THE AUSTRALIAN AND INDIAN CONSTITUTIONS, SIMILARITIES, DIFFERENCES AND THE CHALLENGE OF CONSTITUTIONAL CHOICE

In this article, based on an address to the India Law Institute in New Delhi, the author, a former Justice of the High Court of Australia lists ten features of the constitutions of Australia and India that exhibit similarities; ten features where there are sometimes marked differences; and two areas of operation that illustrate the fact that in constitutional adjudication, especially, judicial decision-makers face what Julius Stone described as “leeways for choice”. By reference to decisions in Australia and India on issues of race, aboriginality and human sexuality, the article identifies the inescapable challenge of choice and suggests useful guideposts.

Nigeria’s Permanent Constitutional Transition

This chapter examines how Nigeria has made the transition under military rule from a relatively decentralized, parliamentary federation comprised of four ethnic regions to a centrist, presidential federalism with thirty-six states. It first provides a historical background on Nigeria’s constitutional evolution between 1914 and 1999 before discussing the period of constitutional engagement, focusing on the military’s Constitution-making procedures and especially its territorial restructuring initiatives, its centralization of constitutional functions and fiscal resources, its constitutional choice of a executive presidential system of government, and its establishment of the so-called agencies of restraint. The chapter also considers the outcomes of the military’s constitutional reforms and concludes with an analysis of lessons that can be drawn from the Nigerian case. In particular, it highlights the challenges that have developed since the return of civilian rule, giving rise to a relentless constitutional politics that underscores the permanent or continuous nature of Nigeria’s constitutional transition.

Bicameralism

In modern democracies, the legislative power is vested in parliaments with diverse organizational structures. Bicameral legislatures, requiring concurrent deliberation by two bodies, are present in about one-third of the world’s countries. Bicameralism typically serves the important purpose of accommodating the representation of heterogeneous interests from distinct social cleavages or geographic entities, but it is also associated with advantages such as greater stability of policies, increased accountability, and better quality of legislation. These benefits, however, only arise under specific circumstances, and the greater procedural complexity brought about by two chambers is not without costs. Disagreement between the two chambers often leads to costly legislative gridlock. Bicameralism can also open the door to pressure groups advancing their requests for favorable legislation when the chambers do not have time to carefully consider its consequences. The constitutional choice of bicameralism and its optimality ultimately rest on the subtle balance between its costs and benefits.

Constitutional Choice

The previous chapter argued that a publicly justified legal system must identify and protect a scheme of publicly justified primary rights. But even a rights-protecting legal system needs help in realizing its social functions because we sometimes need to ratify, repeal, or reform the law. Toward this end, chapter 6 develops a three-stage model for how to choose constitutional rules that govern the shape of the law. Constitutional rules are publicly justified under three conditions. They must identify and protect a system of primary rights. They must then manage errors in the imposition of law, minimizing the passage of unjustified law and the failure to pass publicly justified law. Finally, constitutional rules must be self-stabilizing in the sense that they can both maintain themselves in existence despite external shocks from self-interested actors and provide assurance of cooperation to those who usually comply with the laws that constitutional rules produce.

Primary Rights

The ideas of moral peace, a system of trust, and public justification explain the need for a legal system that corrects and stabilizes moral rules that form the basis for social trust. Legal rules gain authority when they improve upon the system of moral rules. But some of society’s moral commitments merit protection over and above the law by constitutional rules that govern the ratification, reform, and repeal of laws. This chapter develops an account of the most fundamental constraints on justifiable constitutional rules—primary rights. Primary rights are rights that anyone with a rational plan of life would want for herself to pursue her conception of the good and justice, and ones she is willing to extend to others on reciprocal terms. These rights merit moral, legal, and constitutional protection, and begin the process of constitutional choice.

Helping the Rebels

In a pair of recent papers, Allen Buchanan has outlined an ambitious account of the ethics of revolution and its implications for military intervention. Buchanan’s account is bold and yet sophisticated. It is bold in that it advances a number of theses that will no doubt strike the reader as highly controversial; it is sophisticated in that it rests on a nuanced account of how revolutions unfold and the constraints that political self-determination places on intervention. He argues that, despite the importance of political self-determination, humanitarian intervention may be permissible without the consent of the rebelling population. Indeed, given certain structural features of revolutions, there are often reasons to disregard the consent of the population oppressed and intervene before the revolution starts. More controversially, he argues that military force may be employed to nullify the democratic constitutional choice of the newly liberated population and impose a particular form of democratic government, if this is necessary to guarantee the conditions for the future exercise of self-determination. In this paper, I further elaborate Buchanan’s account of political self-determination and argue that once correctly understood, it places tighter constraints on intervention than Buchanan allows. Thus, his bold conclusions should be resisted.