Constitutions, Constitutionalism and Constitutional engineering

Constitutions, Constitutionalism and Constitutional engineering

Photo : Ravi Dev

The Roar of Ravi Dev

While Guyanese on both sides of the divide are complaining about “governmental abuse”, they need to be reminded they have the power to constitute their government any which way they want through the crafting of a constitution. And to insist their rules be followed. Constitutions describe the allocation of state powers amongst its various branches as defined by the constitution itself; prescribe the rules by which those powers would be conferred and also includes procedures by which the Constitution may be altered.

In a fundamental sense, therefore, it is, or should be, the embodiment of a social contract crafted by “we the people” for our governance. In a divided society like ours, it is critical that the institutions created by the social contract are seen as just in the allocation of power - or they will be seen as illegitimate, and contested.

However, the British idiosyncrasy of an “unwritten constitution” should remind us that explicitly stated rules, in and of themselves, may be necessary but are not sufficient. The rules have to be embedded within and be supported by a wider political culture that gives life to the rules in developing the wider network of informal traditions, accommodations, informal pro quid quos that make stable societies function.

“Constitutionalism” 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. British constitutionalism arose out of the struggle for personal freedom, and escape from arbitrary political will, while Continental Europe focused more on the self-determination of each group. Guyanese should resonate to both these imperatives.

We should also recognize, after our recent history, that our fundamental problem is of the use and inevitable abuse of power - the challenge is prevent that 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, should be entrusted with absolute power over other men. This tendency is exacerbated when a country has groups that are racially or ethnically different, as Guyana, since it becomes so much easier to demonise the “other” and resort to extreme measures to assert one’s position.

The constitution, as a social contract, defines government’s legitimate political actions. This confirms 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. But in Guyana, we also belong to groups that bequeath identities that must be respected.

In Guyana, where we cannot pretend that our values were shaped by some commonality looming out of a hoary past, it should be self-evident that the several groups need to sit down together and craft an appropriate social contract and this is where “constitutional engineering” comes in.

As stated above, the constitution of a country allocates and limits the powers devolved by the citizens to the institutions of the state and also specifies the rules and procedures for selecting officers who are to authoritatively exercise such powers. As such the incentives for creating a New Political Culture would have to be built into a Constitution. This conscious “Constitutional Engineering” is now a major tool in the kit of state building and functional political behaviour. For Guyana, the rules of the political game can be structured to accomplish three tasks: institutionalise moderation on divisive ethnic themes, to contain the destructive tendencies and to pre-empt the centrifugal thrust caused by ethnic politics. We have to state our democratic objectives up front and choose institutions, which may deliver them and then incorporate those rules in our constitution.

The point of course, is that effective constitutions have to originate in the genius of the people confronting the exigencies of their circumstances. What we are proposing is that the democratic state Guyanese hope for will not just fall into our laps. We have to self-consciously struggle to craft it.