Dear Editor,
Lincoln Lewis obviously did not read my letter directed at him (‘Lewis has to stop peddling his notion…’ SN, November 14) . He says my letter “is absent supporting evidence to negate my consistent position that the Guyana Constitution be respected and enforced” (‘An inconsistency in thinking,’ SN, Novermber 17). 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% of the voting age population in a fixed referendum. What more evidence does Mr Lewis want that this constitution is an illegality and cannot be respected and enforced with any legal or moral force? He does not comprehend the difference between de facto and de jure constitutionality for if he did, he would not be peddling this simplistic 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.
The very notion that because one is trapped under de facto constitutional architecture lacking inherent legitimacy, one must respect and enforce the constitution and in doing so legitimize its inchoate fraudulence is exactly the kind of thinking that entrenches authoritarianism. Mr Lewis’s idea that this constitutional artifice should be clothed in legality 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 one lives, or is forced to live, within the confines of the state captive to the constitution. 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.
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. 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.
Mr Lewis quoted Article 119A, which deals with constitutional reform. What he 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. 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 – can prorogue and dissolve the Assembly at will, without reason and on a whim. The selection of the various commissions Mr 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 require executive/presidential consent. 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 systemic operability. The courts will write judgements on it. But it remains incipiently fraudulent, illegal and immoral. In parting, where are the legal minds of this country to lead this discourse? Non-attorneys like Mr Lewis and myself should not be leading this discussion.
Yours faithfully,
M Maxwell
