Prolegomena for Constitutional Design

 

Government has finally tabled a Bill for initiating its long-promised constitutional change. It will authorise a broadly-based Constitutional Reform Consultative Commission to accept submissions from across the country. Guyana has experimented with various constitutional arrangements, starting with the constitution it was given by Britain at Independence on May 26, 1966.

 That it has become clear that further changes are necessary should not be surprising.  As far back as the 18th century, the philosopher Immanuel Kant succinctly posed the dilemma of constitutional design in these terms: “The problem is, given a multitude of rational beings requiring universal laws for their preservation, but each of them is sincerely inclined to exempt himself from them, to establish a Constitution in such a way, although their private intentions conflict, they check each other, with the result that their public conduct is the same as if they had no such intentions.”

 The initiative, or set of initiatives, that will be offered to address Guyana’s political crisis in the coming hearings will have to engender broad acceptance across the political, ethnic and other divisions in the people, and especially among the politicians. This implies that the various groups, as they define themselves, would have to agree on the proposals for establishing the institutions to govern them.

Guyanese are attuned to the British contractual tradition of Liberalism, which envisages individuals bargaining rationally to produce a “contract” that would protect their interests.

 Kant, then, was proposing that the solution to the inevitable conflicts in organised human societies such as ours lies in the design of appropriate institutions. Kant proposed that institutions, as with all normative behaviour, would have to satisfy some moral principle to which all citizens can more or less agree. Unless we have this moral commonality, no constitution will be able to bring stability to Guyana.  Kant called his touchstone moral principle the “categorical imperative” – a principle of justice.

 Most commentators who followed him agreed with his stricture: that institutions constituting a state must be organised in accordance with the principle of justice; but there were interminable discussions as to whether particular proposals satisfied, or did not satisfy, the “categorical imperative”.

John Rawls, the most influential of modern liberal political philosophers, came up with another formulation to guide the formation of social institutions nearly two centuries later, in 1971. It had the great virtue of simplicity, and we commend it to Guyanese as they embark on their search for a more appropriate constitution.

 In the opening line of his first section in his magnum opus, A Theory of Justice, Rawls boldly declared that the principle of “justice” is the standard that would generate the broad acceptability for the establishment of any institution necessary to implement any initiative for enduring stability: “Justice is the first virtue of social institutions, as truth is of systems of thought.” Recognising that Guyana does not even reach Rawls’s definition of a society as “a cooperative venture for mutual advantage, it is typically marked by a conflict as well as by an identity of interests.” His definition of “justice” is very pertinent to our effort to construct a democratic state in Guyana: “…a way of assigning rights and duties in the basic institutions of society, and they define the appropriate distribution of the benefits and burdens of social cooperation.”

 More importantly, Rawls introduced a methodology for arriving at substantive principles for making decisions in divisive situations, such as we have in Guyana, where it is vital that the decisions are seen as not favouring any one constituency. Procedurally, Rawls proposed that we make our suggestions about the fundamental principles that would structure and govern society from behind a metaphorical “veil of ignorance”, which precludes us from taking into consideration our personal position, class, gender, race, religion, even intelligence or interests in the matter under consideration.

 With such principles, we would be willing to go along even if our opponents assign us positions in the society arising out of the contract.