There is a distinction between ‘constituent power’ and ‘constituted power’

Dear Editor, The debate over the affirmation of our Court of Appeal of the ruling of Chief Justice (ag) Ian Chang in the Richardson case, was joined by the intervention of former Chancellor and AG Keith Massiah. The learned Chancellor (rtd) wrote “in respectful concurrence with Justice Duke Pollard’s crystalline analysis of the issues bearing on the question of the presidential term limit.”

In doing so, however, he reveals unfortunately, his concern and that Justice Pollard was solely about “presidential term limit” and not even the three other categories of citizens that were removed from consideration as presidential candidates to the citizenry by Act 17 of 2001. Most significantly they give short shrift to the real issue of the limits of the amendment power in reference to the basic structure of the constitution in general and of the “democratic sovereignty” of the Guyanese people in particular.

But in supporting Justice Pollard’s focus on an exegesis of “associated words on statutory terms” that Articles 1 and 9 of the Constitution refer to “a unified political entity” and not to “constitutional entitlements of the people” Chancellor Massiah reveals their common source of confusion.

Our Constitution emphasises at its very beginning: “We the people do adopt [the constitution]”. It then declared, the Guyanese people, possessing the “constituting power”, created “The State And The Constitution”, including Art 1: “Guyana is an indivisible, secular, democratic sovereign state…” and Art 8: “The Constitution is the supreme law of Guyana”. The Constitution therefore possesses “constituted power” that is superior to the state but subordinate to the “constituent power” of the people.

Under the next heading, ‘Principles And Bases Of The Political, Economic And Social System’, Art 9 reaffirms one aspect of the “constituting power” of the people by affirming, “Sovereignty belongs to the people”. And they “exercise it through their representatives and the democratic organs established by or under this Constitution.” The latter have constitutive power.

Chancellor Massiah ignores the distinction between “constituent power” which resides in the people and “constituted power”, which is delegated to the Constitution and the people’s representatives. The constituent power is exercised by the people to create their constitution and not vice versa for the constitution to specify “entitlements” of the people, as the Court of Appeal claims.

In Guyana, while the people have delegated the power of amending the constitution to their representatives (Art 164) this is inevitably a substantively and procedurally limited power. Procedurally it is to be exercised according to specified increasing levels of difficulty which ends with the ultimate possibility of a referendum of the people. The latter is a simulation of the exercise of their constituent power by acclamation, and is absent in the Indian and Belizean constitutions, which Justice Pollard (and by implication) Chancellor Massiah ignored.

The other use of the distinction between “constituent” and “constituted” power is to delineate the limits of the substantive amendment power by the representatives of the people: the latter, we emphasise being constitutive and limited cannot alter what was dubbed the “basic structure” by the Indian Supreme Court and encapsulated in our Arts 1 and 9. This delineation created the distinction between the “legality” of an amendment and its “legitimacy”. It raises the possibility as has occurred by Art 17 of 2001, that an amendment may be legal (according to the constituted delegated rules of Art 164) but illegitimate, based on its constricting the foundational principles emanating from the constituent power of the people.

The latter impose “implied limitations” of the delegated amendment power and illustrates the distinction made by Carl Schmitt between the “Constitution” (substantive) and stressed by CJ (ag) Chang (rtd) and) the Appellate Court and “Constitutional law” (procedural”) relied on by Justice Pollard and Chancellor Massiah.

In sum, CJ (ag) Chang and the Appellate Court hold that the Constitution specifies the ontological unalterable basic structure produced by the constituting power (dubbed “eternity laws” by some) which cannot be restricted in Guyana unless approved by a referendum of the people, in a simulation of their constituent power. Art 17 of 2001 sought to create an “unconstitutional constitutional amendment”.

With constitutional reform possibly on the horizon, determining the necessary basic structure of a constitution for Guyana might hopefully be informed by the debate. Yours faithfully, Ravi Dev