintained a regular news bulletin on the radio on certain issues. In that respect, upon his return home, he could well be asked about the Committee’s reception to the current report.
He then returned to a few questions that the delegation had not been able to respond to on Friday. In relation to the question of court decisions upholding Covenant rights, he said that the judiciary responded to what was provided for in the law. Many of the Covenant articles were covered under the section in the Constitution on fundamental rights and freedoms of the individual. The Constitutional Reform Commission had made recommendations specifically calling for a constitutional provision, which would have courts pay due regard to international laws and conventions. Currently, there were efforts under way by the State to create enabling legislation to address those issues not yet addressed by domestic legislation with regard to Covenant articles.
On the Office of the Ombudsman, he said that the Ombudsman Act had identified those categories of complaints that could be addressed under that Act. The Act had been recognized by the State as having some shortcomings, which were currently being addressed under the constitutional reform process. A major shortcoming was a lack of enforceability. It was Parliament’s wisdom that determined in what manner the Ombudsman’s findings would be addressed. The Office of the Ombudsman was important, in that it addressed complaints by Guyanese who alleged abuses of administrative and regulatory procedures. The issue of enforceability had held the attention of those dealing with the constitutional reform process.
Regarding the right to life, he said that the Constitution had provided for the fundamental right to life of the individual, which, of course, was in relation to the right of the courts to deliver a sentence to the contrary. It was the view of the Guyanese people that capital punishment was not inconsistent with fundamental human rights.
Comments and Questions by Experts
An expert asked for more information on the conditions related to preventive detention, particularly for those under the age of 16. What kind of re-education and rehabilitation was provided for those young people, especially those taken to the Belfield School? Also, what were the links between the Ombudsman’s Office and the National Commission on Human Rights? In addition, more information was necessary on the possibility of eliminating the death penalty.
One expert asked at what stage the constitutional reform process stood, when it was likely to be completed and when it would result in a new constitution. How was the independence of the judiciary secured? Also, he wanted to know what Guyana’s law of contempt of court was since there was information to suggest that any criticism of a judge would be considered contempt of court. In addition, he wanted to know whether the import of newsprint was still controlled and if so, how it was regulated. Was there any regulation in terms of newspapers and journals? Also, what was the percentage of Amerindians in Guyana and what was the composition and functions of the Commission for Amerindian Affairs? he asked. In relation to constitutional reform, another expert noted that there were good reasons why international human rights treaties should have an independent place within the Constitution. Presently, there were articles in Guyana’s Constitution, which were contrary to Covenant rights. Would the new Constitution make the right to non-discrimination an independent right?
On the right to life, it was stated that there was popular support for the retention of the death penalty, he said. The reform process should look at the right to life and the position of the death penalty in the future constitution. There was a duty to work towards the abolishment of the death penalty under Covenant obligations, even though Guyana was not party to the Second Optional Protocol. He wanted to know whether the issue was under discussion. It had been shown that the existence of capital punishment did not deter violent crime and created an atmosphere where human dignity was not respected.
With regard to indigenous rights, he wanted to know what the relationship was between self-determination and the power to make recommendations by the Commission on Indigenous Affairs. What was the understanding of consultation? Was there a veto right in that consultation process? What was the nature of consultations in relation to the right to control economic life? What was the situation regarding rights to subsoil and mineral resources? An expert pointed out that the delegation had been asked for examples of court decisions which upheld Covenant rights, but that responses this morning had not covered that issue.
She also wanted to know whether the police in Guyana were mainly Afro-Guyanese? If that was the case, did it contribute to racial tensions? Also, in light of such a reality, what steps were being taken so that the police force would reflect the diversity of the population?
Based on responses given this morning, she said, while it appeared that the Amerindian Act was in need of reform, little had been done from a legislative point of view. Regarding the demarcation of indigenous land, was it the case that demarcation was based on former use of land and did not take into account local communities, and the need for greater land use to support communities? Also, was it not true that the Government held the deeds to the land and was, therefore, free to give out mining and logging permits? Were there defined principles in respect of demarcation that could be taken to court to address the effective demarcation of lands? she asked.
She said that the indigenous population did not enjoy the right to equality before the law, citing such problems as interpretation, translation and the general lack of legal rights. What was being done to rectify that situation and to ensure the full participation of the Amerindian people in the society? she asked. Drawing attention to the fact that there was an annual report of the Ombudsman, an expert requested that a copy be given to the Secretariat for the Committee’s perusal. Also, if they were not in that report, he would welcome a further indication of the number of complaints and types of complaints related to the violation of human rights. Referring to the issue of enforceability, he felt that the Ombudsman’s Law had weaknesses and raised general question as to whether there was any agency other than courts that could provide an "effective and enforceable" remedy to the Ombudsman’s recommendations. Was there an effective remedy for individuals in the country whose human rights were being violated? Also, what role did the local human rights committee play in responding to human rights violations?
