Suri Ratnapala is the Emeritus Professor of Public Law at the University of Queensland.
A third of adult Australians do not know that this nation has a constitution, according to survey results published in the Sydney Morning Herald on February 21, 2015. Does it matter that one in three electors have no idea of the constitution? I think it does at several levels. First, it reflects on an education system that neglects or leaves no serious impression on students of the fundamental law of the land, the cornerstone of the rule of law and the basic liberties that we enjoy. There are other reasons.
In one sense, the disengagement of many people from the constitution is a sign that the system is working. We tend to notice some things only when they hurt us personally and, by and large, the constitutional system has served us well. This complacency though poses dangers to the free society that most of us take for granted. The reason is that the constitution is not just a piece of paper on which noble ideas are declared. The pious pronouncements of many constitutions have proved meaningless where they fail to command the reverence of the ruling classes and the citizens. Nations such as Zimbabwe, Venezuela, Brazil, Pakistan and Russia, to name just a few, have decent constitutional documents but fare poorly on any index of constitutional government. In contrast, the United Kingdom has no written constitution and New Zealand’s Constitution Act 1986 can be changed overnight by an ordinary act of parliament. Yet these countries have enviable records of maintaining democracy and the rule of law.
Australia’s constitution is far from perfect. The separation of powers is ill defined and basic liberties are not expressly guaranteed. Some protections such as the right to compensation for property takings do not bind state governments. The limits of executive power are imprecise. Rights and duties of citizens are often decided by tribunals wielding enormous discretionary power. The federal distribution of powers is precariously balanced. The state of fiscal federalism is one of the worst among federations. Yet, Australia ranks high as a democratic and law governed nation.
What are we to make of all this? The experience of nations shows without the slightest doubt that having a constitution is not the same as having constitutional government. Constitutional government is a government of limited powers that secures substantial freedom under the rule of law. This is the kind of state that Aristotle called Politeia. Its modern names are Nomocracy and Rechtsstaat. It is the government of laws and not of men, what F A Hayek called the Constitution of Liberty. Such a constitution exists not simply on paper but in the daily experience of the people.
Constitutional documents are important and we must know what they say and mean. But not everyone, even some lawyers, can command the intricacies of constitutional law. What is absolutely necessary is that the basic values and doctrines of the constitution are understood and embraced by officials and the general public. Constitutional government is sustained ultimately by a robust set of less formal supporting institutions and a civic culture that understands and values the priceless freedoms that form the basis of our civilisation.
Consider a simple example of how background institutions determine the operation of the constitution. We take for granted the independence, impartiality and competence of judges, prosecutors, practising lawyers and law enforcement officers. Yet, the system works only because of the professional integrity of individual office holders. Professional integrity is the result not only of laws and personal qualities but also of traditions and opinions that shape the behaviour of professionals. This is not the case in many countries where political pressures, physical threats and the suppression of free and open discussion make the impartial administration of justice impossible.
The success of the constitution therefore depends ultimately on the strength of the popular understanding of its defining values. The general public cannot be expected to know the sophisticated jurisprudence of the constitution but they must know its cardinal features and above all the essential conditions that sustain the constitution. These include the freedoms of speech and association, the culture of toleration of dissenting, even offending views, equal treatment of all persons under the law, the limited role of the government as a defender of rights and liberties of citizens, democracy not as the battleground of special interests but as the means of making just laws and of calling to account the conduct of elected governments and the eternal vigilance of an informed public. The promotion of this understanding of constitutional government should be primary purpose of civic education.