I noted with consternation and amusement that there was a letter in the Saturday, April 21st edition of Kaieteur News, titled `We await the CCJ Ruling’ – consternation because I don’t share the view that a President can shape our future all on his or her own, and amusement because I have been rendered speechless by the politics of this Dear Land, and would only write a letter to a newspaper if I wanted to be on public record as having held a particular position on a matter I thought was of particular import. In this instance, I am of the view that it doesn’t really matter how the CCJ rules in the “Cedric Richardson case.” Of course I have my reasons, but I don’t think I need to go on public record about them.
Meanwhile, as I have been forced to write you I shall, if you so kindly allow me, use the opportunity to share some thoughts on the recent, excellent, April 11, 2018 Renaissance Lecture by UG’s Distinguished Jurist in Residence, Carl Singh. In summary Chancellor Singh essentially seemed to be arguing the security of fundamental rights provided by the constitution is conditional on the following:
1. The willingness and ability of a person whose fundamental rights have been infringed to prosecute and defend that right and to seek and obtain redress.
2. The willingness and ability of jurists to give a “broad, generous and purposive” interpretation to the constitution, and the willingness and ability of lawyers to forego using opportunities – provided by lacunae, conflicts or other difficulties in the law – when important ethical considerations would seem to gainsay a merely legalistic approach to representing a client.
3. The ability of the judicial system qua system to preserve the independence of the judiciary, especially from politics and in particular, the executive.
The Lecture systematically examined each of these relative to the fundamental rights to life, liberty and freedom of expression. Care was taken to point out repeatedly however that these fundamental rights are qualified and not absolute, in the sense that the constitution does not guarantee the enjoyment of these rights for any one individual at the expense of the rights of others in society.
Chancellor Singh’s Lecture was certainly thought provoking and erudite. But while it was noted that the willingness and ability of a person to take advantage of the Constitution’s guarantees about fundamental rights depended on her awareness of those rights and the particularities of those guarantees, the “economics” of being able to access the judicial system’s protection was only mentioned in passing.
In Guyana, the explicit costs of retaining a good lawyer and the implicit transactions costs associated with benefiting from the Constitution’s protection constitute a high and often prohibitive (opportunity) cost for most citizens. To give an example that might seem trivial, my life and liberty are clearly limited by the State’s decision to permit “promoters” to blast loud, house-rattling, and horrific “music” until 2 o’clock in the mornings. But can I really afford to take the State to court on this matter, and if I did, could I really expect a decision against the state?
Of course there are other issues of far greater consequence that can be raised in this regard, but the point is that the security of fundamental rights provided by the constitution is not “costless” to citizens.
The general question seems therefore to be the effective response (legal aid? mediation?) to this concern. The question for the University of Guyana, in my view, is whether the Law Department might offer a sort of service to citizens that
supplements what is available elsewhere.
On the question of the independence of the judiciary, Chancellor Singh certainly discussed in the Lecture, and some bizarre examples were given of expectations and even demands by politicians for favourable interpretations of the constitution. Examples were also given of the “supply side” of this phenomenon, involving jurists signalling a willingness to provide those interpretations. As an economist, I was reminded that if there are limits of the law, then there are limits to what we can expect of our all our formal institutions as they attempt to constrain and regulate the free reign of self-interest. The “public choice” literature initiated by political scientist Gordon Tullock and economist James Buchanan was built on a recognition that public institutions perform only as ‘effectively’ as do the self-interested people that run them; with the result that public institutions are often subverted to serve the private interests of public officers. A later recognition was that state institutions would only function well if there are people and agencies to monitor public officers, but these people and agencies would themselves have to be monitored. Clearly the need for monitors would go on backwards to infinite regress, and formal institutions would invariably fail as rent-seeking public officers take advantage of their positions to illegally offer opportunities for people to circumvent the constraints of the law.
Our own Martin Carter said it pithily but perfectly when he penned the words
*But the mouth is always muzzled*
*By the food it eats to live[!]*
And finally, in noting that fundamental rights are not unqualified, the observation was made by Distinguished Jurist in Residence Singh that the exercise of such rights might infringe the rights of others. The consequence of such an infringement is essentially what economists refer to as negative externalities, arising from parties exchanging rights in a market, but in the process affecting third parties. Pollution is a classic example of this, but so too are actions that affect the life and liberty of future generations. The latter are known as intertemporal externalities, routinely discussed in the context of the extraction of natural resources, both renewable and non-renewable. The use of the commons, especially the global commons, is rife with such problems, many of which can only be averted by collective action.
Political scientist Russel Hardin has written importantly and extensively on the view that constitutions are not just devices that prevent us from living in a Hobbesian state of nature, as emphasised by contractarians. With help from game theorists, economists and sociologists a new view of constitutions has now emerged to emphasise coordination and cooperation.
To the extent therefore that our Constitution has been unable to get all Guyanese to work together to move far away from the natural state, constitutional reform is both warranted and pressing.
In view of the foregoing, why would I “Await the CCJ ruling?!”
Thomas B. Singh (PhD)
Department of Economics
University of Guyana