An expert said that the report had mentioned outrageous things being done to people in general and psychiatric hospitals. Were such practices still in place? Addressing the issue of arrests, he said the report had stated that the police were obliged to bring a person arrested before a magistrate as soon as practicable, except in cases of a serious nature. The fact that there was such discretion available, and that the police could make such choices, could have very serious consequences. In fact, the police could do whatever they wanted, whenever they so decided. He asked if any initiatives had been taken to limit police power in that respect.
The same expert went on to say that such discretionary powers were difficult to accept and not justifiable in terms of human rights. For example, while juveniles might be released on bail, the report said young people who were considered unruly or depraved could not be detained in the ways called for by the Covenant. What was the meaning of depraved in that sense and how did one define a degree of depravity? he asked.
An expert also noted that the report said that some newspapers had been prevented from buying newsprint. Not allowing newsprint to be sold was a form of censorship. Did such practices still take place?
The report drew attention to the fact that advocacy of national and religious hatred had proven to be disastrous to nations, said an expert. The report also said that it was up to the State party to prevent such advocacy. Was there, indeed, a problem of such incitement causing hostility? Was the public order act being amended to bring Guyana into compliance with the Covenant in that respect?
Response by Guyana
Dr. LUNCHEON said there were legislative sanctions against race incitement, independent of the specific legislation addressing the media. Guyana was in the throes of a fairly extensive discussion on race relations. It was quite evident that not only independent personalities, but leading media personalities adopted and presented positions for racial incitement. Unfortunately, the enforcement of the law in that regard was currently rather poor. As a result, one could imagine the current situation, where public and private individuals in the media quite frequently carried out those unacceptable acts.
Regarding the media, he said the proposed broadcasting act deemed that personalities who made statements not consistent with law was a matter to be addressed by the State. The matter, however, had not been aggressively addressed by the State and had led to concerns about the way in which racial incitement and hatred had been introduced into the lives of the Guyanese people.
On prisons, he said that the second periodic report had covered the period from 1982 to 1987, a period that most Guyanese would like to forget. That period of dictatorship ended in 1992, when the current administration took office after the first free and fair elections in Guyana. Much of the information during that period reflected the practices of the then administration. He was certain that the information available on the conduct of the current administration was perhaps much more important for the present discussion.
The practices of the previous administration, which had been condemned both by Guyanese and freedom-loving people all over the world, were no longer part of the current administration’s practices, he said. Many of the practices raised by the experts did not exist after 1992, such as the control of the newspapers and forced drug treatment. Many of the activities of that report were not features of Guyana’s human rights landscape.
He said that it was recognized that the Ombudsman’s Act had significant deficiencies, particularly relating to enforceability, which was exclusively a court matter. Given time, rulings by the Ombudsman and many other features of civil society would be more enforced by public opinion than by any legal means.
The problems of indigenous people were a complicated matter not only in Guyana, but all over the world, he said. In 1992, the current administration spent time in addressing the plight of Amerindians. Institutions and norms of practice were created to allow for a more fruitful engagement between the administration and Amerindians. However, the resolutions that had resulted were not of the scope and magnitude that pleased everyone. With regard to subsoil rights, he stated that such rights were not even enjoyed by other Guyanese citizens. Thus, it would be difficult to confer them on any one particular community.
Continuing, he said that on the issue of equality before the law, exceptions remained unnecessarily numerous. Much more intervention by the administration was needed to arrive at a level of acceptability in the way in which indigenous people were treated before the law. Guyana could be proud in its record in the preservation of the cultural rights and the improvement in the socio-economic standing of the indigenous people. The issue had assumed the proportions of a political issue and undoubtedly would be swayed by political arguments.
He said that within the constitutional reform process, the consultation process should be viewed as a meaningful one. During the dictatorship, the consultations drew unfavourable comments from the participants. The understanding of consultation had grown since then. Those who contributed to the constitutional reform process recognized the need to have more predictable inputs in the consultation process than there had been in the past.
Turning to the police, he said that during the dictatorship period the composition of the police force was almost 100 per cent Afro-Guyanese, and there had been much racial tension between security forces and the people. Today, that composition had changed minimally. Police brutality was an issue pertaining to the police forces and their relation to the arbitration of problems in the community. Its contribution to racial tensions must be examined differently in the context of the dictatorship period and the democratic period.
