The quest for complete justice

I do not wish to appear ostentatious, much less presumptuous. I wish, however, as a student reading for a law degree, to join in a debate between learned academics.

Kenneth Wain's article entitled Entrenchment, Democracy And Special Procedures (January 5) raised certain interesting questions which command a reply. My view is that entrenchment in a Constitution is not necessarily an anti-democratic feature but could also well be a guarantee and a safeguard of certain basic values, freedoms or institutions.

I therefore pen this letter with the sole purpose of attempting to respectfully comment on certain aspects of constitutional theory.

Prof. Wain's concern with the "anti-democratic features of our kind of constitution" might prove an apt point of departure. The learned gentleman is very right in stating that entrenchment has featured as a key issue in constitutional theory. Wojciech Sadurski and Neil Walker do, in fact, devote a substantial amount of treatment to the exploration of the "tension" constitutional entrenchment and democratic will. Constitutionalism in fact presents itself as a topic in several contemporary law journals.

David Feldman, on assuming the Cambridge Rouse Ball professorship, delivered his inaugural lecture (Cambridge Law Journal, July 2005) on (among other things) the "fundamental values and deeply rooted principles that other countries normally self-consciously choose to shape their constitutional rules".

William Gladstone, in an essay entitled Expressive Liberty And Constitutional Democracy: The Case Of Freedom Of Conscience (American Journal of Jurisprudence, 2003), enumerates the issue of a so-called "liberal democracy", in terms of constitutional judgments and, similarly, constitutional limitations. The list is, of course, endless.

From what I have understood, Prof. Wain seems to consider the entrenchment of certain articles a constraint on the freedom of what Kant has called "the later age to expand its knowledge". It is here that I must disagree with Prof. Wain, and, in doing so, support Giuseppe Mifsud Bonnici (Entrenchment And Simple Majority Voting, December 14, 2005). Constitutional entrenchments, contrary to Prof. Wain's averring, do not amount to "anti-democratic features" of legal systems. The sole purpose of this protection is, and always has been, the ensured supremacy of certain fundamental principles which remain synonymous to the preservation of the beliefs of the state adhering to the Constitution. These beliefs go far beyond the political whim of any government. They are ingrained in the very fabric of the legal system of a nation. This provides, of course, an interesting juncture between the law and the character, if you will, of a population bound by that law. The point, of course, is that for the sake of continuity of the society, which, in my humble opinion, is one of the primary aims of a Constitution, the law must adhere to a certain level of rigidity, a staple which truly reflects the mettle of the society.

H.L.A. Hart, a strong advocate of positive law doctrine, comments in an older edition of the Harvard Law Review that "such rules are so fundamental that if a legal system did not have them, there would be no point in having any other rules at all" (The Philosophy of Law, a Collection of Essays 1977). He is, in the context of that essay, referring to the importance of rules reflecting the substantial nature of the society they represent.

My point, therefore, is that, given the nature of constitutional law, it is necessary always to protect those elements which reflect the social character of the law, inextricably bound to the preservation of the society they represent. This issue of law as a medium of representation of society is best summed up by Timothy Endicott, when he postulates that a necessary feature of a legal system is that it "conforms to that ideal in the value-laden sense in which we ought to understand it [...] those rules are part of what makes a normative system a legal system".

Similarly, I find it hard to accept Prof. Wain's assertion that a constitutional entrenchment "is a confession of democratic immaturity". Undoubtedly, Prof. Wain will recall the turbulent history of the Constitutional Court, a saga which, up until two decades ago, was not yet over. Undoubtedly, politics in Malta has thankfully migrated to a completely new playing field and one hopes that the events of the 1970s and 1980s are permanently behind us. But history is an invaluable teacher and that such salient institutions be safeguarded remains, to my mind, the quintessential expression of the safeguarding of constitutional rights of the citizens.

Finally, I find comparisons to the British Constitution may not be necessarily relevant. The United Kingdom's "constitution" is based on a long history of parliamentary responsibility, and surely we cannot compare a younger nation-democracy such as ours to one of such long-standing tradition.

Moreover, it would not, to my view, be correct to think that the UK is not guarded in its amendment of its "constitution". The British political system is governed by a cadre of conventions, which, though not technically enshrined, act as sentinels to the continuity of the magnificent tradition. The Constitutional Reform Act of 2005 is the most recent example that I could bring to light. The Bill raised great controversy before finally accruing consensus in a modified form.

Thus, whether a Constitution is expressly protected by entrenched articles or governed by a tacit form of preservation is, to my mind, immaterial and an unnecessary question.

I do not wish to enter into the debate further for the remaining issues have been sufficiently tackled by far more competent and authoritative thinkers.

In conclusion, it is perhaps relevant to quote Plato's remark in the Laws: "Any lawgiver worth much of anything will never set down laws with a view to anything but the greatest virtue. And this is... that quality which someone would call complete justice" (I. 630C3-6).