By Dr. Selwyn R. Cudjoe
May 22, 2006
Clevon Raphael is a friend. Yet, for the life of me, I don't how he and his fellow commentators utter so many inanities when they are confronted with issues of national importance that call for dispassion and careful reasoning. The best Clevon can do in assessing the impasse between the Prime Minister (PM) and the Chief Justice (CJ) is to call upon God and plead: "My God, when are you going to deliver us from this perpetual state of despair bedevilling our country" (Trinidad Guardian, May 17).
Why the despair? Can he not see that the present impasse is merely an aspect of a continuing evolution that countries encounter as they move from one stage of their social and constitutional development to another? No country has ever been endowed with a ready-made, all-purpose constitution, fit for all times and all circumstances; good from its inauguratory moment to its present political emanation. All constitutions are amended or changed in light of new national circumstances.
Many of us point to the US or Britain when we look for examples of mature and workable constitutional orders. One can take any example. In the US, the restriction of two terms for a president came into force in 1951 (22nd Amendment) in light of the excesses of President Roosevelt who, among other things, tried to pack the Supreme Court. That provision was not placed in their first constitution of 1787. In fact, the famous Bill of Rights was inserted into the US constitution in 1791.The right of African Americans to vote by virtue of their being citizens only became unambiguous after the passage of the Voting Rights Act of 1965. Prior to, many legal obstacles prevented them from exercising their franchise. In 1790, only while male adults with property could vote.
In Britain, a much older constitutional system than the US, it was only in the 19th century that the majority voice prevailed in Parliament. Prior to, the King ruled as he pleased regardless of who constituted a majority in Parliament. J. G. A. Pocock, a Cambridge scholar, reports that George III "upheld William Pitt's ministry in the face of repeated defeats in Parliament. Fox, and…Burke considered this a breach of constitutional convention; the King should accept as his ministers only those who could command the votes of the Houses. As a matter of fact, this was not yet the established convention which it became in the nineteenth century." Although the Magna Charta, one of the most significant influences on the British constitutional law, was enunciated in 1215 and the Habeas Corpus Act, one of the most important statues in English constitutional law, came into being in 1679, it took two hundred years thereafter before the party that claimed a majority of seats in the Parliament could rule and carry out its will.
In the life of any society, constitutional practices and conventions come into being as issues arise and societies are forced to come to terms with them. Therefore, when constitutional issues arise, they should not be taken as causes for despair or be seen as the work of the devil, as in "bedevilling our society." The devil I am sure can be found in other works of iniquity. There is no need to implicate him in our constitutional processes.
If a complaint is made against the CJ and the PM refers the matter to the President or causes an inquiry to made, such proceedings are in keeping with the trajectory of our social and political practices and the dictates of our constitutional arrangements. As in the case of possible criminal charges being brought against a CJ, if we find our constitution silent in this particular regard, it signals that in the re-writing of the constitution that we give voice to those silences.
Brother Clevon cannot be bothered with such subtleties. He appeals to God; opines about "unseemly imbroglio;" castigates the PM for giving the CJ an "ultimatum;" alludes to an 18th century concept of "natural justice" yet conveniently forgets that the first thing President Gerald Ford did when he assumed his presidency was to grant Richard Nixon an unconditional pardon to spare a nation the indignity of having to sing "jail to the chief" rather than "hail to the chief."
Brother Clevon sees what is taking place-the PM's search for an orderly constitutional process--as "an unseemly clashing of horns by big men at the highest levels of society." He concludes: "People are more concerned about bread and butter issues and sometimes I wonder if some situations are not deliberately orchestrated to get our minds off the real problems that afflict us."
But herein lays his confusion. A constitution and the issues that arise there from are about bread and butter issues; they are the means by and through which we ensure that bread and butter are distributed fairly among our citizens. A Constitution is a framework (a master plan, as it were) through which we try to create a level playing field so that the fruits of our labour are distributed as equally as possible; the reach of the law is not diverted from its "natural" course; and no man can or should be seen as perverting its "authentic" ends.
Rather than raise my hand in despair and consign the nation to the perdition, I prefer to reflect on the words of Edmund Burke who, as he analysed the impact of the French Revolution on constitutional practices in Britain, opined: "A state without the means of some change is without the means of its conservation. Without such means it might even risk the loss of that part of the constitution which it wished the most religiously to preserve." The clarification of relations, holding persons responsible for their actions and demanding that a person fulfils his duties honourably are the necessary prerequisite for the consolidation and harmonious working of the state. In a democratic country, only a strict adherence to a constitution ensures these outcomes.
Times, occasions and provocations teach their own lessons. According to Burke, "the wise will determine from the gravity of the case; the irritable, from sensibility to oppression; the high-minded, from the disdain and indignation at abusive power in unworthy hands; the brave and the bold, from the love of honourable danger in a generous cause." The irresponsible will always babble in confused tongues and chant meaningless Babylonian phrases. Theirs will always be the kingdom of the irrelevant.
Less we forget, the impasse is not "about the clashing of horns by big men" but reside in an estate that belongs to all of the people of the country. Power always emanates from the people and that the wise resolution of these problems leads to the better distribution of bread and butter for all.
Professor Cudjoe email address is: email@example.com
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