19 Jan 2009

The making of our Constitution

The issue of constitutional change has once more shot to the top of the national political agenda with the laying in Parliament of the "Working Paper on Constitutional Reform" by Prime Minister Patrick Manning.

Perhaps symptomatically, the document was almost immediately immersed in controversy. Sir Ellis Clarke, who was named by Mr Manning as one of the gentlemen of the "Round Table" responsible for preparing the document, issued a statement indicating that as far as he was concerned the document laid in Parliament by Mr Manning was not a draft constitution but a "working paper" and should never have been made public in that manner.

Other commentators, perhaps more concerned with substance than form, lost no time in roundly criticising the document. Many of them, notwithstanding the fact that the entire document is still not available to the general public, were quick to label it as a blueprint for absolute dictatorship.

Interestingly however, in the midst of the general chorus of denunciation, there were one or two voices which asked what perhaps is the most crucial question of all. Why, they asked, do we need constitutional reform? What is wrong with our current Constitution?

These questions deserve a clear and serious response if only because in answering them we are able to identify what really is the fundamental flaw of the current documents generated by Mr. Manning and his gentlemen of the "Round Table".

Simply stated the fundamental problem with our present Constitution is that it lacks legitimacy. What this in effect means is that, for the most part, the citizens of this country do not recognise the Constitution as the embodiment of their will. They have neither allegiance nor commitment to the Constitution as the codification of agreements which they have freely and fully entered into, with other citizens, to define and detail the rules under which we all shall live.

The question has been also asked as to whether constitutional reform can solve the problems of crime, of health, of education and of the economy. And the answer is simple. By itself a constitution cannot solve those problems. But what is critical for us to understand is that without a legitimate constitution those problems cannot be solved. Ever.

We have to be clear that the major and more intractable problems of any society cannot be solved by any government, regardless of how brilliant or insightful the policies and prescriptions they advance, unless such policies and prescriptions enjoy the support and commitment of the citizens and they, the citizens, are prepared to work with the government to ensure that such policies and prescriptions succeed.

However, such commitment and effort will never be forthcoming unless the citizens feel themselves to be secure as to their place in the land and perceive themselves to be fairly, justly and equitably treated under the rules, the institutions and the arrangements under which they live in the society.

And that, after all, is what a constitution in its essence is: the rules, institutions and arrangements under which the citizens in any country live. The constitution is legitimate if the vast majority of the citizens agree with and are prepared to live under and abide by those rules and arrangements. If there is no such general agreement to abide by the rules and arrangements then the constitution can never be legitimate.

You would notice that, in all of this, I have not spoken of any specific provisions, laws, arrangements or institutions that should or should not be in our Constitution. For in fact it does not really matter what the provisions of the constitution are as long as the vast majority of citizens agree with them and agree to abide by them.

So that our current Constitution is flawed and needs to be changed for precisely the same reasons that our original independence Constitution was flawed and needed to be changed. It is flawed because the process used to define, develop and detail its rules and arrangements did not incorporate the widespread and active engagement and agreement of the citizens and was therefore inimical to the possibility of it accruing to itself any degree of legitimacy.

Not too long ago in one of my columns I wrote the following: "The core problem of our society is our failure to construct a viable system of governance; that is, an agreed upon set of rules of engagement defining and anchoring the relationship between government and people and among our people.

We do of course have a written constitution but the constant state of turmoil in our politics and our society is a testament to how inadequately that constitution reflects the views and instincts of the population with regard to the fundamental question of how shall we live.

Our original independence constitution was never the product of any discussion and debate among the population as to the answer to that question posed above. Subsequent constitutional reform"

If 50 years ago we made the mistake of trying to put together a constitution without the participation and political involvement of the people, it might be suggested, as an excuse, that we were inexperienced in the ways of constitution making. But there can be no excuse for us to make the same mistake again fifty years later. It is simply and utterly foolish.

As one political scientist, Vivien Hart, a professor at the University of Sussex, wrote in an article entitled"Democratic Constitution Making":

"How the constitution is made, as well as what it says, matters. Process has become equally as important as the content of the final document for the legitimacy of a new constitution."

And that is really all that needs to be said about Mr Manning's "Working Document".

Michael Harris

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