Constitutionalism for Guyana

Once again, “constitutional change” will be on the national agenda. Constitutions describe the allocation of state powers among the various branches of Government, as defined by the Constitution itself; prescribe the rules by which those powers would be conferred, and also include procedures by which the Constitution may be altered. In a fundamental sense, therefore, a Constitution is, or should be, the embodiment of the social contract crafted by the peoples of a country for their governance. In a divided society such as Guyana, it is most important that the institutions created by the social contract are seen as just: “justice is the first virtue of social institutions, as truth is of systems of thought.”
It is ironic that the British, who have done so much to entrench the idea of modern Constitutions as written rules that all citizens of a State have to be governed by – the rule of law – themselves do not have a written Constitution. The anomaly, however, should remind us that rules, in and of themselves, may be necessary, but are not sufficient to ensure the consent of the governed. The rules have to be embedded within, and be supported by a wider political culture that gives life to the rules. This British idiosyncrasy of doling out written Constitutions to its colonies while refusing to do the same for itself masked the reality of the need for the development of the wider network of informal traditions, accommodations, informal quid pro quos that make the British unwritten constitutional rules function. It also discouraged most of the lawmakers who were educated and socialised in the British system from appreciating the other reality: that constitutional rules of the game cannot be changed willy nilly.
Western Constitutionalism arose out of the struggle for personal freedom and escape from the arbitrary political will. Guyanese should certainly resonate with this struggle. Constitutionalism is a foundation stone of Liberalism, and defines a political scheme in which law, rather than men, is supreme. Political authority is exercised according to law, which is to be obeyed by all, including the governors, who cannot depart from it by whim. By definition, then, a constitutional government is a limited government.
We Guyanese should accept, after our history between 1964 and 1992, that the fundamental problem of organised society is of the use and abuse of power – how men may best prevent its abuse, and direct it to good ends. This notion is rooted in the fallibility of man… the belief that no man or group of men is good enough to be entrusted with absolute power over other men. This tendency is exacerbated when a country has groups that are racially or ethnically different, as in Guyana, since it becomes so much easier to demonise the “other”, and resort to extreme measures to assert one’s position.
The Constitution can be regarded as a social contract agreed to by the Government, and which defines its legitimate political actions. This implies that all State power emanates from the people, and that sovereignty and all reserved powers remain with the people. Constitutionalism, then, is infused with the ideology of Liberalism, which views men as naturally free and right-bearing individuals who need and establish governments that they can, may, and should, control. Additionally, the ideological telos, as indicated by the protection of property rights, favours private capitalism; but, as mentioned before, allows a great deal of flexibility towards the socio-economic system.
The Constitution can be used as a tool to engineer the political behaviour of the political participants: “engineer”, as Webster reminds us: to use tact, craft, or ingenuity to achieve a result. The premise of this “constitutional engineering” is that the rules of the political game can be structured to accomplish three tasks: institutionalise moderation on divisive ethnic themes, contain the destructive tendencies, and pre-empt the centrifugal thrust caused by ethnic politics. We have to state our democratic objectives; choose institutions which may deliver them, and then incorporate those rules in our Constitution.