Rethinking The Constitution

 The ongoing controversy concerning the role of the Service Commission and in particular its chairman is an appropriate time to re-examine the thinking that should go into the construction of a Constitution, since it would not be surprising in the very near future if proposals for Constitutional reform would be placed on the agenda. It must be recognised that reform of a Constitution is not about incantations such as section this or section that, but should involve a reassessment of inherited forms and the thinking that went into them. The purposes that they were expected to serve at the time and in the present, as well as in the future. Talk about presidential or parliamentary forms of a Constitution is really a discussion about the locus of power and the implications of its locus. In any programme of Constitutional reform certain basic issues must be confronted.

These comprise the consensus of the elites, the role that the State has to play, the ability to deal with emergency situations, the promotion of economic development and the security and welfare of citizens. Sometimes, goals contradict one another and one has to decide one way or another as in the famous conundrum between landlords’ rights and tenants’ wrong.  In relation to consensus, democratic theory notwithstanding, the approval of elites in a society is important, especially the political elites. The philosophical elites could debate adinfinitum about how many angels could dance on the head of a needle, but it is the political elites who fight political battles in the streets or in the legislative chamber. Their consent and agreement is mandatory, whether a ruling party has the majority or not. It is the elites who will have to work with the constitution and therefore it is they who must provide the support for the constitutional arrangements that are agreed upon.  Whether particular elite is in power or not it has to be convinced that it has a fair chance of achieving power and tasting the fruits thereof. 

The role of the State is equally important and the prospect of power is very much tied up with the role of the State, particularly in the economy and the wider society. Liberal democratic theory harbors a built-in prejudice against power on the assumption that all powers tend to corrupt. Others view power in a more positive light. Power, in their view, can be used to alleviate misery and equalise life chances. This in turn involves methods of election, criteria for voting or the adoption of a first-past-the post or PR system or some variant of them because in essence, the electoral system could favour one group of elites over the other.  The role of the State in relation to the economy is exceedingly important and the ideological battles of the late 19th and much of the 20th century had to do with the proper role of the State.  Today, it is claimed that we have reached the end of ideology but as recent developments in the Middle East have dramatically revealed, ideology is still very important. The new doctrine on the block seems to suggest that the State has to be a partner with the private sector or at times a facilitator. If that is so, there must be agreement as to how one can help the other. The private sector largely depends on the availability of capital, a productive labour force and stable government. If there is reason to believe that a government will not last very long then businessmen will hedge their bets. Stability and predictability are major prerequisites for the generation of confidence in the private sector. To achieve stability requires a great deal of thinking and re-thinking on party systems, issues like the right of recall, terms for prime ministers and representative institutions and social stability. The role of the public services and the trade unions as well are critical for the achievement of some of these objectives. 

Constitutional reform will have to ensure or should attempt to ensure that in the case of the public services they are far more accountable and productive, and trade unions will have to be concerned with what one minister recently described as the low productivity ethic. But these are fundamentally issues that have to do with rights and whether the rights enshrined and protected by the Constitution are compatible with these reforms and requirements. In relation to security and emergency situations the question of rights of citizens also need to be re-examined. As the problems of international terrorism have clearly demonstrated, local forces and the State must be equipped to deal with these situations. The Judiciary as the arm of the State, of course, has a critical role to play and the rules governing what is loosely described as the “separation of powers” have to be carefully thought out.  How judges are appointed, who makes the appointments, how they are to be removed, whether the DPP should be answerable for his decisions or not, systems of appeals and, of course, whether appeals to the Privy Council should be continued or not are all fundamental questions that need to be re-examined in light of emergency situations in the present and in the future. What the foregoing suggests is that there must be a clear recognition by those who would reform the Constitution of the problems they are attempting to address. From there, one can go on to examine the experience of similar societies elsewhere and on this basis to deduce what might be most appropriate for our circumstances. Above all, it cannot be the recitation of slogans or formulae. To go that way would be to doom us in reinventing the wheel.