Monday, January 22, 2018

A requirement of democratic legitimacy


Fyard Hosein

Donstan Bonn

 Our Constitution is our supreme law. That must be the starting point. We are entitled to make a fuss about it, more so if it is going to change the way we choose our political leaders. We are entitled to understand the changes being proposed and the way they are going to affect our lives. It is the political and social contract by which we the people have agreed to regulate our relationship with the State.

The more discerning amongst us may want to know about the true intent and purpose of the provisions being offered up for parliamentary consideration or whether they will attract a literal meaning, or a broad and generous rather than a narrow or pedantic interpretation. So be it. The nub of the matter is that the requirement of constitutional validity is a matter of form. What is of greater value is political legitimacy. Parliament in all its glory is subject only to the Constitution. We are at a political junction where the opponents of the proposals are, in Eastwood’s Dirty Harry style, saying “make my day”. They might have overstated their case. It is left to be seen. 

Necessarily, constitution-making is a consensual and not unilateral act. This is the reason why we had extensive consultations at Queen’s Hall and at Marlborough House in the pre-independence period. The mandarins at the Colonial Office knew that for independence to succeed the constitutional arrangements must be transparent and must enjoy popular support, free from suspicion. The then opposition to their credit held good their position on the Bill of Rights amongst other things. They won the day on those issues. Those principles remain with us today and have served us well. This is so notwithstanding the unilateralism that was so arrogantly displayed by the 1971 Parliament when it enacted the Republican Constitution of 1976. 

The need to carry the society in this process goes not only to making a good parliamentary decision. It goes further into the realm of acceptability by the governed. A decision that is acceptable endures. No better example can be found than in the American experience at Philadelphia in the 18th century and its aftermath. The French know it as well because their experience has not been so good. Their revolution of 1789 was followed by bold and then overreaching provisions that failed to save it. It eventually gave rise to the Reign of Terror and to the Bonaparte dictatorship.

 Constitution-making is a slow, and often painful and tedious process. Even we know that. In all the commissions so far, be it the regarded Wooding or Hyatali commissions and the not-so-regarded last one, our parliaments have consistently used the commission process as a device to satisfy the requirement of political form. This was so even in the face of the seminal work by the Wooding Commission, which will always be the pukka—if you forgive the Urdu expression—standard regarding public consultation, reporting and independence. 

 The promoters of constitutional change must therefore approach it with all the savoir-faire and finesse they can muster. The population has the political sophistication to readily discern merit from partisan political advantage. Even if we acknowledge the fact that in any society there is bound to be resistance to change based a pure political dynamic, no matter how compelling the argument for it, the imperative of the promoters of this change is to carry the society. 

For that to happen the proposal must have merit. It does not help the argument that one of the proposed provisions which does not appear to meet the requirement of genuine consultation with the public, was introduced as a seeming afterthought and is perhaps the most far-reaching. That, coupled with an insistence on a requirement of a simple majority, is bound to promote disquiet. A great deal of political capital has to be expended to promote a far-reaching change which is not well understood.

In the end the defining principle is democratic legitimacy. The provisions relating to the run-off is defining of many values. All our major parties were once third parties. Even third parties, many of whom in our short history have not made government, have created defining movements. If we are to reduce the options of political participation in the run-off then we must do it consciously and, even perhaps more importantly, honestly. The last constituency that has to be satisfied in making these new arrangements is the Parliament. Parliament can certainly have a go at it. Even the courts, if moved, may have their opinion. In the end, if it has to last, it will turn on public trust.