We live in interesting times. It had been an article of faith as former colonies of Britain, we were tutored for hundreds of years so that we could imbibe the principles of the “rule of law” – contraposed to the always precarious “rule of men” – to govern ourselves. But today, not only are some of those rules and traditions that undergird the “rule of law” under pressure here, but even at the fount of it all, in Britain. This is exemplified most recently by cases from the appellate division of both countries that hinge of the notion of where “sovereignty” resides.
Sovereignty, of course, is a foundational concept in the British notion of the rule of law since it had to do with where ultimate power was located, starting from the Monarch (“Sovereign”), who originally had absolute power. The famous statement of Louis XIV “I am the state!” exemplifies this latter condition: it was no different in Britain. The history of sovereignty is one of a gradual whittling down of that power, starting from the 13th century when the nobility forced King John to accept the Magna Carta to the Glorious Revolution of 1688 after which the earl of Shaftesbury could declare, “The Parliament of England is that supreme and absolute power, which gives life and motion to the English Government.” Sovereignty was in the representatives of the people, not in the people.
A century later, however, when the US was launched, their founding fathers explicitly declared sovereignty resided in the people, with aspects of it – as specified in a written constitution – delegated to the organs of the State, including the Government. Some think it is because Britain does not have a written constitution that Parliament is supreme but the conventions that govern its present workings could easily have been broadened to encompass that further devolution of sovereignty.
When Guyana and most of the former colonies became independent, they were given, or enacted constitutions that followed the US view of the geography of sovereignty and located it in “the people”. Unlike the case in Britain, where the court cannot overturn an act of Parliament, here in Guyana, with its delegated sovereignty from the people as co-equal to Parliament, this can be done under the principle of Judicial Review, if the law violated the Constitution.
In the past, this application was confined to specific stipulations of the Constitution that purported to spell out areas of national life with which the executive could not transgress: negative freedoms. In the US, however, their Supreme Court actually increased such areas on their own cognisance, for instance the “right to privacy” which they discerned in the “penumbra” of the stated Bill of Rights. More pertinently, that court and several others in former British colonies, followed the logic of sovereignty residing in the people and insisted certain decisions of the Legislature should be ratified by the people in referenda, when those decisions are fundamental to the ethos of the constitution as a whole.
It was from this perspective that Justice Ian Chang, determined our Parliament cannot restrict the choices available to the sovereign people as to who they may chose as their President as Article 90 by Act No 17 of 2001, which it passed, did. He ruled that the people themselves should make such a decision via a referendum.
In Britain, however where Parliament is supreme, as their doyen of constitutional law summarised, Parliament had “the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament”. Thus, if their Parliament passed a law signing Britain up to the EU, which it did in 1973 – and in the process changed some fundamental aspects of their Constitution such as creating a new source of British Law – then they need to pass a law undoing it, as their Supreme Court just declared.
