Errol Mendes is a professor of constitutional and international law at the University of Ottawa, and the president of the International Commission of Jurists, Canada.
As an academic, I’ve taught constitutional law to generations of students over three decades in Canada and around the world. But in a single evening, my belief that constitutions, respected by institutions and supervised by an independent judiciary, can be the ultimate safeguards of a country was exposed as little more than a brittle, foolish myth.
On Jan. 31, the U.S. Senate refused to hear any witnesses in the impeachment trial of President Donald Trump, setting the stage for his eventual acquittal and ignoring a foundational democratic moral imperative at the most important trial process imaginable.
That same day, Britain withdrew from the European Union, more than three years after a referendum that was riddled with lies, illegal funding and racist rhetoric. The vote was followed by a divisive parliamentary process that included an unlawful prorogation request to the Queen that attempted to limit parliamentary discussion about a no-deal Brexit.
What clearer examples do we need that it is the strength or weakness of the morality of key decision-makers that determines the fate of countries, not the written or unwritten constitutions, nor the judiciary that is tasked with ensuring compliance with them?
What does democratic constitutionalism mean if a U.S. president is allowed to instill fear of electoral revenge in his party’s representatives in the Senate, or use his office to assail those who have attempted to stand up for the foundations on which the Constitution was built? What does it mean if future British (or Canadian) prime ministers can engineer an illegitimate prorogation to avoid defeat in Parliament as long as they can avoid the scrutiny of their top courts?
What does it mean if those same prime ministers can introduce omnibus budgets and bills that make it impossible for legislatures to properly examine what they contain, or if these leaders use the inevitable pressure of mass migration caused by wars, atrocities, poverty and climate change to raise fear of the other and establish a nativist regime?
But the deepening darkness in what were supposed to be the Western world’s leading democracies might prompt us to think beyond a mere faith in constitutionalism. Perhaps what we need is a real and explicit constitution centred around affirming democratic morality, rather than just relying on the unwritten ethical codes that exist primarily in non-legal norms, customs and conventions of each society – that is, right up until they get trumped by those for whom power at all costs is the ultimate goal.
Such a constitutional morality would be founded on such principles as a commitment to an independent appointment system for the judiciary and the public service; the obligation for a prime minister in a parliamentary system not to prorogue Parliament just to prevent legislative defeat; and a requirement for top leaders to disclose sufficient financial records that can demonstrate no past illegal activity.
There should also be a clear red line against the use of executive power to directly or indirectly undermine the rule of law, electoral systems, the rights of minorities and an independent media. If these crucial elements can’t be legislated or otherwise regulated so that there is no room to avoid them, then there is a crucial need for others in democracies to act.
Political parties are used by the thrashers of democratic morality to rise to power, and so it is ultimately these parties that have as much a duty to protect the democratic morality of a country as the established guardians of any written or unwritten constitution. Could major parties develop what they regard as the most essential democratic morality standards and have independent executive members or unimpeachable elder statespersons monitor them?
Such guardians should also be able to call out even the top decision-makers from their parties if required, so as to preserve those standards. We need more Mitt Romneys to safeguard the health of democracy.
Likewise, the media, universities, and yes, even the main religious organizations of a country should be involved in discussing and determining the most essential elements of a given country’s democratic morality standards, regardless of party affiliation. The risk of losing these standards is too high; the warnings of what happens when a democratic constitutional morality dies linger in the history of the downfall of democratic societies in Europe in the 20th century.
Constitutionality, clearly, is no longer enough. And as much as that lesson was a proverbial kick in the guts for me, that core tenet must still be defended by all of us.