Majorities and entrenchment

I would like to offer some comments on the article by Kenneth Wain (Good Science, Bad Morals And Entrenchment - August 18).

I must say that I agree with his first contention that good science has very little relevance for proper morals. Having said that however, Michael Asciak and the Bioethics Consultative Committee of the House of Representatives did not, as far as I can see, pass from fact "is" to moral norm "ought" and thereby commit what Prof. Wain incorrectly calls the naturalistic fallacy.

If I am not mistaken, what I think the committee tried to do was to establish what "conception" means from the scientific point of view. Which task, incidentally, in my opinion, had very little relevance to the matter of whether or not to extend the protection of life from the moment of conception (whatever that may be, in scientific terms) onwards.

This is, I presume, the whole point of the exercise which is being debated - whether the fundamental right to life, which is at present clearly protected from the moment of a live birth, should be extended to include life from the moment of conception, thereby removing certain doubts in view of the abortion laws fashionable in so many countries.

All fundamental human rights are entrenched in our Constitution. The list of those rights is headed by the right to life. This entrenchment has been with us since 1961 when it was introduced in what is called The Blood Constitution and endorsed by the Constitutions which followed in 1964 and 1974.

Prof. Wain considers that what happened then were "open attempts to put a block to the freedom of future generations to decide for themselves on their morality and on their way of life".

Exactly so. I do not know what Prof. Wain understands by fundamental basic human rights. The world has learnt, after the terrible experiences of man's inhumanity to man in the 19th and 20th centuries, that it needs to lay down a minimum list of human rights which are to be considered so fundamental as to protect them from the whims of change which single democratic majorities are tempted to effect.

Prof. Wain is a believer in modern democracies. At the same time he believes in the principle of simple majority. But this is an untenable position. Most modern parliamentary democracies recognise and lay down fundamental basic rights which are so because they cannot be changed by ephemeral simple majorities which come and go.

Entrenchment is a salient feature of modern parliamentary democracies while trust and belief in single majority democracies are relics of pre-1945, now "old democracies". It is to this category of old democratic systems that Prof. Wain pays homage.

Entrenchment of fundamental rights varies from one Constitution to the other. They all however have one characteristic - they subject all kinds of changes to the fundamental and basic human rights to a special majority as against the simple majority rule.

An extreme example of this comes from one of the most modern democratic Constitutions - that of the German basic law. This does not even grant to a unanimous parliamentary vote the right to touch fundamental rights therein stipulated. In fact, it can safely be argued that nothing short of a revolution can effect a change of the entrenched provisions.

This evidence however does not deter Prof. Wain from depicting all these legislators who had a hand in "entrenchment" as "arrogant and paternalistic because it (the question of entrenchment) is based on the premise that future generations cannot be trusted to make the right or the wisest choices for themselves".

These "arrogant and paternalistic" legislators are the modern democrats who have learned the lesson that simple future majorities cannot be trusted not to use their power to deny fundamental rights. Prof. Wain himself - as a believer that simple majority rule should prevail - would surely accept a denial of, say, his fundamental right to be exempt from torture of any kind if a new law is enacted by Parliament which, by a simple majority, lays down that torture is necessary in our fight against terrorism. It has happened elsewhere even in a democracy (old type) and it could happen here.

Certain, though not all, fundamental rights are based on and are an expression of moral beliefs - whether Prof. Wain recognises this or not. Whenever a moral belief acquires a universal consensus, indeed, it tends to expand into a legal structure for protection - vide the Universal Declaration of Human Rights of the United Nations of 1948 to which all nations solemnly subscribe on becoming members.

So it is with the European Convention of Human Rights. Both these great achievements, incidentally, mark the triumph of the natural law theorists after a long and protracted historical battle with all sorts of positivistic and liberal jurists.

Prof. Wain should not worry about the moral beliefs or the democratic credentials or even the self-image of our Parliament when it deals with problems of entrenchment. That is the hallmark of that modern democracy which, unfortunately, he has not yet embraced.

It seems that his belief in the single majority democratic principle is the key to the resolution of all problems of a political, moral, social or legal nature. But this thinking is outmoded and has been relegated to the inglorious historical experience of the 19th and early 20th centuries. It has not been able to secure adequate legal protection to fundamental human rights without those entrenchment clauses in democratic Constitutions which deter change by a passing political simple majority to suit its whims.

Prof. Mifsud Bonnici is Chief Justice Emeritus.