Entrenchment, democracy and special procedures

I regret that Giuseppe Mifsud Bonnici (December 14) was offended that I described him as a "dyed-in-the wool conservative". "Dyed-in-the-wool" simply means confirmed and unchangeable and that is what I meant. He is an intelligent man; he knows what "petty darts" and "digs" he threw my way. He set the tone for this exchange, but let that pass. I do not want an argument on an interesting and important subject to be spoilt, so if he took offence I apologise, and hope we can move on.

I also want to skip the bit about the "naturalistic fallacy". The quotation from Finnis makes the same point but does not use the expression. If Prof. Mifsud Bonnici dislikes the expression "naturalistic fallacy" that's his prerogative, but that is the one used in philosophy since G.E. Moore, so it is not "incorrect" for me to use it.

Let me correct his interpretation of what I said about "entrenchment", a word which, as he says, I dislike because of its associations with the fixed and dogmatic. I used it simply as a technical word. I said that a constitution should define a people's basic political beliefs but that no people has the right to impose those beliefs dogmatically on future generations.

My view is that constitutions should be permanently revisable, and the way "entrenched" principles should be revised in democratic societies should be by referendum. They would be "entrenched" only in the weak sense that it would need a referendum not a simple parliamentary majority to change them, as opposed to the strong sense of being there for all time. Prof. Mifsud Bonnici asks: "what kind of entrenchment is this? Entrenchment means exactly the opposite of changing by a simple majority".

Not being a constitutional expert I went to my on-line encyclopaedia to take his challenge up. It told me that constitutional amendments are made in different ways but "In jurisdictions with 'rigid' or 'entrenched' constitutions amendments require a special procedure different from that used for enacting ordinary laws". It distinguished between "flexible", or unwritten, constitutions like that of the UK and the Knesset that require no "special procedure", just a simple act of the legislature. "Special procedure" is the name I wanted for what I wished to propose in the previous paragraph so I give up the word entrenchment with some relief.

It turns out that "special procedures" vary between written constitutions. Many, among them the German, require procedures like ours, two-third parliamentary majorities. Some are permanently entrenched. Others, like Switzerland and some states in the US, require referenda, which may be the result of a single citizen's initiative.

Others still, like the Republic of Ireland, Denmark, Japan, and Australia, require referenda initiated by the legislature. In this case a parliamentary majority needs to be confirmed by a popular referendum. The French Constitution admits to both the mechanisms of entrenchment and referendum in different circumstances. Two factors emerge here. First, my "special procedure" is not idiosyncratic, nor is it unworkable. My earlier arguments were based purely on my liberal, democratic convictions. Now, after this little piece of research I would support the system whereby a parliamentary majority is followed by a referendum majority, both being simple democratic majorities. In that way the envisaged change to the constitution is filtered through two democratic processes and the second would benefit also by the parliamentary debate on the issue.

My concern with the anti-democratic features of our kind of entrenchment is not idiosyncratic either; it's a hot point of debate in constitutional theory. In their description of their course on contemporary constitutional theory at the European University Institute, professors Wojcieck Sadurski and Neil Walker say that the "tension... between constitutional entrenchment and democratic will" is a "key" question that requires careful exploration; it raises the question whether it is not paradoxical that a state or other polity governed by majority rule withdraws certain areas from the realm of collective decision-making. Doesn't the principled conflict between entrenchment and the democratic will concern Prof. Mifsud Bonnici? What importance does he give that will if he justifies the suppression of its manifestation by entrenchment?

Second factor: my impression that his strange division of constitutions into "new" and "old" is entirely his own is confirmed; it fails to do justice to the complexity of constitutions and constitutional histories that exist all over the world. His statement that "the simple majority rule was prevalent in all the pre-1945 written constitutions" is demonstrably false. Several pre-1945 written constitutions were entrenched, those of the United States and France are examples.

His view that the British Constitution is outdated because "it doesn't satisfy the conditions of the new constitutions at all", - that is, it is not "written", - is a purely personal opinion unshared by the British. A constitution becomes outdated when it fails to correspond with the political needs and perceptions of the society it serves, and this is not the case in Britain. Besides, are we to assume that what is "old" is by definition outdated? I think not! I take "old constitution" in the British case as a term of praise not criticism.

