Now that human rights are entrenched...

I thank Kenneth Wain for what he wrote in the first paragraph of his article (January 5). Personal "dartings" are indeed real obstacles in an argument about an interesting subject such as the one we are engaged in. There is nothing more efficient than an apology to clear the decks from any ill-feelings which may have been even unconsciously generated.

I have to begin by stating once again that what I objected to with regard to the use of the cliché "naturalistic fallacy" was and is based not on my likes or dislikes but simply because it is a false statement, as demonstrated by Finnis. E. Moore and other philosophers who use the cliché have repeated it without looking at it closely as Finnis does.

Coming to entrenchment. If Prof. Wain used it simply as a technical word I have to reiterate that indeed it is and it describes what is a juridical device or technique used by jurists who are looking for a form of legislative restraint for the whims of simple majorities who change and twist laws to suit their temporary hold of power. The device is used in order to safeguard what, by a more general consensus, is at a given moment in time considered to be fundamental enough to establish some stability in the Constitution of a state.

I note what Prof. Wain writes in the next three paragraphs following his research in his online encyclopaedia which made him substitute "with some relief" the word "entrenchment" with "special procedure". However, although he has found a number of examples of these special procedures in various democratic constitutions, he nevertheless comes up again with this statement: "My concern with the anti-democratic features of our kind of entrenchment is not idiosyncratic either".

I do not see anything special or particular in "our kind of entrenchment" which qualifies it as "anti-democratic" unless, of course, Prof. Wain does not mean to single out our kind of entrenchment as being anti-democratic but holds all kinds of entrenchment as being so. In any case, what do entrenchments and special provisions really mean? They are juridical attempts to try to safeguard, from temporary buffets of simple majorities who in any democracy obtain power and, on the strength of that, change the Constitution of a state even in its fundamental values.

Of course, entrenchments and special provisions can only be successful if they are sown in a democratic system which is "worked" by politicians who respect its word and spirit and upheld by judges who are blessed with a sense of justice, courage and intellectual honesty.

I also repeat what I said about the "old" and the "new" constitutions. I did say that pre-1945 constitutions were based on the simple majority rule and to state that I am wrong because the US and the French constitutions had entrenchment provisions is to print out the exceptions to the old rule (my definition) which held sway in Germany (pre-1933), Norway, Sweden, Denmark, Holland, Belgium, Luxembourg, Italy (pre-1930), Spain (pre-1936) and Portugal (before 1932). I had to include brackets because Prof. Wain wrote that he finds it odd that I did not know that these countries did not have liberal constitutions. Quite funny.

Indeed from the point of view of the history of legislation, 1945 is the watershed which in constitutional law marks the great divide between the concept of change of fundamental laws by simple majority to that of enshrining those fundamental laws by the judicial provisions of entrenchment requiring special majorities or by other special provisions.

I did also say that the British Constitution is "outdated" in the sense that it is one of the most deeply democratic "constitutions" on the globe but which tolerates an electoral system that is surely not "democratic" if by that one means that it will ensure the rule, for a certain specified time, of the majority. That it does not do so is manifest to all, and Prof. Wain should understand what I mean when I say that the British Constitution does not satisfy the condition of the new constitutions.

What new constitution would in fact put up with the result of the single past-the-post system of election which came out in the last May election - Labour 9,556,183 votes equal to 35.2 per cent giving 356 seats equal to 56.5 per cent (out of 630); Conservatives - 8,772,598 votes equal to 32.3 per cent giving 197 seats equal to 31.26 per cent, and Liberals - 5,982,045 votes equal to 22 per cent giving 62 seats equal to 9.84 per cent?

There is no country in the world which would stand in silence before such a result. But the British do. This is the great paradox of their Constitution which - as I said - in spite of this, nevertheless, supplies one of the most democratic systems in the world.

In this context, I am afraid, Prof. Wain is wrong when he states that "the reason why the British government failed to suspend habeas corpus... 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? What happened in the House of Commons was not so grand.

What the members who crossed lines did was to balk at the suspension of habeas corpus for 90 days... but they settled for 25 days! We are beyond this kind of so-admired maturity because, thanks to the entrenchment provision in our Constitution, the government of the day would not have been able to carry out a similar radical change in the rights of the suspect which we have without a two-thirds majority of the members of our House of Representatives.

May I at this stage state what is clear to all students of law. Laws set out principles, the starting points, for doing or not doing something. In the long and troubled history of mankind, we have not found anything better than this to regulate our behaviour. But laws can be unjust and this is where natural law comes in. It sets its head against that sovereignty of the state which has the power to enact unjust laws that go against the basic good of human nature as identified by right reason.

To put it in a nutshell, for Prof. Wain this is "vacuous" and he thinks that natural law is made by nature instead of "in accordance with human nature". Most of the fundamental human rights are based on human nature and they are the outcome of the discoveries and insistence of jurists and philosophers in their quest for the limitations of the power of the state to enact laws without constraint to suit the will of the sovereign or of the ruling majority.

Happily, I can conclude my intervention by noting that Prof. Wain, in his ultimate paragraph, in part at least, agrees with what I have just written. He in fact states, with reference to natural law: "Today it is not worth keeping and unnecessary for sustaining human rights". I take this to be an acknowledgement that, at least up till today, natural law was necessary to bring forward human rights and sustain them. It is only now, today, since the battle has been won, that natural law is not worth keeping as it is no longer necessary for sustaining human rights as they have now taken root and are entrenched in most constitutions.

I cannot but take solace in this partial agreement between us on the past history of natural law and our disagreement limited to the here and now and the future.

Prof. Mifsud Bonnici is a former Chief Justice.