“WE BELIEVE that the Constitution should reflect the collective will of the citizens of this country,” said Prime Minister Kamla Persad Bissessar at last Saturday’s launch of the constitutional reform consultations. This is nonsense.
Ms Persad-Bissessar should not be blamed for speaking nonsense, however, since she is only echoing the same mistaken view spouted by all political analysts, political commentators, and other people who prefer rhetoric to thinking. First, there is no such beast as the “collective will of the people”. This error is routinely made by commentators when reviewing election results. On the Tobago House of Assembly election outcome, for example, one columnist gave this standard interpretation of the total PNM victory: “Tobagonians, it is now clear, went out to the polls last Monday in record numbers, determined
to make a statement which left no room for doubt.”
But did Tobagonians really want the PNM to control all the seats in the THA? Obviously not, since the Tobago Organisation of the People got 36 per cent of the votes cast. Moreover, can it be said that those who voted for the PNM (or, perhaps more accurately, against the UNC) expected this outcome? Again, this would only be possible if there was some mechanism whereby individual voters could communicate with one another so they would know in advance the aggregate consequence of their choice. And the fact that a UWI poll showed that most Tobagonians do not want the THA to have exclusive control of the island’s affairs implies they would not want one party to have total control of the THA, either.
So the term “collective will” can at best mean only the will of the majority. Which brings me to my second point: constitutions were invented, in part, to ensure that the will of the majority was constrained.
This, after all, is inherent in the concept of “rule of law”, which is a rejection of the traditional “rule of men”—i.e. power would no longer be exercised by the whims of powerful individuals, but according to established rules and procedures.
Now, of course, this concept was created (and created only in the West) because certain persons and groups grew so powerful that some sort of formal negotiation became necessary for the monarch to raise funds and reduce internal rivalries. And the original charters and treaties which were the precursors of constitutions were written primarily to consolidate these groups’ power. However, inherent in all constitutions
was the notion of the “citizen”, which in principle meant that every individual has the same rights as every other, regardless of status. This was why the original American constitution had a caveat mandating that slaves were only three-fifths of a person.
But it is the concept of a citizen with equal rights that makes nonsense of the idea of “collective will”. Certainly, one might reform the Constitution to cater only to the majority, but this would then mean that the very building block of the Constitution—the citizen—is meaningless.
This is known as the counter-majoritarian difficulty. The legal philosopher Ronald Dworkin has argued that democracy is exercised, not so much by majority votes in legislatures, but by exercising equal concern and respect for all citizens. In practice, this means ensuring
that a Constitution affords equal protection to minorities within a society.
This is particularly important for a multi-ethnic society like ours, but it is even more important for a society where the average
person holds views which are not likely to help the nation progress—like ours. After all, this is a place where over 90 per cent of the people believe that the best solution for crime is hanging; where more than 80 per cent think that licks is an effective method for disciplining children; and where two-thirds of the populace are prejudiced against homosexuals.
Since this represents the “collective will”, does this mean that such views should be enshrined within the Constitution?
Ms Persad-Bissessar also raised the issues of right of recall and term limits as two reforms she would like to see. But should these changes be made just because most citizens want them, or should the decision be informed by criteria which the majority do not adhere to, such as empirical data or logical argument or philosophical rigour?
Term limits may work well in large societies in which politicians
must cater to divergent interest groups to stay in power. In smaller societies where bloc voting determines election outcomes, term limits may exacerbate feeding frenzies by politicians in their final term. Data collected by political scientist Bruce Bueno de Mesquita suggest that this is, in fact, what happens.
American law professor Kent Greenwalt, discussing constitutional constraint in an essay on legal interpretation, asserts: “One reason why an old constitution is now valuable, and thus binding, is that it provides a shared set of answers to fundamental political questions.”
All reforms should be based on good answers to such questions, which our present Constitution does not contain.
NOTE TO READERS: My Hotmail account has been hacked. My new e-mail address is email@example.com