Prof. Mifsud Bonnici says that in comparing "new" and "old" "what I was comparing were the old pre-1945 liberal constitutions of nations like Italy, Spain and the Weimar Republic of Germany and the new post-1945 constitution of the same nations. Now this is odd because, to my knowledge, the three countries he mentions were governed not by liberal but by Fascist constitutions pre-1945 (in Spain until much later). The fascist/nazi experience of these countries during the period explains the need they felt to entrench a Bill of Rights and other articles in their constitutions, just as the entrenchment of a Bill of Rights in the US constitution is explained by American history; the Civil War and the issues on which it was fought, the institution of slavery, etc. Malta has not had anything like the same experiences.

Prof. Mifsud Bonnici proclaims: "That the British unwritten Constitution supplies one of the most democratic systems in the world is beside the point". What is to the point then? How does one evaluate the validity of a constitution if not by its political performance? The unwritten British Constitution has worked well because Britain enjoys strong democratic traditions and liberal institutions that have made a written constitution redundant. Prof. Mifsud Bonnici counters this argument by referring to the recent polemic raised by the British government's move to suspend habeas corpus and give the police the power to hold suspects in detention without charge or trail for 90 days. The move failed, he points out, because dissident Labour MPs opposed it and it failed to obtain a simple majority.

Of course, in Britain it would also have had to be cleared by a second filter, the House of Lords, but let that pass. Prof. Mifsud Bonnici's point is that with an entrenched and written constitution habeas corpus would have been safer. Unfortunately history shows that this is not the case.

Take the torture of terrorist suspects by the US government at Guantanamo Bay and, possibly (not to say probably), in some sites in Europe (with the collaboration of some EU countries), as an example.

The US has an entrenched Bill of Rights, but simply moving its actions outside territorial waters has taken care of that small inconvenience, and we all know that open apartheid practices against the blacks in the US was a reality right into the 1970s.

I find it incredible that at first Prof. Mifsud Bonnici cannot understand my statement that "I am not reassured that I am protected from being tortured simply because the Constitution of Malta entrenches my right to human treatment". Could it be that we were living in different countries in the 1970s and 1980s! But then he retracts with a "Quite so" and remarks how less protected I would feel "if no such protection was enshrined in the Constitution".

True, but "enshrined" is not "entrenched," it is entrenchment that I dislike. Entrenchment is a confession of democratic immaturity, understandable in post-1945 Italy, Spain and Germany but not in Malta today. The reason why the British government failed to suspend habeas corpus in the case referred to was the democratic maturity of its Parliament; the willingness of its members to cross lines and vote against their own party on matters of principle and national interest. That, to me is greater, much greater, protection than entrenchment. Will we ever reach that maturity?

He completely confuses my statement that "it has always been a moot point... who qualifies as human (like what qualifies as "natural") depending on who defined the terms and for what purpose" finding it "incredible". I don't know why. History is replete with examples of people denied the status of "human being" because of their age, ethnicity, race, gender, sexuality, and disability (particularly mental); people who have been treated as slaves, as objects for torture, experimentation, or exploitation because they are "sub-human". Need I provide the examples?

And this links up with my view that "natural law"' theory is vacuous and pernicious. It is vacuous (1) because it does not correspond with anything identifiable, and (2) because "nature" does not make laws; laws are made by human beings. It is pernicious because slavery and discrimination are often justified in its name. Aristotle believed that some people are born slaves and that it is therefore legitimate to treat them as such. Thrasymachus in The Republic interpreted the law of nature, or natural justice, as the right of power of the strong over the weak; as the survival of the fittest.

Their political descendents (nazis, white supremacists etc.) have held similar assumptions in more contemporary times with tragic consequences.

The notion of natural law was crucial for the Enlightenment thinkers of the 17th and 18th century when it served to contain the arbitrary power of various despotic institutions, political and ecclesiastical. Today it is not worth keeping and unnecessary for sustaining human rights.

Incidentally, in his essay on Enlightenment (1784), Kant says: "One age cannot bind itself and thus conspire to place a succeeding one in a condition whereby it would be impossible for the later age to expand its knowledge, to rid itself of errors, and generally to increase its enlightenment".

He calls such conspiring "a crime against human nature" whose essential destiny is its progress through the use of reason. "Subsequent generations," he continues, "are thus completely justified in dismissing such agreements as unauthorised and criminal" (1992:44).