Saturday, July 4, 2009

Brynmor Pollard: Folly and Civic Irresponsibility on the Issue of Corporal Punishment in Guyana

Dear Editor,

I had mentioned before that an astonishing degree of activist subterfuge has driven the CRC-driven effort in various states thus far. It thrives on the unawareness and unpreparedness of citizens. As context, the reader will be astonished to know that the High Court in Israel accepted no submissions, took no evidence, considered no memoranda, and ruled on the issue of CP while considering another case altogether. Brynmor Pollard, in his letter (SN 2/04/08) does not disappoint. In Pollard’s comments we have a citizen choosing to ignore the horror stories and urging the Government to tolerate same “in the best interest of the nation”. This is folly!

Good law is based on good data. The online dossier “THE CASE FOR CORPORAL PUNISHMENT IN GUYANA” ( ) seeks to provide politicians, social leaders and legal minds with a concise framework of references around which a national consensus can be engineered.

In responding to a letter by another legal luminary in Guyana, Keith Massiah, on the same subject, (see “Former Guyana Chief Justice Massiah has it all wrong on the Corporal Punishment Issue”; ) I had alluded to the very narrow legal vision of that pronouncement. Massiah had, as Pollard now does, in fact chosen to ignore a plethora of attendant issues. This type of vision, it is easy to argue, never promotes good social policy and the national ethos. It illustrates profound civic irresponsibility.

This latest letter by Mr. Pollard is therefore significant, and indefensible, on several clear grounds, outlined below. In seeking to advocate that Guyana ceded sovereignty to the CRC via “procedural technicality”, and his calculated omission of opposing legal precedent, his prescriptions (see points 1-3 below) again border on civic irresponsibility and minisinformation:

Firstly, Mr. Pollard advocates that the provisions of the Guyana constitution, specifically Article 154A which intends to safeguard Guyana’s sovereign right to implement partially or progressively any Treaty or Convention, are somewhat flawed and obnoxious. Where does he derive this rationale? No other place than his unsubstantiated “reservations” that local constitutional provisions taken at the international level may not apply. This is barely disguised deception, since it attempts to legitimise a net disincentive for countries to participate in UN Conventions. It would portend anarchy. No International Treaty wants to be known as the harbinger of anarchy. As outlined in the open letter “Statement Rejecting Ban on Corporal Punishment In Guyana”; ) efforts thus far to rationalize this line of thinking have implicitly, and naively, suggested that Guyana ceded sovereignty when acceding to the CRC.

Secondly, Mr. Pollard notes the report “This Group has ignored the opposing evidence on the issue of corporal punishment”; of March 27”, but ignores the issues therein. Instead, he invokes ghostly and shadowy “legal effects of Caricom States having ratified the Convention on the Rights of The Child “without reservations”. In doing this he is similarly evasive, since, given his legal expertise, he chooses not to reveal the fact that the UN Charter itself states that "Nothing contained [herein] shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter."(U.N. General Assembly Resolution 1514 (XV), December 14, 1960). And a 1960 General Assembly Resolution states that "All peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory."(General Assembly Resolution 52/119, December 12, 1997). These Resolutions were done “without reservation”, possibly with an express intention to thwart anarchy via “procedure”. How does Pollard’s own hesitation now fly?

We now urge all social and political leaders to treat as required reading the Heritage Foundation Report "How the UN Conventions On Women's and Children's Rights Undermine Family, Religion, and Sovereignty"; We do not have to blindly stumble into the bad CRC-experiences of other states. If any of the numerous claims therein are true, there is reason enough to reconsider accession, or else engender a tactical withdrawal to rejoin later with “reservations”. Guyana must not, and cannot, be held hostage to a Convention that has been proven to be anarchical and injurious to the national ethos in many other countries.

Thirdly, Johnny (CJEAP 2005) reveals that the CRC-issue was also given due weight in a more recent dispute involving the rights of parents and teachers to use minor corrective force on children. In the case The Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General, 2004, SCC 4) the Supreme Court questioned whether section 43 of the Criminal Code, which permits the use of reasonable physical correction on children (much as Guyana’s Ministry of Education’s Policy Manual?), violates the best interests of the child principle set forth in the Convention on the Rights of the Child. Based on the notion that the Convention describes best interest of the child as ‘a primary consideration’ rather than ‘the primary consideration’ the court found that this principle was not a foundational requirement for the dispensation of justice. However, it did draw upon international law to interpret whether relying on ‘reasonableness’ as a limiting factor in section 43 was constitutionally vague. The court noted “precision on what is reasonable. . . may be derived from international treaty obligations” (Human Rights Internet, 2004b). To this end, in addition to the Convention, the courts examined the International Covenant on Civil and Political Rights, the Human Rights Committee of the United Nations Reports, and the European Convention on Human Rights. It found that these agreements neither clarify reasonableness nor require state parties to ban corporal punishment. What, exactly, gives the CRC precedence over previous Treaties and Declarations? What about if the words “corporal punishment” are not in the CRC text itself?

Giving the CRC “due weight” in Guyana surely does not mean the subversion of the national ethos, and surely does mean that existing constitutional provisions for partial and/or progressive implementation are to be respected.

Implementing the CRC blindly in Guyana will negatively affect the culture and religion of a vast majority of the people of Guyana. Surely this is bad law. The evidence speaks for itself. The government and opposition must at this time find the unity necessary to effect constitutional change consistent with Article 164 of the Constitution. Or else we should move to referendum. Or consider withdrawal from the CRC, if only tactically, to ensure that Guyana’s new accession with reservations are respected.
No country should be held hostage to UN Committee pronouncements made after the signing of the Convention.

Yours faithfully
Roger Williams
4th April 2008

No comments:

Post a Comment