LONDON — There is all the difference in the world between democracy and constitutional democracy.
Democracy alone, in the sense of votes, elections, ballot boxes and political parties, is an unanchored force. It can lead to stable societies, but it can just as easily lead in a quite different direction, pushing the ship of state onto the rocks of one-party rule, the cult of personality and all the paraphernalia of tyranny. In the 20th century, this occurred again and again, most notably in the open and “democratic” election of Adolf Hitler in Germany, with hideous consequences.
The point is worth making again today when there is so much talk of bringing democracy to the Middle East. Elections alone may sound democratic, but what if they simply lead to extreme Islamic majorities that then suppress all opposition, as is all too likely in some of them, such as Iraq, and has long since occurred in places like Iran.?
All the speeches about democracy then simply end up by creating more autocracies and dictatorships.
This is why the “anchor” of a proper constitution is such a vital component of the democratic process. It holds society in place. In the words of the Oxford English Dictionary it is “the system or body of fundamental principles according to which a nation or state is governed.”
But here’s the snag. Constitutions are not to be had ready-made and off the shelf, to be rolled out and placed alongside elected governments as “proof” that a country is now “democratic.”
Constitutions are the most delicate and complex constructions, requiring that they be patiently built up, layer upon layer, like the finest lacquer or the most exquisite enamel. History is the store of common experience from which constitution-makers draw. Every nation has a different past and therefore different needs to provide it with an enduring and workable constitutional framework.
This is why constitutional reformers everywhere need to proceed with the greatest caution and respect for what has gone before. The eager reformer who sweeps in and wants to tear great holes in the constitutional fabric does so at his or her peril. Once the constitutional anchor is damaged, what is left may look like democracy but could drift away into either anarchy or worse.
Besides, constitutions are not just about government in the formal or official sense, and their promotion and improvement should never be left to politicians alone. A working constitution must embrace all the centers of power in society — not just the body politic but the judiciary, the press, the labor organizations, corporate business, professional bodies and many others. All these must be bound by constitutional restraints and must by their own behavior act as the pillars that a sound constitution always needs.
This applies just as much to those who are trying to develop quite a youngish constitution, such as in Japan at this moment (although from an old growth), as to those in Britain who are seeking to alter a very old constitution that has come down to the present generation through hundreds of years of development — from precedent to precedent, always adapting but always resting on a solid foundation of beliefs and customs.
Modern Japan, born again in 1945 out of the ashes of disaster, and determined, to its credit, never again to wage aggressive war, now has to decide afresh how to defend itself in the new conditions of global terrorism.
In Britain, the same challenges of global terrorism are placing stresses on the ancient liberties and rights that make up the country’s unwritten but deeply entrenched constitutional system and settlement. In the name of national security, the British government is currently trying to bring in laws that would involve detention of citizens without trial or charges — in effect overturning one of the most treasured of English liberties enshrined in the 13th-century Magna Carta — that no free man shall be deprived of his freedom and held in prison, without clear charges and due trial — the so-called habeas corpus principle.
To question something so fundamental to the law and the constitution is, for any government, like putting its hand on a high-voltage cable. But for the present British government, this comes at a time when it has already acquired the reputation of a constitutional meddler. Laws to change ancient parliamentary procedures, laws to curb the powers of the Upper House (House of Lords), laws to reform the judiciary and set up a new supreme court, laws to curb free speech where it is deemed to promote religious hatred — all are in the pipeline.
And coming up on the horizon is a massive new law to bolt on to the British Constitution, a new and superior legal order and a new pattern of rights in the form of the Constitution for the whole European Union.
Unsurprisingly, all these proposals for altering the British Constitution have met with enormous resistance and run into endless obstacles. This should not be a matter for regret. All constitutions need amendment through the ages and they must be flexible enough to bear this. But such changes must have the approval of the widest possible section of the community and be carried through with the greatest possible respect for society’s customs, habits and sensitivities.
Attempts to take hurried shortcuts, or to push through changes on a partisan basis by sheer weight of elected majority, may sound democratic, but they are not. True democracy is not just a simple matter of collecting the most votes. Without being rooted in sound and universally accepted constitutional principles it is meaningless, at best a sham, at worst another destroyer of liberties.
This is the lesson that aspiring democrats in the Middle East will have to learn. But it is also a lesson of which the present generation of political leaders in the more mature democracies, such as Britain and the United States, need constantly reminding. At the moment it seems in danger of slipping their minds.
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