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The constitutional order - André DeBattista

Photo: Mark Zammit Cordina

Photo: Mark Zammit Cordina

At face value, the desire to revisit and revise the Constitution seems to unite government, Opposition and civil society. While talk of the ambitious ‘second republic’ seems to have subsided, the quest for constitutional reform remains.

The question often revolves around what form this constitutional reform should take. If reforms are decided upon and piloted solely through a parliamentary committee with little consultation beyond the political-legal bubble, then the reform will be exclusive rather than inclusive.

However, a greater danger lies in having individuals who have no appreciation for the order that the Constitution establishes and the responsibility of public office. The lack of political education often means that many have a superficial (or inexistent) knowledge of the Constitution. Alas, this lack of awareness also seems to pervade the political class.

The Constitution establishes and regulates the relationship between the government and the governed – the State and the citizen. In establishing a structure of government, it creates a ‘power map’ which outlines where authority lies and how power is exercised.

More importantly, constitutions have the function of limiting the power of public office – regardless of whether officials are elected or appointed.

Without these limits and effective checks and balances, some individuals or institutions may end up with too much power, thus throwing off balance the careful order that a constitution should establish.

This lies at the heart of what the rule of law is. This concept, which has re-emerged as a central theme in political discourse, is the opposite of rule through arbitrary power. It ensures that everyone is subject to the same laws. Such laws must be clear, consistent, stable and practical.

When discussing issues related to the rule of law and constitutional reform, the political class should avoid three dangerous pitfalls.

Firstly, the rule of law is not a political slogan. It is a necessary prerequisite for a functioning democracy, a sound economy and stable socio-political relations. It is not an unchanging dogma but a governing principle which should permeate every governing institution.

Secondly, constitutional re­form is not a political football. If it remains so, the outcome will either be continued political deadlock or contested unacceptable reform. If allowed to be hijacked by partisanship, governing institutions can lead to nothing but injustice.

Thirdly, in the age of populism and populist politicians, there is a danger of viewing the constitutional order as an unnecessary restraint or a hindrance.

Populism often shows a disdain for the established way of doing things or for the high standards that public office should require of office holders. It advocates a style of politics where the end justify the means.

While discussing specific tangible reforms is necessary, we must also ensure there is a solid understanding of the principles which underpin the Constitution

This is a very dangerous route to embark on since it undermines the very system which is meant to ensure justice, stability and fairness while avoiding the arbitrary use of power. What ends, except for dishonest outcomes, can ever justify an erosion of the constitutional order?

A stable constitution establishes an order which distinguishes between the office and the office-holder. It has the purpose of protecting the citizen from the arbitrary use of power by both the office and the office-holder. It also should ensure that the dignity of the office is maintained even in cases of misconduct by the office-holder. In this scenario, the office-holder should also be subject to the law.

In other cases, the actions of people who occupy high public office may be discordant with the content of their speeches and public pronouncements. This discredits the political system and, in turn, leads to a widespread crisis of trust.

In his book on The English Constitution, the great essayist Walter Bagehot reflects on two aspects of the constitutional order – the ‘dignified’ and the ‘efficient’ parts. In his inimitable style, he contends that the two parts are “not indeed separable with microscopic accuracy, for the genius of great affairs abhors nicety of division”.

The dignified aspect “excites and preserves the reverence of the population” while the efficient parts ensure that the machinery of government functions on a day-to-day basis. Bagehot argues that every constitution which aims to be successful must have these two elements for they allow the legal instrument to “first gain authority, and then use authority”.

Indeed, a successful constitution, “must first win the loyalty and confidence of mankind, and then employ that homage in the work of government”.

The constitutional order, however, cannot solely aim to be ‘efficient’ or ‘dignified’. Although written in 1867, Bagehot’s treatise seems to pre-empt much of the questions contemporary societies face:

“There are indeed practical men who reject the dignified parts of government. They say, we want only to attain results, to do business: a constitution is a collection of political means for political ends, and if you admit that any part of a constitution does no business, or that a simpler machine would do equally well what it does, you admit that this part of the constitution, however dignified or awful it may be, is nevertheless in truth useless.”

However, he contends that this reasoning is flawed. Although the dignified parts of governments “raise the army” rather than “win the battle”, they nonetheless provide a necessary element upon which the “vital strength” of governing institutions depends. In our quest to have a more ‘efficient’ system have we, perhaps, lost sight of the ‘dignified’?

In view of the ongoing debates on possible constitutional reform, some soul-searching wouldn’t go amiss. While discussing specific tangible reforms is necessary, we must also ensure there is a solid understanding of the principles which underpin the constitution.

As citizens, our role is to engage, rather than retreat, from such debates. When referring to a document which establishes the relationship between citizens and governing institutions, it would be obscene if one part had to abdicate from its responsibility of engaging in the discussion.

André DeBattista is an independent researcher in politics and international relations.

andre.deb@gmail.com

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