Constitutional Contradictions

Nov 21, 2010 Features / Columnists, Ravi Dev

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In the normal course of events, institutions change or new ones arise in societies as the populace confronts altered circumstances and agree on fresh ways of dealing with the new realities. In the US, for instance, a furious debate is being waged as some states begin to recognise same-sex marriages. In other cases institutions might have been imposed on populations that ignore local customs and practices and values – ensuring that the “official” institution is observed more in the breech than anything else.
The British, for instance, during colonial days insisted that marriages solemnised by religious rites other than Christianity or by mutual agreement – which probably constituted the majority of marriages at the time – had no legal standing. After independence, the government quickly rectified matters by recognised “common law” marriages – even as they encouraged the “legal” ones by extending the power to officials from other religions.
But it was not only in the private realm that inappropriate institutions were foisted on us – it was just that these were very glaring against the alternative practices we engaged in from our surviving cultural repertoire. In the public domain, the institutions of official rule that constituted the state – the government, the police, the judiciary, the public service etc – were all imposed by the British regardless of whether or not they applied to our local conditions.
Insisting that the institutions were patterned on the model from the “home” country – even as they subverted those rules in their drive for absolute domination – they ignored the irony that their institutions, for ensuring the value of democracy, say, were the result of hundreds of years of their particular struggles.
Even if they had applied their institutions in their “pristine” form – which was a non sequitur since institutions are always works in progress – it would have meant that we had to literally metamorphosize into British society for them to function optimally. Even if that were desirable, the racist premises of British rule foreclosed that route.
Masked by its vaunted “constitutionalism”, British authoritarian rule was founded on coercion and control. The mechanisms that facilitated such an order were the statutory laws and the supporting organs of state. Invariably, these statutory laws were seized by a degree of discretion that even the courts found difficult to limit and the populace to resist.
And so at independence we were bequeathed a constitution – which is the modern document that spells out the institutions of the state and the rules that govern their formation, maintenance and change. As to its suitability for our peculiarities, we should have been tipped off by the outrageous manipulation of the electoral rules by the British-US combination just before independence to ensure what they thought would be a more compliant client than the then incumbent government. But our “independence” Prime Minister Mr Burnham, ever the erudite British-trained lawyer, understood that it was the statutory, legal order and not the constitutional one that permitted governmental latitude. He once boasted that it did not matter what constitution he was saddled with, once in office he would be able to always have his way.
What is interesting is that both the major parties, the PNC and the PPP, decried the inappropriateness of the “independence” constitution as they critiqued it from a Marxist perspective. Importing this foreign “ism”, Mr Burnham claimed he adapted the institutions of the state to our indigenous “cooperative” ethos.
What was more pertinent after the new constitution was launched in 1980, was that Burnham was not obviously not satisfied by the power conferred to him through statutory discretion, but wanted to augment and legitimise it officially through the constitutional order. Deploying the vocabulary and methodological postulates of Lenin more than Marx, Mr Burnham centralised almost all power in the Executive and almost all powers of the Executive in himself. He created an Imperial Presidency: more that Louis XIV he could boast, “I am the state”.
Even though the PPP had criticised the Imperial Presidency vehemently while in opposition, it did precious little to alter its constitutional and statutory basis – much less its inapplicability to our ethnic politics that had become even more entrenched by then – after it was swept into office in 1992. The remainder of the decade was punctuated by strident attacks from the opposition, culminating in the ethnic riots following the 1997 general elections. The brokered Herdmanston Accord placed constitutional change officially on the agenda, but both major parties shied away from the fundamental changes in the state structure that would have truncated the Imperial Presidency and its authoritarian legal bases and addressed our ethnic security dilemmas. Whether driven by ideology or the naked rush of power, both parties refused to address the inevitable strains (to use a euphemism) such a power structure placed on intra-societal stability and progress.
As we approach the general elections due next year, it is heartening that the opposition is beginning to focus on root and branch constitutional tinkering that addresses our fundamental dilemmas. Or are they?
(To be continued)

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