Latest update April 19th, 2024 12:59 AM
Nov 23, 2014 Letters
Dear Editor,
I am responding to Lincoln Lewis’ letter titled “An inherent behaviour of politicians is to misapply the constitution to justify dastardly acts” (KN, November 17, 2014), which is a response to my letter titled “Lewis has to stop peddling the notion that attacks on the Burnham constitution are uncalled for”. Lincoln Lewis obviously did not read my letter directed at him. He says my letter “is absent supporting evidence to negate my consistent position that the Guyana Constitution be respected and enforced.” I clearly stated in my letter that the current constitution is fraudulent, illegitimate and illegal. It was drafted by an illegal dictatorship and supported by only around 10 percent of the voting age population in a fixed referendum. What more evidence does Lewis want that this constitution is an illegality and cannot be respected and enforced with any legal or moral force? Lincoln Lewis obviously does not comprehend the difference between de facto and de jure constitutionality for if he did, he would not be peddling this simplistic and, quite frankly, irresponsible and dangerous discourse.
A de facto constitution is one which exists as a matter of fact but is unlawful and illegitimate. This aptly describes the 1980 constitution. A de jure constitution is one which is lawful, given the force of lawfulness by a full participatory democratic referendum. A de jure constitution is also a de facto constitution. A de facto constitution is not a de jure constitution. Guyana has never had a de jure constitution. Once the citizenry resides within the state governed by a de facto constitution, they are bound by its existence. This does not mean they morally or legalistically endorse that constitution, nor does it imply the constitution is legal or moral; it simply means the citizenry operates under that constitution. That illegitimate de facto constitution remains the constitution of the land until it is replaced by a de jure constitution. Thus, one can operate under a constitution while maintaining it is without legal and moral validity. For example, in order to travel in their own land, Black South Africans operated under the apartheid pass laws. This was not respect for or enforcement of the law but mere movement within it because at the end of the day, the law was imposed on the oppressed without their approval and consent and they needed to go to work, school and to their economic and leisure activities.
The very notion that because one is trapped under a de facto constitutional architecture lacking inherent legitimacy, one must respect and enforce the constitution and in doing so, legitimizing its inchoate fraudulence is exactly the kind of thinking that entrenches authoritarianism through starkly simplistic black and white fallacious thinking. Lewis’ idea that this debacle of a constitutional artifice should be clothed in legality is riotous, for it not only enables the PPP to escape accountability, it also cleanses the PNC of its litany of abominations. For anyone to not view this constitution from the de facto versus de jure stance is downright capricious. We cannot legitimize a congenitally illegitimate constitution. We simply cannot. We may operate under it for the next fifty years but it will not alter in a single iota its immanent illegality. One can disrespect the constitution and condemn its enforcement because of its innate illegality but still utilize it for practical purposes because they live, or are forced to live, within the confines of the state captive to the constitution. Practically speaking, refusal to be bound by illicit laws is risky when opposing sides in a dispute (citizen or government) will rely on it to the peril of that individual’s life, liberty or property. A people cannot be forced to morally accept illegal laws or to view them as legal no matter how freely they operate within those laws. People must be entitled to moral outrage at and rejection of illegitimate laws even as they are forced by circumstances to condone and operate within them. A law (constitution) created out of authoritarianism, and particularly so with no majoritarian affirmation when that is necessary, cannot be legal in the true sense of legality as conditioned on morality, democratic expression, fairness, justice, proportionality, balance, equality and democracy. It will always operate within a pretentious environment of dictatorial de facto illegality.
Contrary to what Lincoln fears, the next government will prosecute the PPP under this de facto constitution and it will invoke the right to do so based on the de facto power that has guided this nation for the past 34 years, but the constitution remains and will remain an ingrained illegality at its heart. The constitution does not have to be legal to hold the government accountable. It has to exist and operate in de facto fashion to suffice. Just as the PPP has used this de facto constitution to prosecute the citizenry, this de facto constitution will be used to prosecute the PPP. Operating within the de facto ‘law’ is not respect for it. It is what the oppressed do in classic philosophical quest for survival. Lewis should know this because this is a nation built on slavery, indentureship and subjugation. To suggest, in feckless fashion, that our ancestors should have respected and enforced the illegitimate laws foisted upon them without their democratic participation or consideration of their voices, is to preach an atrocious form of legitimizing authoritarianism. An illegal constitution in practice, no matter how frequently applied and embraced, remains an illicit constitution at its heart. The recent act of prorogation of a legislature by a minority executive president highlights the de facto versus de jure distinction that must be made by society.
Lewis quoted Article 119A, which deals with constitutional reform. What Lewis does not highlight are the blockages to constitutional reform in this de facto constitution and further, the gravity of executive interference in achieving constitutional reform. Contrary to Lewis’ ranting, a people cannot activate a constitution that enables executive robbery and suppression of that power. Lewis continues to huckster this fallacy. People power does not exist under the 1980 constitution. People power is subject and secondary to executive power. The people elect the National Assembly and the President and the President, minority or majority president, can prorogue and dissolve the Assembly at will, without reason and on a whim. The selection of the various commissions Lewis references are politically driven with inordinate power resident in the president in this regard. The non-establishment of these commissions reflects the torment that is executive power stymieing people power. The selection of the dominant power roles within the judiciary requires executive/presidential consent. It is flaccid logic and depraved morality to try to give legality to this constitution, an act that gives legitimacy to the last 34 years of misery and venality. The constitution is here as a fact of life. We are forced to live within it and its heinous manifestations but we cannot legalize or moralize positively on it. We will operate within it until it is radically changed. We will rely on it for practical reasons until it is replaced with a legally chosen constitution. We will not respect it or enforce it out of any legal or moral duty but out of mere survival and mere systematic operability. It remains incipiently fraudulent, illegal and immoral. The slave-owners of America did not give their president the destructive powers the progeny of slaves and indentured servants in Guyana gave theirs. In parting, where are the legal minds of this country to lead this discourse? Non-attorneys like Lewis and myself should not be leading this discussion.
M. Maxwell
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