Constitutions: We the People

ZEE JLF@The British Library

Chintan Chandrachud, Swapan Dasgupta and Helena Kennedy in conversation with Patrick French

Constitutional experts all over the world are examining the challenges faced by new and changing political realities all over the world, and how to understand and implement established legal systems in a shifting context. This important session, presented by the Aga Khan Foundation, discussed the separation of powers, lines of accountability and the balance of judicial activism and restraint.

Dasgupta framed the Indian constitution as ‘constructional patriotism,’ claiming that it has created a sense of nationhood that is both cultural and legal. For Chandrachud, in contemporary popular India, anything that is not constitutional is considered wrong or anti-Indian. He counselled that we should not always be trying to adapt the constitution but to draft new laws, as historical constitutions cannot always meet the challenges of the modern world. the shift of power from the legislators to the courts.
Kennedy cited Trump’s first 100 days as an example of this, describing this period as a showcase of degrading the American constitution. His use of nepotism – putting his family into positions of power – should not have been any more possible than the ways he has tangled his business dealings with those of his Presidency. And yet he has been able to do so. French surmised that the vagueness of the American constitution on the role of the President is why it has been so limited in its ability to hold Trump to account so far. It was predicted that after Trump’s term, the constitution would be redrafted, to limit Presidential powers in the future.
Kennedy observed that a constitution can be both aspirational and inspirational, and noted that as a nation, the UK does not have a written constitution. Instead, the UK works on the basis of custom and accepted practice, both in law and less codified traditions. Like many countries around the world – including India and the United States – the UK has drawn much of its inspiration from the Magna Carta. The Human Rights Act is an example of this, which has, over the 17 years of its existence, introduced rights language into common usage in Parliament in a way not previously possible.
However, Kennedy qualified that the Magna Carta had its limits, describing it as “a totem where people first made a claim to rights: it doesn’t give much away – it doesn’t mention the rights of serfs or women – as a symbol it is more powerful than what it actually contains.”

Dasgupta pointed out that it was dangerous to be able to limit political power by appealing to a constitutional straitjacket. Kennedy agreed, adding that we become particularly vulnerable to this, when people had lost trust in politicians. At that point, they turn to the judiciary for guidance and review, and as such, “We the people have been part of giving the judges this incredible power.”

The example of Brexit was cited. After the referendum, UK politicians debated whether the Prime Minister could trigger Article 50 without consultation, or should it be brought back to Parliament to be voted on first. The challenge went through the courts for a legal constitutional decision. In the end, three of the eleven senior judges ruled in favour of triggering Article 50 without a Parliamentary vote, on the grounds that it wasn’t for the judiciary to be involved in political decisions. The senior judges against this motion were described in the mainstream media as ‘enemies of the people’.

Chandrachud observed that a Referendum was a flawed way to capture a sense of the people’s will, and it felt wrong to that the fate of a nation had been put into the hands of three judges, over a vote that was won by such a small margin, yet would have such huge consequences. He believed that leaving Europe would make ordinary people in the UK poorer. Dasgupta observed the grey area of rights of the people is an occupational hazard of a democracy.

– By Paula Van Hagen

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