Conditions embodied in US determination of refugee status largely absent in Guyana

Dear Editor,

The right of asylum is an ancient juridical notion which can be traced back to the Greeks and the Egyptians. In general, it allows for the protection of persons persecuted for political opinions or religious beliefs in their home country by another sovereign country. Today, this right has been incorporated in the U.N.’s Universal Declaration of Human Rights which, while not a treaty itself, is considered as forming part of customary international law. Article 14 states that “everyone has the right to seek and to enjoy in other countries asylum from persecution.” Among the commonly protected grounds justifying a grant of asylum is persecution on the basis of: race, nationality, religion, political opinions and membership or participation in any particular social group or social activities.

Since the U.S. has granted asylum through its Refugee Admissions Program (USRAP) to more people than any other country in the world (USRAP has admitted refugees from over 60 nationalities who were processed in some 90 countries) it is relevant to examine the U.S.’ policies and programmes concerning the right of asylum, particularly as related to Latin America and the Caribbean.

To be approved as a “refugee” in the U.S., an applicant must meet the definition contained in Section 101(a)(42) of the Immigra-tion and Nationality Act (INA), which provides that a refugee is one who is outside his or her country of nationality or last habitual residence and is unable or unwilling to return to that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinions.

Throughout Latin America and the Caribbean, in 2009, the number of refugees, asylum seekers, internally displaced persons (IDPs) totaled over 4 million. Colombia generated the most significant numbers, approximately 3.3M—4.9M IDPs are estimated and more than 55,000 Colombians have been recognized as refugees in Panama, Ecuador, Venezuela and Costa Rica. In surrounding countries, there are about 400,000 asylum seekers and refugee persons. For instance, in Brazil, there are over 4,000 recognized refugees from 75 different countries. The main concern in Colombia is violence from illegally armed non-state actor groups and the lack of state presence to provide full protection.

In Latin America and the Caribbean, religious freedom is widely recognized and enjoyed according to the U.S. Proposed Refugee Admis-sions for 2011 Report to Congress. This Report lists Cuba as an exception, stating that its “government continues to place restrictions on freedom of religion” since “the Ministry of Interior…engages in active surveillance of religious institutions.” Among those Cubans eligible to apply to the U.S. are: (1) former political prisoners; (2) members of persecuted religious minorities; (3) persecuted human rights activists; (4) forced labour conscripts; and (5) persons deprived of their professional credentials or subjected to other disproportionately harsh or discriminatory treatment resulting from their perceived or actual political or religious beliefs.

These non-exhaustive concerns are largely absent in Guyana subsequent to the Government’s constitutional reform process culminating with the revised 2003 Constitution which made radical changes to the human rights and fundamental freedoms sections, and which guarantee everyone the basic human rights enshrined in international human rights instruments and customary international law standards such as the Universal Declaration of Hunan Rights. Such rights are to be respected by the executive, legislative, judicial and agency branches of government, which must pay due regard to general principles of international law, conventions, covenants and charters in regards to human rights. See Article 154A. Particularly noteworthy are the following Guyanese Constitutional Provisions:

1.  Article 138 states that “no person shall be deprived of his life intentionally save in execution of the sentence of a court.”

2.  Article 139 states that “no person shall be deprived of his personal liberty save as may be authorized by law.”

3.  Article 141 states that “no person shall be subjected to torture or to inhuman or degrading punishment or other treatment.”

4.  Article 145 states that “no person shall be hindered in the enjoyment of his freedom of conscience…[including] freedom of thought and of religion, freedom to change his religion or belief, and freedom, either alone or in community with others, and both in public and private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.”

5.  Article 146 states that “no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information…”

6.  Article 147 states that “no person shall be hindered in the enjoyment of his or her freedom of assembly, association and freedom to demonstrate peacefully…in particular to form or belong to political parties, trade unions or other associations…”

7.  78.  Article 148 states that “no person shall be deprived of his freedom of movement…the right to move freely throughout Guyana, the right to reside in any part of Guyana, the right to enter Guyana, the right to leave Guyana and immunity from expulsion from Guyana.”

8.  Article 149 states that “no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office.” Discriminatory means “affording different treatment…by race, place of origin, political opinion, colour, creed, age, disability, marital status, sex, gender, language, birth, social class, pregnancy, religion, conscience, belief or culture.”

9.  Article 149D states that “the State shall not deny to any person equality before the law or equal protection and benefit of the law…equality includes the full and equal enjoyment of all rights and freedoms guaranteed by or under this Constitution.”

10. Article 149F states that “every woman is entitled to equal rights and status with men in all spheres of political, economic and social life. All forms of discrimination against women on the basis of gender or sex are illegal.”

11.  Article 153 states that “if any person…alleges that any of the provisions of article 138 to 151 has been, is being, or is likely to be contravened in relation to him or her…that person…may apply to the High Court for redress.”

It is important to take into account that this comprehensive constitutional framework has been in place for a mere eight years and anyone reasonably familiar with the rigours of constitutional law would recognize that the effectiveness of constitutional reform cannot be judged in isolation or in terms of its immediate impact, but rather, must be judged overall, by its gradual, cumulative effect. What is undeniable however, is that the crux of the concerns embodying the U.S. eligibility determination of “refugee” status is largely absent in Guyana and that the specific Constitutional provisions addressing such concerns have been implemented by the current government’s administration of Guyana.

Yours faithfully,
Cheddi Berret Jagan II, Esq.