Public institutions are subject to the constitution

Dear Editor,

It is a trite and fundamental principle of written constitutions, including those of Guyana and the United States of America, that these constitutions are the supreme law of the land.  In Guyana, this supremacy is expressed clearly by Article 8 of our constitution and, thankfully, it is not left to the doubtful disputations of varying judicial and other legal interpretations.  Article 8 states as follows: “This Constitution is the supreme law of Guyana, and if any law is inconsistent with it, that other law shall, to the extent of its inconsistency, be void.”  The provisions of the constitution, as the supreme law, apply generally to all public institutions, public entities and public officials, except such institution, entity or official has been granted some exception or immunity by the very constitution itself.  One of the earliest Commonwealth Caribbean cases which affirmed the principle of constitutional supremacy was the decision of Collymore v AG of Trinidad & Tobago.  However, probably the most famous leading authority on constitutional supremacy is the case of Hinds v R  –  a decision of the United Kingdom Privy Council on appeal from the Court of  Appeal of Jamaica.   In the United States, the earliest leading authority on constitutional supremacy is the famous case of Marbury v Madison – a case decided in the early 1800s.  In this case the United States Supreme Court deduced the doctrine of constitutional supremacy even though the US Constitution did not contain an express supreme law clause as in the case of Guyana and other written Commonwealth Caribbean constitutions.

Another significant impact or consequence of constitutional supremacy is that the laws regulating public institutions, or any policy, decision or act of the institution or any public official,  may be declared to be void for unconstitutionality if they or any of them are found to be inconsistent with any provision of the constitution.  For instance, if a public institution or official breaches one’s constitutional right to free speech contained in article 146 of the Guyana Constitution, then that institution or official would be liable constitutionally.  Or if such institution breaches one’s constitutional right to natural justice contained in Article 144 of the Guyana Constitution,  then constitutional liability will accrue.  Both constitutional rights may be breached in one incident where one is denied the right to speak in one’s defence, particularly where your accuser was allowed to speak on the same matter on which one was forbidden to speak.  Such action also amounts to discrimination and an abuse of discretion.

On another important governance issue, public institutions and officials are strongly advised to ensure that they obtain competent legal advice before taking any decisions and/or approving any documents where such institutions or officials may expose themselves to serious legal liability.  When I worked as an Assistant Attorney-General of the United States Virgin Islands, every legislative bill and every contract over a certain amount had to be reviewed by the lawyers in the Solicitor-General’s Department for constitutional and other legal sufficiency.  In fact, I had personally developed a constitutional checklist for the review of legislative bills.  This checklist was formally adopted by the then Solicitor-General for use by the entire department.  This process ensures uniformity and substantially reduces discriminatory policies and contract provisions.

Finally, under no circumstances should public institutions ratify the illegal or unconstitutional decisions of its employees, unless such institutions wish to voluntarily   assume legal responsibility for such illegal or unconstitutional conduct.  Participators in such processes must ensure that they dissent from any such decision if they are not to be tainted by any such illegality and/or unconstitutionality.

Yours faithfully,
Calvin Eversley

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