The problem of entrenchment

In his interview with The Times (February 24), my friend Fr Peter Serracino Inglott said the following: "The only point of entrenchment seems to be to ensure that a future government will not be able to introduce abortion easily. This is a lack of confidence in the democratic process. Our President, who has really deeply-rooted democratic convictions, used to say as Prime Minister and Leader of the Opposition that he has trust in the people. If one has this kind of trust, then one should not seek to establish principles like abortion through constitutional amendments or such means. Trying to entrench it is a bad sign because it seems as if one wants to use means of compulsion when these things should rest on conviction".

1. In the first place, I think one has to clear the board by eliminating the irrelevance of what the President used to say as Prime Minister and as Leader of the Opposition - as to his trust in the people. Prime ministers and leaders of the opposition have to trust in the people by whom they hope to be elected or re-elected to power in every next and coming general election. They have to have trust in achieving a majority in any election. But what has this to do with the question of entrenchment? Absolutely nothing.

2. The principal and major point for entrenchment in any Constitution is to ascertain the stability of a social juridical value which is acknowledged by the preponderant majority of that society in that moment in time. Jurists and philosophers of law have found no better way to ensure that, once that value is subscribed by a substantial majority, that value should not be left at the mercy of the ephemeral temporary simple majorities who from time to time are elected for a given space of time to the legislative power of the state. They are of their nature temporary and, therefore, unstable, subject to the shifting of simple majorities from one period of elected power to the next. They are anything but stable and, therefore, in a strongly politicised society, every value, unless entrenched, is subject to the ping pong of a simple majority of a party that takes advantage of that principle to implement its policies, which, of course, will be completely rubbed out by the next contrary simple majority. Constitutional history bears out the havoc and chaos for basic values this kind of instability brings about in the state. Which is why philosophers of law have advocated entrenchment in constitutions as the only really democratic system that can ensure relative stability in a state.

3. I had hoped that Fr Serracino Inglott realises that in our Constitution there are no fewer than 55 articles (not counting the sub-articles of these articles which would increase the number to over 100) that are entrenched in the sense that they can only be changed by the votes of not less than two thirds of all the members of the House of Representatives. Among these there are, for instance, all the fundamental human rights (articles 32 to 47), the Office of the President (article 48), the electoral system (article 56), the formation of a government (article 80) and what our national flag consists of (art 3(1)).

4. There is also a deeper form of entrenchment in our Constitution. Thus, in order to ensure that Parliament once elected cannot sit for more than five years, any law purporting to change articles 76(2) and 66(3a) can only be presented for the assent of the President after receiving a two thirds majority vote. Furthermore, that law must, within six months, have been approved by a majority of the electorate in a special referendum.

5. The consequences that lack of entrenchment brings about can be illustrated by two examples from contemporary events in Portugal. The present Portuguese government has by a simple majority vote "depenalised" the practice of abortion, provided this takes place within the first 20 weeks from conception. It passed the law in Parliament on the "strength" of an invalid referendum, for less than 50 per cent of the electorate voted.

The prohibition of abortion was not entrenched in the Portuguese Constitution and, therefore, it was possible for the present government to ram through Parliament this ridiculous, but also tragic, law. Philosophically, it is ridiculous to say that a human embryo can be disposed of provided you do it in the first 10 weeks of its gestation but not on the 11th week or thereafter for then it is a human being. This arbitrary dividing line is clearly irrational and therefore it is ridiculous to legislate in this way. Nevertheless, this yes and no to abortion is the fashion in European legislation on this matter and no doubt the present Portuguese government wanted to keep up with the Joneses and avoid the hassle and discomfort of being considered retrograde and old-fashioned, surely not modern!

Take Italy as another example. In the last decade, to limit the harm as much as possible, the Italian Parliament has had to tackle, at least on two occasions, the divisive problem of what is the best electoral system and from time to time the governing majority has legislated on the strength of its temporary majority in spite of the opposition of the temporary minority. Well, they are at it again with the President of the Republic appealing to the government not to commit the same previous (and numerous) mistakes of resolving the matter by a simple majority vote in Parliament. It is easy to contrast this with our entrenchment of the electoral system- for better or for worse.

6. Perhaps foreseeing such consequences explains why the American Constitution is completely entrenched and any amendment which is proposed has to receive the assent of two thirds in each of the two houses, the House and the Senate. Included in that Constitution is a Bill of Rights which, among other fundamental rights, includes freedom from cruel and unusual punishment. But because "torture" as such is not expressly mentioned in the Constitution it did not deter John Yoo, of the Boalt School of Law of Berkeley, California, on request from the authorities, from submitting what is now considered the infamous Torture Memo to show that what the authorities did in certain instances in Guantanamo Bay and Abu Gharib was lawful. In writing the memorandum Prof. Yoo said: "My obligation was to make sure that what the President did was lawful"!

7. Can the framers of the American Constitution, and the other hundreds who followed them on the 26 occasions when the Constitution was amended, reiterate the two thirds entrenchment rule? Can our own legislators of 1974, including all the Presidents of our Republic up to the present incumbent, Eddie Fenech Adami, who voted the entrenchment provisions of our Constitution, really be accused that the concept which they upheld - the entrenchment of all the fundamental values to which they adhered - "show lack of confidence in the democratic process", as charged by Fr Serracino Inglott?

I do not think so. In fact, I think that charge is simply frivolous for it is completely divorced from the realities of a true democratic system and does not show any respect for the principles upheld by philosophers of law. These especially invoke a system which is thought to be the best that is able to achieve the desired stability required by the common good in a democratic society.

I have already had occasions in the past, in this newspaper (September 13 and 14 and December 27 of last year) to show why, in my opinion, a sound and solid democratic society cannot leave all the fundamental matters at the mercy of the ephemeral shifting fortunes of simple majority rule but must safely anchor the ship of state by entrenching them by means of the qualified majority rule.

8. The last charge, that "trying to entrench it is a bad sign because it seems as if one wants to use means of compulsion when these things should rest on conviction", betrays the theological bent in Fr Serracino Inglott's mind. Here we are dealing with politics and what is correct in the theological sphere has proved to be sheer madness in the political one where, indeed, the conviction of what are considered to be fundamental political values are not protected as much as is consonant with a democratic system of good government. Good because it has been time tested and has to withstand the temporary temptations of abuse of those same democratic principles. It is in the world of religion and faith where compulsion is to be completely prohibited and conviction is the basis of all acts.

The author is Chief Justice Emeritus.