Constitutional reform: subsidiary devolution

Desmond Hoyte was correct when in his 1980 ‘State Paper on the Re-organisation of the Local Government System in Guyana’, he claimed that the worst defects of the extant system were that it was not informed by a ‘coherent philosophy’, but his effort at local government reform demonstrated that adherence to a coherent philosophy such as liberal democracy, Marxism/Leninism or cooperative socialism, must also be rooted in an adequate understanding of the nature of a given society if it is to succeed.

According to Hoyte, the system was too centralised, did not allow the vast majority of the citizens to be involved in the management of their affairs, lacked the level of self-sufficiency necessary to cope with the enormous developmental challenges, e.g. local authorities depended too much on rates and taxes, which were insufficient for them to provide adequate services to citizens. But even with those sensible observations, Hoyte proceeded to construct a system that was still very centralised although in keeping with the liberal democratic norms of his day.

Notwithstanding their rhetoric about their commitment to local democracy, from the standpoint of the centralization of power, the local government reforms of 2013 did little to improve upon Hoyte’s intervention. The reforms involved merely removing control from a central authority called the Minister to one called the Local Government Commission. For instance, by the Local Government Commission Act 2013, the Commission has powers ‘to deal with all matters relating to the regulation and staffing of local government organs including employment and dismissal of staff and with dispute resolution within and between local government organs, and in particular shall …. monitor and review the performance and implementation of policies of all local government organs, including policies of taxation and protection of the environment; monitor, evaluate and make recommendations on policies, procedures and practices of all local government organs in order to promote effective local governance; investigate any matter under its purview and propose remedial action to the Minister’ ( https:// mlgrd. gov. gy/ wpcontent/ uploads/ 2017/ 10/ local- government- commission-act.pdf).

Indeed, given the manner in which the commission is appointed, it is not unreasonable to conclude that the government controls it. The commission consists of eight members to be appointed as follows: (a) three by the president acting in accordance with his own deliberate judgement; (b) three by the president, acting on the advice of the leader of the opposition after consultation with other parliamentary parties; (c) one appointed by the president, after approval by the National Assembly upon a nomination by the Parliamentary Standing Committee on Appointments from persons submitted by trade unions within the local government system and one appointed by the minister after consultation with local democratic organs (ibid).

This general tendency towards formalism, establishing institutions for appearances sake, may largely result from regimes’ incapacity to win national/parliamentary consensus to entrench more appropriate measures in an highly divisive ethnic state. Thus, as we have seen recently in the case of the State Assets Recovery Agency, once one party gets back into government it can easily dismantle an institution that was investigating its behaviour when previously in office! Such ease of wholesale dismantlement and proposed reestablishment with new personnel should not be possible, regardless of the shortcomings of the existing institution!

In 1980, Hoyte did not understand the ramifications of the uniqueness of Guyana, a country in which two large ethnic groups that control over 80% of the electorate are struggling for political power by way of a majoritarian political system, and today the political leadership still do not. The political/ethnic dilemma that results from this configuration has in every country been similar: with varying levels of hostility neither group wants the other to rule it. In Guyana, sharing power is the only way to overcome the national ethnic political rhetoric of the different sides in order to establish creditable institutions to foster improved cooperation, accountability and development.

This difficulty noted, properly structured to prevent local institutionalised discrimination and allow communities’ maximum control of their existence, devolution, based upon subsidiarity, could facilitate a greater level of cooperative living. There are several versions of subsidiarity, with very different implications for the allocation of authority. They differ as to the objectives of the member units and the central authorities, the domain and roles of member units, how they allocate the authority to apply the principle of subsidiarity itself and how they conceive of the relationship between different levels of political authority. However, its key principle is that the central authority should have a subsidiary function dealing with only those tasks that cannot be dealt with effectively at the local level and that matters ought to be handled by the smallest, lowest, or least centralised authority capable of addressing them effectively (Future Notes: SN: 21/08/2013).

As a practice subsidiarity is not a new: it has been part of Catholic social teaching for over 100 years. Catechism of the Catholic Church (#1919) states ‘The principle of subsidiarity is a teaching according to which a community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its functions, but rather should support it in case of need.’ And the present Pope Francis in Evangelii Gaudium, #240, 2013 noted ‘It is the responsibility of the State to safeguard and promote the common good of society. Based on the principles of subsidiarity and solidarity... it plays a fundamental role, one which cannot be delegated, in working for the integral development of all’ (https://caritas.org.nz/catholic-social-teaching/subsidiarity).

The Treaty on European Union (TEU) requires that ‘the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.’ And subsidiarity has been part of European Community law since its inception as the European Coal and Steel Community. It was introduced into the European Union because the individual states were concerned that the Commission was overreaching, and it now is prominent in Community law.

What is of interest to me is that to help to ensure that the Union does not overreach there is now an early warning mechanism that gives the national parliaments a central role in monitoring how proposed legislation complies with the principle of subsidiarity. This mechanism provides a legal framework of rights, obligations and deadlines. So that each national parliament within a stipulates short period of receiving an EU proposal to extend its reach may provide a reasoned opinion, setting out why it considers a proposal as violating subsidiarity. This legal basis for establishing the need to extend competences when state action is insufficient helps to improve the legitimacy of the system as a whole ( file:/// C:/ Users/ Owner/ Downloads/ admsci- 1000024%20(1).pdf).

It should be noted that we are considering a situation in which the state is devolving power to the regions and other local authorities and not vice versa. As such as stated above special attention needs to be given to the objectives of the member units and the central authorities. Therefore, devolution based on subsidiarity suggests national, regional and local discourses about what is best done at the various levels and the establishment of legal mechanisms to ensure that these are not unduly encroached upon.