The Malta Independent 21 October 2017, Saturday

A pocket-sized Constitution

Mark A. Sammut Sunday, 6 August 2017, 08:00 Last update: about 4 months ago

Up to now, Malta is a liberal democracy. Or, at least, it should be.

"Liberal" in the traditional sense, that is, the Maltese State allows its citizens to engage in business enterprises and to own property without too much interference. Indeed, if the State takes away that property, via expropriation, our laws even contemplate obligatory compensation by the State. (Whether the compensation is adequate and reflects fair market value or not is another story.)

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It is a democracy not in the sense that the winner takes it all, but that the majority should respect the minority, At least on paper. In practice, it has turned out to be a difficult aim to achieve. And, let's face it, it's not just in Malta. Striking the right balance between rewarding one's loyalists and respecting the minority which did not vote for the government of the day has been a huge headache for any self-respecting democrat everywhere in the world.

But Malta is also a democracy because - again, at least on paper - the Maltese State respects the rule of law. The opposite of the rule of law is the triumph of the will of whoever is in power. In a real democracy, the law is superior to personal rule. Nobody in a healthy democracy has the right to claim that s/he is the State. The State exists as a construct of the law. Its origins are outside the law, but the State lives within the law. Indeed, the State is a living being; we are in it (we are its citizens, all theoretically equal) and it is in us (it gives us its nationality at birth - in this, at least, we really are all equal).

Again, this is all theory. And as we know, theory does not always work in practice.

This is why a good Constitution has to be endowed with mechanisms that do not depend on the goodwill of politicians and State officials and the goodness of citizens, but has to function despite human wickedness. This simple but groundbreaking idea is the basis of that other idea, namely that the organs of the State should be separated, so that no State power can influence another. In theory, each State organ (be it the Judiciary, the Executive, or the Legislative) should be able to carry out its functions independently of the others.

Again, this is all theory. As things have developed in practice, it works out quite differently. Not always because of human wickedness (even though there are many such cases), but also because of human frailty and - the most frequent case - because of circumstances.

So when one hears, as one has heard over the past few years, of a constitutional convention to draft a new Constitution, one rejoices. Mostly because it will be the occasion to reform certain practices which have evolved organically, outside the original design, and are not necessarily beneficial.

The modern idea of a Constitution is a legacy of the Enlightenment. What the philosopher Immanuel Kant had to say about the Enlightenment is probably the most important reflection on it. (I have recently criticised Kant on some of his teachings, but on this one I think we can all agree.) Kant argued that real Enlightenment means public reason. In other words, the government of a country is subject to public reason. A constitutional document does not exist in vacuo but exists within a community of people who reason, and reason in public.

To my understanding, this means that the constitutional document is not to be drawn up as one would write the manual of some domestic appliance.

Instead, it has to be drafted as a living document which responds primarily to the standards set by reason. The interpretation of a constitutional document is therefore to go beyond a mere positivist reading and be inspired by a higher set of principles - which could probably be referred to as "moral".

A positivist reading means a reading of the text which seeks the meaning of the text only within the text itself. It does not dare to invoke higher principles, which it considers uncertain and arbitrary. If rules are not written, they cannot be invoked.

Yet, such an approach is probably fatally flawed for many reasons, which we shall refer to only two. Firstly, because no set of rules can foresee all the circumstances that the future might have in store. Secondly, because reason dictates that the needs of a group of human beings - a community, say, or a society - are superior to the dictates of a document. In other words, the Law, as a living mechanism, is superior to the will of anybody as expressed in a document.

What is moral or immoral can be discerned through reason, at least in theory. In practice, it first appears as a hidden or latent psychological need, and only later, upon reflection and meditation, it might surface as a reasonable proposition. A good judge - for it is judges who usually interpret a constitutional document - is one who manages, wittingly or unwittingly, to read the signs of the times, the hidden or latent needs of a society, and to transpose those needs into his interpretation of the constitutional document.

But the judge is not alone in this endeavour. The members of the community, or society, contribute through public reason, through reasoned discussion.

Again, let us not fool ourselves. This is all theory, and practise might teach us that in reality people do not discuss reasonably but mostly seek their own selfish and possibly petty objectives. Yet, there are moments when public reason can overcome these obstacles, and seek a moral understanding of the constitutional document. The judge's role is to mediate between public reason and latent needs on the one hand, and the constitutional document on the other.

Thus can a society truly be enlightened.

Many of the principles of the Enlightenment were tested during the French Revolution. This watershed moment in the history of Europe and, through historical accident, of much of the world, took place over more or less a decade, in which France was the laboratory of quite a few constitutional experiments.

At that same time, Britain too was experimenting, and some of its experiments were conducted here in the Mediterranean, e.g. the short-lived Anglo-Corsican Kingdom of the 1790s and the de facto protectorate in Sicily of 1805-1815.

The French Revolution put into practise an idea which had occurred to the English before them. During the Revolution of 1688, Cromwellian revolutionaries had wanted the law to be published in a pocket-sized book, well within the grasp of the ordinary citizen. The French did just that, and published the French Constitution as a pocket-sized booklet (see photos).

On the eve of the much-expected constitutional convention, the government might wish to consider distributing pocket-sized copies of the present constitutional document to allow citizens to read and acquaint themselves with it. They will then be better equipped to contribute to public reason, by criticising the present Constitution, where this needs to be done, and, more importantly, to participate intelligently in the public debate.

Otherwise, it's gonna be one helluva mess.


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