What is to be done when the sovereign is ignored?

Since Dr. Roger Luncheon invoked political sovereignty in response to the United States’ refusal to discontinue the leadership and democracy project, I began to pay a keener interest to this concept and my observations should be of interest, particularly as we celebrate our Republican status.

The claim to political sovereignty – supreme power or authority over a geographic area and its people – is widespread in the international community but usually comes from highly questionable and/or frustrated political leaders and activists, either as a defence against questioned policies or in facilitation of some preferred goal. As I write, Russia is making it in favour of the Ukrainian government (the leader of which has now taken to his heels) against what they view as European Union intervention in the long-running political protest taking place in that country.

20140101henryIn theory and practice, the notion of sovereignty has evolved over the ages and the origin of the contemporary international system of states within which it is nowadays invoked is usually seen as the 1648 Peace Treaty of Westphalia and Osnabruck, which ended the Thirty Years War in Europe. In a nutshell, that treaty recognised that our world is divided into specific self- governing geographical political communities in which the government is entitled to supreme, unqualified and exclusive political and legal authority. Of course, as indicated, both nationally and internationally, much has changed since 1648: sovereignty is much more limited and it is almost universally recognised that it lies not with royalty by virtue of some heavenly dispensation but with the people.

Thus, the preamble to our present Constitution effusively says “We the Guyanese people, proud heirs of the indomitable spirit and unconquerable will of our forefathers, in a spirit of reconciliation and cooperation, proclaim this constitution in order to: safeguard and build on the rich heritage, won through tireless struggles, bequeathed us by our forebears.” And Article 9 makes it clear that “Sovereignty belongs to the people, who exercise it through their representatives and the democratic organs established by or under this constitution.”

But who are “the people” to which this sovereignty belongs and who are their representatives and the democratic organs responsible for making the laws that govern us? The Article also suggests that we are a representative democracy but what does this mean?

As I see it, there are at least three important levels of representation. The first category arises from Articles 59 and 159 of the Constitution, which in terms of legislative political participation, create two categories of citizens – active (those who actually exercise our sovereignty) and non-active. By virtue of these articles people under the age of eighteen, the insane and certain criminals have no legislative participatory rights and are therefore represented by those who do. (Let us leave aside the thorny issue of who, for example, gave citizens of eighteen and above the right to determine that citizens who are seventeen cannot vote, and simply put it down to custom and practice!)

There is a second most important level of representation when it comes to constitution-making, for national political constitutions must be based, at the very least, upon a broad consensus. Even Forbes Burnham felt it necessary to claim, in the preamble to his 1980 Constitution, that it was only adopted with “popular consensus, after full, free and open discussion, debate and participation.” The representation which established our present Constitution was based upon both numerical and institutional consensuses.

Article 4 of the Constitutional Reform Act of 1999 established a Constitutional Reform Commission consisting of “(a) five members nominated by the People’s Progressive Party/Civic; (b) three members nominated by the People’s National Congress; (c) one member nominated by the United Force; (d) one member nominated by the Alliance for Guyana; (e) a farmers’ representative; a private sector’s representative; (g) an indigenous people’s representative; (h) a women’s organisations’ representative; (i) a youth organisations’ representative; (j) a Guyana Bar Association’s representative; (k) a Hindu religious organisations’ representative; (l) a Muslim religious organisations’ representative; (m) a Christian religious organisations’ representative; (n) a Labour Movement’s representative.”

In terms of actual governmental power, there is a third level of representation where politically active citizens vote for representatives (parliamentarians, etc.) to the various governmental bodies at the national, regional and local levels and task them with certain responsibilities.

As for what constitutes the democratic organs, Article 50 of the Constitution states that “The supreme organs of democratic power in Guyana shall be: (i) the Parliament; (ii) the President; and (iii) the Cabinet. It might be useful to observe that the National Assembly is here only included as a part of the parliament, the other part being the president. However, we must also note that Article 71 (1) states that “Local government is a vital aspect of democracy and shall be organised so as to involve as many people as possible in the task of managing and developing the communities in which they live.”

The sovereign people, never trustful of politicians and political power, also instituted a system of courts to determine if the constitution and other laws are being subverted or breached, and thus article 122A (1) of the Constitution states that “All courts and all persons presiding over the courts shall exercise their function independently of the control and direction of any other person or authority; and shall be free and independent from political, executive and any other form of direction and control.”

Our political system is based upon the weak kind of separation of legislative, executive and judicial powers that are normally found in Westminster-type political systems. However, our sovereign people have retained an important level of authority for themselves. By Article 164 Parliament can only alter certain aspects of the Constitution by way of a referendum. So, for example, the people have not delegated to parliament, the president, the national assembly or anyone else the right to change the name of our country without its authority.

 

Since the making of our constitution was based upon a numerical and institutional consensus, not even the two main parties together should be able to perennially thwart the wishes of the sovereign people expressed through the Constitutional Reform Commission. For example, the sovereign people have decided that an effective system of local government shall exist in Guyana, but for years the political establishment has been complicit and/or obstructionist in this not being accomplished and the courts appear impotent. What then is to be done when the sovereign is ignored and how is its authority to be upheld?

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