Entrenchment and simple majority voting

Looking at Kenneth Wain's article (November 1) in reply to what I had written (September 13), I have the following remarks to make.

I did say it is incorrect to call the derivation of "ought" from "is" the "naturalistic fallacy". I did so as I follow what Prof. Finnis says on this misnomer.

In answering the question: "Have the natural lawyers shown that they can derive ethical norms from facts?" the answer can be brief: They have not, nor do they need to, nor did the classical exponents of the theory dream of attempting any such derivation (Natural Law and Natural Rights, p. 33). Furthermore, I may have missed it, but I did not find in Prof. Friggieri, "an accurate account of the expression's provenance", as Prof. Wain says he did. It is only Prof. Wain who used the cliché.

I did not put words in Prof. Wain's mouth. I merely quoted what he wrote and added that his reasoning applies also to the entrenchment provisions of the Constitution and I do not see that there is any difference in what is being proposed and what happened when the entrenchment provisions were inserted in our Constitution.

He seems to justify "entrenchment" (though he dislikes the word) when people make a "new" Constitution. And continues to say that "the people's" changes, today's "people" is not tomorrow's and tomorrow's people should be able to decide for themselves how they want to live and what they want to entrench. Precisely.

I think Prof. Wain, with these words, is saying that today's "people" are entitled to say what they want entrenched. He then says that this entrenchment should follow a simple majority referendum. But what kind of entrenchment is that? Entrenchment means exactly the opposite of changing by a simple majority. I cannot think he does not see and understand this.

I do think that entrenchment is a salient feature of the post-1945 written Constitution. The simple majority rule was prevalent in all the pre-1945 written constitutions. This should help him to understand the great difference brought about by the constitutional concept of "entrenchment". In saying this, Prof. Wain detected that I was addressing "petty darts" at him. Where are these "petty darts"?

Prof. Wain then compares the old liberal Constitution with the Constitution of the Communist states like the one of the Democratic Republic of Korea. But of course there is no comparison. What I was comparing were the old pre-1945 liberal constitutions of nations like Italy, Spain, the Weimar Republic of Germany and the new post-1945 Constitution of the same nations. Communist-inspired constitutions do not bother with either simple majorities or qualified ones. They rest on "unanimous" approvals by whatever "democratic" institutions they set up.

Prof. Wain then writes an incredible personal salvo: "Why should a dyed-in-the-wool conservative like himself worry that I 'pay homage' to the old system, is he now converted to modernism - perhaps, since the 20th century is also 'old', to postmodernism?"

I do not deem it essential to answer this "fascinating" question from an "academic" to an academic.

It is well known that the British Constitution is unwritten and exceptional. Indeed, it is perhaps, the only Constitution where the simple majority rule reigns supreme to the extent that whatever that rule brings out in each constituency is considered decisive. This brings about such a result as the present British Parliament where a government is installed as an expression of 36 per cent of the votes represented by more than 55 per cent of the seats.

Of course, the British Constitution (not democracy) from this point of view is outdated and it does not satisfy the conditions of the new constitutions at all. This is not sheer nonsense. That the British unwritten Constitution supplies one of the most democratic systems in the world is beside the point. We are discussing the question of entrenchment in written constitutions. The very idea of entrenchment is completely out of the orbit of an unwritten Constitution.

I cannot take up what Prof. Wain writes about "entrenchment" and the protection of human rights, as I am afraid I cannot understand what he means when he says: "No I am not reassured that I am protected from being tortured simply because the Constitution of Malta entrenches my right to human treatment".

Let me give an example from the recent happenings in the United Kingdom. The government moved a Bill to suspend the habeas corpus rule and the Convention Basic Right of every suspect of a crime to have his case heard before an impartial tribunal promptly after his arrest. The government wanted to extend that period of detention without bail or trial to 90 days. It could have done it by a simple majority vote. No entrenchment protects the Basic Right. It had to be the "dissident" Labour members of the House, who denied the simple majority needed by the government, but then settled for 28 days detention on mere suspicion - by simple majority. In other countries where that Basic Right is entrenched, no government could move its removal without a general consensus in Parliament.

Prof. Wain does not feel reassured that he is protected from being tortured simply because the Constitution of Malta entrenches his right to inhuman treatment. Quite so. Clearly, however, how much less protected would he be if no such protection was enshrined in the Constitution?

Even a protection in a simple law, depending on a simple majority, would afford some "protection". The worst juridical position would be if there were no legal protection or, even worse, torture as a means of "investigation" of a crime would be a condoned practice as so often is the case in autocratic systems.

Fundamental rights are not all "absolute". The example he gives of asylum seekers in Malta not being protected by what are entrenched human rights is not correct. He then adds the incredible proposition, to sustain that statement: "But then it has always been a moot point, as I pointed out earlier, who qualifies as human (like what qualifies as 'natural') depending on who defines the term and for what purpose".

If this implies that asylum seekers are not considered by our Constitution as "human beings", and that this is a moot point, I disagree. We have always considered as "human" all those who are born of women. Of course, to some liberal minds in the West, this is not so clear. But not for us. Such a proposition is unthinkable for a Maltese judge.

It is a pity that a professor of ethics thinks that natural law is "vacuous" and "pernicious" when he should know that the judicial recognition of fundamental human rights has come about through the persistent proclamations of natural law advocates, mainly philosophers, throughout the centuries.

Finally, it is also a pity that, in replying to what I wrote, he does not scruple to use objectionable unwarranted "digs" or what he may believe to be outright insults. I leave this part to him.

Prof. Mifsud Bonnici is Chief Justice Emeritus.