Dear Editor,
By failing to grasp the significant distinction between de facto and de jure constitutionality, Lincoln Lewis continues to labour under a grave misconception. Mr Lewis states “Examining these instruments that set out to govern human relations it would be realised that they were conceptualised and developed by the people, their representatives and law-makers, who in many cases were not lawyers.” Mr Lewis is peddling a gross distortion here: the 1980 constitution was not conceptualized and developed by the people. It was conceptualized and developed by a dictatorial regime and imposed arbitrarily on the people. Whether they were lawyers or not is immaterial.
He states, “A fundamental tenet of democracy is government of the people, by the people and for the people…” What Mr Lewis misses here is the law (the 1980 constitution) was not born of government of the people, by the people and for the people. The wonderful irony of this faulty reasoning is that he wants the people to activate the constitution which they themselves had no role in crafting and which was dictatorially foisted on them.
The fact that a constitution exists does not warrant or constitute automatic legitimate obedience of it by the people whose lives it impacts on. An illegal de facto constitution obtains obedience or respect by the fact of its existence, force, duress, expediency and operability. It is one thing to act within its confines or to rely on it selectively for the sake of expediency, etc. It is another to act on a constitution on the foundation of an unswerving belief in its legitimacy and legality.
Mr Lewis continues to crow about activating people power. The glaring truth is that people power is subservient to executive power in the 1980 constitution. This constitution is incapable of activating people power. Nothing highlights the onslaught on people power more than the fact that the people (electors) can specifically elect a minority executive (presidency) and deny the president’s party control of the legislature yet the presidency on a whim can prorogue and dissolve the very same legislature created by people power. The president’s cabinet whose members serve in both cabinet and the legislature are still able to operate in executing their executive functions while the elected legislators are effectively leashed by prorogation. The executive, minority or not, determines whether people power exercised through local government elections exist or not. It has not given the people that power since 1994.
Mr Lewis points to Article 119A requiring the Parliament to create a committee on constitutional reform. The problem he fails to acknowledge with Article 119A is that no matter what the Constitutional Reform Committee of the Parliament proposes, the actual achievement of reform is impeded and can be manipulated by executive power. The constitution can only be reformed in two ways: by Parliament and by referendum. A referendum can be held to amend those provisions of the constitution allowed for amendment under Article 164. Notwithstanding the overwhelming approval of the people, the amendment does not automatically become law as it does in democratically decent constitutional countries. That amendment still has to be presented as a bill by the Parliament to the President for his assent. Now, the President is not mandated to give his assent. He still technically retains the right to give or withhold his assent. So, conceivably, we could have a situation where Parliament sends one of the provisions under Article 164 to a referendum and the amendment is approved yet the President could withhold his assent, rendering the voting will of the people null and void. In the case where, as occurred under the PNC, the government rigs the election and installs a two-thirds majority in the Parliament, this illegal Parliament has the power to amend any of the 233 articles of the constitution except for eleven Articles under Article 164(a), most of which protect the presidency.
Constitutional legitimacy is about getting it right by directly involving the people in the constitution-creation process. The constitution cannot be rallied around when it centralizes power in the executive to the exclusion of the democratic expressions of the people. We need a new constitution, properly voted for in a free and fair referendum by the people of this country.
Yours faithfully,
M Maxwell
