Reflections on the Constitution and the Rule of Law

By Livingston Smith

On Monday of this week, we celebrated Constitution Day that is meant to celebrate the adoption of the 1959 Constitution. This celebration of a country’s constitution must be regarded as a most significant event when one considers how crucial a constitution is for making a political community possible in the first place.

Broadly speaking, British civil servants at Whitehall, with little input from Caribbean publics, primarily produced the constitutions of Caribbean independent states. At independence, Commonwealth Caribbean countries adopted the parliamentary system known for the rule of the party which gets the majority of seats in an election. It is also known for its dual executive power structure in which the head of state, the Governor General, represents the British monarch and the Prime Minister is the head of government.

Political scientist Anthony Payne, specialist on this region, has observed that the Commonwealth Caribbean's legacy of liberal, representative institutions is a "political order based on the working of practices and commitments that have as their inspiration the Westminster system". According to Payne, this legacy includes, among its core elements, the convention of constitutionalism, the doctrine of civilian supremacy, the custom of competitive elections, the practice of pluralist representation and the 'presumption' of bureaucratic and police neutrality.

‘The convention of constitutionalism’ as Payne calls it, really means that all persons in the country are required to abide by the provisions of the constitution. This makes for what is called the ‘rule of law’. This idea that each person is equally under the law and that the law is applied equally is a cardinal requirement for the operation of modern civilized societies. This is so irrespective of the fact that it does not happen in this way for all cases.

In further explaining what is meant by ‘the rule of law’, The World Justice Project says that it comprises four principles. It is a system of self-government in which all persons, including those in government, are accountable under the law. It also implies a system based on fair, publicized, broadly understood and stable laws. The ‘ rule of law’ also implies that there is a fair, robust, and accessible legal process in which rights and responsibilities based in law are evenly enforced and also that there exists ‘ a diverse, competent, and independent lawyers and judges.’

The idea, if not the practice, of the rule of law, goes way back in British history to the declaration of the Magna Carta or Great Charter that was signed by King John of England in 1215. A group of barons or powerful noblemen, who supported the king in exchange for estates of land, demanded that the king sign the charter to recognize their rights. The Magna Carta, imposed on King John by his subjects, was sealed by him on the banks of the River Thames, June 15, 1215.

The framers of this document understood that law had to be binding on all, including the Monarch, or else one would not have ‘the rule of law’ but instead a situation where the Monarch could do as he pleased. In fact, in the case of England, as in other European countries, before the Monarchs were gradually stripped of their powers, there was a history of them being the very epitome of tyranny being able to make, interpret and enforce the law. The Monarch was for a long time ‘above the law.’

By its insistence that the life, liberty, or property of free subjects of the king could not be arbitrarily taken away and that the law of the land had to be followed in the making of judgments against a person, the Magna Carter planted the seeds for the concept of due process as it developed first in England, and then in the United States. Due process means that everyone is entitled to a fair and impartial hearing to determine his or her legal rights.

Senior Lecturer in Law, University of Chicago Law School, and U.S. Court of Appeals Judge Diane Wood, in her paper “The Rule of Law in Times of Stress” (2003) explains that the rule of law requires an open and transparent system of making laws and laws that are applied predictably and uniformly. People need to know and understand what the law is and why they are required to follow it, she writes.

In addition, she continues, the rule of law also requires that people can expect predictable results from the legal system; this is that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist, the judge explains.

But the rule of law, the cornerstone of a modern society, is made possible by the constitution. This explains why when a society thinks it necessary to reform or to "modernize" its constitution, each citizen should stand up, pay attention and participate. This is so as the constitution is a sacred covenant between leaders and citizens. It lays down the ground rules for living together in society and protects the possibility of community in which individual citizens can live their full lives. It addresses the questions of who are to be included as members of the political community, the kinds of rights and liberties to which they are entitled and the concomitant responsibilities.

A constitution limits the arbitrary actions of government, guarantees the rights of the governed and defines the sovereign power. This binding document, both conceptually and practically, reaches into the lives of citizens, as it is both concerned with the structure of power, that is, the way government can treat its citizens and also the ways citizens may treat each other.

The constitution is superior to all other laws. It sketches the fundamental modes of legitimate government operations, guards the fundamental rights of citizens, and is a symbol of the kind of culture, norms, and values, which a society subscribes to. The constitution embodies the normative attitudes held by people towards government, their conception of how power ought to be regulated, of what it is proper to do and not to do. Because of these reasons, the constitution matters for social and political outcomes.

For example, in the Cayman Constitution, the inclusion of a Bill of Rights is of major significance. It asserts the concept of human dignity, affirming that on the basis of the dignity and worth of the human person, and for no other reason, each person is entitled to certain minimum rights and standards of living conditions essential for the maintenance of self-respect. These rights and standards are to apply regardless of intelligence, skill, wealth, background, race, religion, sex, creed and political opinion.

Off course, as Martin Luther King writing from his ‘ Letter from Birmingham Jail’ in 1963 notes, law is one thing, but justice is quite another. The real challenge is to align laws to requirements of Justice.