On the right to life, the Covenant and Guyana’s obligations under the Covenant, he said that that issue was part of an ongoing debate within the country. With respect to those condemned to hanging, it was the attitude of the judiciary to resort to what was inscribed in the law as final. There continued to be considerable work done to keep the issue of capital punishment before the people. There were many unresolved issues, which had assumed constitutional proportion. There was no doubt that constitutional reform and the deepening of the understanding of the respect for human life and other Covenant rights would continue to occupy the attention of the Commission on Constitutional Reform, to be created under the new constitution.
With regard to the state of the constitutional reform process, he said the process had started again under the aegis of the current administration and was close to completion. The recommendations made had been adopted by the Parliament. What was being done now was the groundwork to transform those recommendations into user-friendly language, which could then be incorporated into the new Constitution. The new Constitution was expected to be in place by the next elections scheduled for January 2001.
Further Comments by Experts
Noting that the Committee’s activities and those of the Government in the area of human rights and the Covenant were posted on a national Web site, an expert wondered how much of the population had access to computers and the Internet. To what extent had the police exercised the power to arrest in regard to cases of violence against women? he asked. What was the situation on police intervention to protect women against abuse?
He noted that it was stated that popular sentiment supported capital punishment and that respect for popular sentiment was part of ensuring human rights. However, in general, there was a common misunderstanding between the will of the people and protection of human rights. The Covenant called for the movement towards the abolition of the death penalty. The Government must educate the people in order to respect what was contained in the Covenant.
One expert requested further information on the conditions of daily life in the Belfield Girls’ School and on programmes enforced to prevent a repetition of delinquency.
Another expert wanted to know about the availability of newsprint and its regulation. Also, it appeared that education was now the sole responsibility of the Government. Did that mean there were no private schools? In addition, was there free legal assistance available to the poor? What was the state of education for the Amerindians?
Delegation’s Responses
With regard to computer accessibility, Mr. LUNCHEON replied that it was generally available in Guyana. However, it was not as widely available in the hinterland regions, as it was in the coastal areas. The information carried on the Web site was also disseminated in printed form, as the print media was still dominant in Guyana.
The police, he said, had the right to arrest under the Criminal Law Act and the Police Act. Sensitization of the police force was important in addressing domestic violence. There was a large number of social workers and counselors involved in the enforcement of the Domestic Violence Act, and their interaction with the police had contributed to raising their awareness.
He said that the Belfield Girls’ School no longer existed and had been changed to the Women’s Leadership Institute. On publishing questions, he said that there were licenses and regulations that would have to be recognized in the world of publishing. However, those regulations had not created, in the current administration, any difficulties for publishers and the print media. The easy access to print materials had not been hindered by the existence of those regulations.
The laws in Guyana, he continued, were silent on the provision of legal aid not related to specific circumstances. Non-governmental organizations were active in providing legal aid to the poor, but were subject to several inadequacies.
With regard to the education of Amerindians, he said that since 1992, consistent efforts had been made to address the educational standing in Amerindian communities. Previously, they had never had secondary education. Now, secondary education was being provided in many communities, and many were being brought to the coast for post-secondary education.
Moving on to clarifications sought by experts on Friday, he said that the establishment of the Caribbean Court of Appeal was another tool for enhancing the independence of the judiciary. Lay magistrates would be appointed by the Judicial Lay Commission. Under the proportional representation system and the list model, the current Constitution allowed for the leader of a list to appoint any member of the list to occupy the seat in Parliament won by that list.
Turning to prisons, he said the laws did not allow children to be imprisoned with adults. Observations made in the report referred to children on remand, who were awaiting their posting to a correctional institute, being housed in police stations. That period of waiting was often delayed, because those children might be coming from far away regions to the one correctional institute that was available for children in Guyana. Health care was provided for prisoners within the prisons, and hospitalization was made available for those who needed it. Many prisoners remanded after preliminary investigations spent years in remand awaiting trial. Efforts were being carried out to address that terrible injustice.
Mr. LUNCHEON acknowledged the problems of prison overcrowding raised by the Committee. Regarding non-custodial sentencing, there were new laws and enlightened attitudes being advanced in respect to the granting of parole to prisoners. He said he had a problem with the assertion made on Friday that torture was commonplace in Guyana and that it was used to extract confessions. Magistrates resorted to legal manoeuvres to address the admissibility of such evidence in court.
