THE RIGHT TO WORK IS NOT JUSTICIABLE

February 16, 2013, By KNews, Filed Under Features / Columnists, Peeping Tom, Source

The new political dispensation that followed the outcome of the general and regional elections of 2011 has kept the courts very busy. A number of constitutional matters have been filed challenging the actions of the parliament and the actions of the government.

This trend seems likely to continue with the announcement by the Guyana Trade Union Congress (GTUC) that it intends to challenge the decision by the government to allow employment flexibilities to the Chinese firm that is building the Marriott Hotel in Georgetown.

The umbrella body for trade unions in Guyana is contending that these flexibilities deny Guyanese the right to work. This newspaper reported that no Guyanese workers were employed in actual construction work at the site; the constructions workers are all from China.

The GTUC indicated that it will be filing a constitutional action against the government because the actions of the government amounts to a denial of the right to work for Guyanese and the right to work is a right guaranteed under the constitution.

The Guyana Trade Union Congress should not waste its time and the courts’ time by filing such an action. The courts already have too much on their hands and any constitutional motion premised on the enforceability of the right to work will be dismissed at the preliminary stages.

The right to work is a right under our constitution. But it is not a justiciable right. In short, it cannot be legitimately adjudicated by the courts.

The right to work forms part of a section of the constitution that deals with the Principles and Bases of the Political and Economic system. Most constitutions have such sections that speak to the ideals of the State; things that the nation should aspire towards. At one stage, the constitution of Guyana noted that Guyana was in a stage of transition to cooperative socialism.

If that provision was justiciable, it would mean that the economic policies being pursued over the past fifteen years would have been subject to challenge.

The right to work forms part of a body of rights known as social and economic rights. Social and economic rights are in the main non-justiciable. These rights cannot be legally defined; they are vague and they are ideological not legal in content. As such they are not justiciable.

The courts are precluded from adjudicating on these rights because they relate to policy and not law. These rights are the concern of parliament and the executive not the courts.

The right to work is not a legal right. It is a political concept and is unenforceable. It is still a constitutional right because the socialists that were involved in the constitutional reform process were too ashamed to delete it for fear that it would signal and anti-labour posture.

The constitution of Guyana itself does not make the social and economic rights contained therein justiciable. It does not order that these rights be enforceable by the courts. Article 39 (1) simply urges that the various arms of the State, including the government, the parliament and the judiciary and all public agencies be “guided” by these principles.

Further confirming the non-justiciable status of these rights, the constitution notes that parliament may provide for them to be enforceable in any court or tribunal. Parliament has not so far done so and is not likely to ever do so.

The GTUC therefore has little chance of its constitutional challenge being successful. Even if the courts rule that the right to work is justiciable, the fact that the government has allowed the Chinese firm certain flexibilities does not expressly constitute a denial of the right to work.

Giving the Chinese an option to employ their own labour is not the same as saying they should use this flexibility to deny Guyanese the opportunity to work; it simply gives them the option of employing their own.

The problem has to be resolved by bringing the parties, the contractor, Government and the labour movement to the negotiating table. What is needed is a commitment from the Chinese that notwithstanding them having the right to employ whomever they feel fit to employ that they will utilize Guyanese workers in this project.

This is a matter for political negotiations; not the courts.