The “rule of law” is one of those phrases that Governments loves to use and our citizenry is very familiar with, but like “good morning” or “good afternoon”, has absolutely no bearing to phenomena invoked. This is rather unfortunate since it is this “rule of law” that has to be the foundation of any state we hope to establish in our long-abused land, where our people – brought here to labour as slaves and indentured servants or peripheralised into the jungles – can live with dignity.
What is the ‘rule of law”? Ultimately that citizens should be ruled by laws and not men and that no man – even a king – can be above to those laws. In Britain, which ruled us for hundreds of years, their move from the rule of an absolute monarch to their present “rule of law” took hundreds of year and saw a King beheaded. In Guyana, the process was not as conflictual and possibly, because of this, our citizenry are not imbued with the well-nigh reflexive opposition to threats to the rule of law.
The immediate problem arises with the word “ruled”. Since mere words articulating the law cannot actually execute them, it is left to the men who have to act under or according to the law and it is here that problems inevitably arise. Whether out of “human nature” from the “twisted timber” out of which we are made, or individual idiosyncrasies of those who are chosen to “rule”, the rule of law is almost always tested.
The “rule of law” has to begin with the “law” – the rules by which we are to be ruled, and ultimately these have to emanate from the will of the people if they are to be seen as legitimate and obeyed. The Supreme Law of the land is the Constitution, which “constitutes” the State that is supposed to rule the citizenry under its mandate. Properly, the widest possible agglomeration of the representatives of the people – social, political, religious, business etc – are supposed to be convened as a “Constituent Assembly” to draft this Constitution.
This draft Constitution should then be presented in a referendum to the people for approval. The present Constitution has never undergone this legitimising process and this should be rectified sooner rather than later. Arising from the need to always be careful of the dangers of power being centralised and taking on authoritarian characteristics, modern Constitutions invariably insist that the powers to rule the State be separated into the three functional areas of governance: Executive, Legislative and Judicial.
The Legislative branch is responsible for enacting the laws of the State and authorising the funds necessary to operate the Government. The Executive branch is responsible for implementing and administering the public policy enacted and funded by the legislative branch. While the Judicial branch is responsible for interpreting the Constitution and laws and applying their interpretations to controversies brought before it. The organisations that have these powers should be structured in such a way that they act as “checks and balances” on each other to ensure the rule of law is not violated.
In Guyana, we should see immediately that the Executive and Legislature are so conjoined and intertwined – with the Executive in control – that reform in this area is absolutely necessary. Much of the present overreach of the Government arises from this unfortunate state of affairs. For instance, in the recent initiative of the Government to form an institution to combat corruption – State Asset Recovery Agency (SARA) – the Legislature should have explicitly disqualified the appointment of “politically connected persons” to prevent political witch hunting and other conflicts of interest. It did not because the legislature is totally controlled by the Executive and the Director of the Agency is a co-leader of a party that is a member of the coalition Government.
The result will be a traducing of the rule of law.