He said that there had been 20 extrajudicial killings over the last two years at the hands of the security services. The number, however, had been decreasing over the years. He did not, however, possess specific information on the names of victims given by the Committee on Friday. Commenting on the procedures in the cases of death at the hands of the security forces, he said an administrative mechanism for investigation was required by law and had been in place ever since he could remember. That mechanism was used to confirm or not confirm whether the use of force was justifiable by the security forces. The State resorted to a legal pronouncement on culpability when there were incidents where doubt existed. Those processes were often lengthy, because what was being dealt with was an instrument that had tremendous impact on the lives of Guyanese.
He said he was not aware of any political persecution. Also, there was no specific protection afforded to media workers. That was not to say that such protection was not provided for in the Constitution; it was just not dedicated to media workers.
Regarding the questions raised on women, he said this morning a document had been circulated that dealt with the place and role of people in the society and the constitutional reform recommendation pertaining to women’s participation in society. Also, the issue of debt bondage that was alluded to, where women were exchanged or subjected to bondage as repayment of a debt, was not practised in Guyana and was unknown to Guyanese. That allegation would have to be investigated.
While corporal punishment was not explicitly forbidden under Guyanese law, it was also not explicitly practised in schools, he said. It had, however, not been the subject of reviews in the courts.
He said ethnic relations were receiving the highest consideration in the constitutional reform process. The aim was to restore ethnic health and tolerance in the society.
An expert said there were many issues raised on Friday that had not been fully addressed by the delegation. The delegation had conceded that children under 10 could be detained for considerable periods and she expressed concern over that. Regarding torture and police brutality, she said a number of specific examples had been raised. She cited the cases of Mark Brown and Natasha Nephews. She had hoped that this morning more specific information on the numerous allegations would have been provided, including investigations and prosecutions on the allegations of torture, brutality and killings by the police. The delegation had also been asked about the sensitization of police in regard to domestic violence and to clarify whether legal aid was available.
Another expert said police brutality was not the same as the allegation of systematic torture. There was a lot of information on specific cases of the latter, and Committee members wanted more on that, or at least an assessment by the delegation on it.
The expert said there was the gap between the wording of the Covenant and the reality of a person being promptly brought before judge upon arrest, in light of the discretionary power of the police who could bring a person before the court when it was considered "reasonably practicable". Commenting on a person’s enforceable rights to compensation if arrested unlawfully, he wanted to know to whom could claims be directed. Was it police officers or the State?
Mr. LUNCHEON said the documents circulated this morning addressed some of the issues. The laws of Guyana, with respect to legal representation at pre-trial hearings, clearly established the rights to counsel. When a person came before a high court or court or appeal without legal representation, the State must assign counsel and pay for that person to represent the accused.
Regarding the enforceability of compensation, he said that intruded into the area of civil law. Only by application to a court could such compensation be addressed. If a detention was deemed unwarranted, it was not automatic for compensation to be paid. The writ of habeas corpus was generally filed 72 hours after the detention of subject. It was extremely unusual for a person being detained to be held without a writ being filed against them. Detainees were either released or charged within the prescribed period.
Regarding the issue of police brutality, he said the statistics asked for were not easily available, since the Government did not make any special effort to collect and record any such allegations. As a category of human rights abuse, incidents of police brutality were not routinely collected by the State.
CECILIA MEDINA QUIROGA (Chile), Chairman of the Committee, said she sincerely regretted that the report presented in 1999 only had information up until 1987. As pointed out, there had been a dictatorship up until 1992 in Guyana. The Committee would have liked an account of what had happened in that time. Committee members sent out the list of questions well in advance. Those questions were really not answered specifically, and the responses had been very general.
She noted that the recommendations of the Commission on Constitutional Reform were legally binding. If they were, then they were formulated in very general terms. Even so, it was very clear what remained to be done. Based on what the recommendations advanced, there was still a lot missing in terms of the Constitution’s relationship to the Covenant. Many categories of people had also been omitted from the law project.
Mr. LUNCHEON said since 1992, in any consideration of Guyana’s reality since the onset of democracy, the most modest of analyses must recognize the country’s accomplishments. The meeting that ended today had provided considerable opportunity for Guyana to make the right decisions and appropriate adjustments in bringing itself in compliance with its obligations.
It would not, however, happen immediately. It would, thus, be ill-advised to expect that Guyana could sit before the Committee next year any say that every single aspect of its obligations had been addressed. His country’s commitment would have to be a measured one, in consonance with its capabilities and the support received in addressing the fundamental and critical issues of national life.
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* The meeting number in Press Release HR/CT/557 of 24 March should
read 1829th. The 1827th and 1828th meetings were closed, respectively.
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