quarta-feira, 17 de junho de 2009

Teoria constitucional inglêsa de mudança

Prof Farlei Martins doutorando da Puc-rio de Direito e professor da Ucan envia a seguinte matéria:

The Independent
June 15, 2009
Bruce Anderson: We need constitutional change – but now is not the time to
do it
The solution to improve the quality of government is for government to do
Suddenly, the constitution is under debate. The word is best understood by
reference to the Latin root. It is something which helps us to stand
together. At present, this country is not steady on parade. There is a
widespread feeling that we are badly governed. Ultimately, all civilised
forms of government depend on consent. Yet the House of Commons is more
unpopular than at any time since 1832.

So it is hardly surprising that there are demands for change. But these are
the worst possible circumstances in which to implement it. Constitutional
questions are difficult to answer. Hard thinking is required, in a calm
atmosphere. The public is not calm and this government has always been
thought-averse; hard spinning is more its style.

Moreover, any serious constitutional debate ought to start from two
premises. First, that on a long view – essential, where constitutions are
concerned – the UK has not been badly governed and has enjoyed much of the
most peaceful political evolution of any major country. Second, that there
are no ultimate answers to the most important constitutional questions.

Take three basic desiderata: democracy, strong government and individual
rights. Each is necessary; all are in conflict. If any one of them were
given untrammelled precedence, it could destroy the other two. That is where
politics should play a crucial role: arbitrating between the rival claims
according to the circumstances of the moment. Isaiah Berlin was right: "The
great goods cannot always live together".

Then there is representative democracy. Our current system has two obvious
merits. It usually produces strong governments. It always makes it easy for
the voters to sack the government. To paraphrase Lord Reith, we have
elective dictatorship tempered by assassination. But one can understand why
there are objections. Our elections can turn small pluralities into large
Parliamentary majorities. In 2005, 22 per cent of the electorate gave Labour
a majority of 60.

The British system is disproportionate. But the alternative to powerful dogs
is uncontrollable tails. Proportionality can allow minor parties to indulge
in a campaign of rolling blackmail. Israel is a classic example. If
proportionality is the highest good, Israel deserves top marks. It also has
a political system which makes it impossible to produce a strong government
able to conduct realistic negotiations with the Palestinians. "Israeli
proportional representation condemns the Middle East to endless conflict":

In Britain, the Liberals have been in favour of PR ever since they ceased to
be serious challengers for government. It would be interesting to see if
they retained their enthusiasm, should they ever displace Labour. Would they
really want a voting system which placed a preservation order on a crumbling
socialist rump? In recent weeks, the Liberals have been joined by some
Labour supporters who were perfectly happy with the current arrangements for
12 years, and have only changed their minds because they seem certain to
lose the next election. They are now advocates of hypocritical

As for Gordon Brown, he has taken up the constitution in a desperate search
for something to say which will not arouse the voters' instant contempt. But
anyone inclined to take him seriously should first scrutinise his motives
and the Labour government's record. Tony Blair came to power with an
ambitious programme: Scottish and Welsh devolution, regional assemblies,
human rights, judicial reform and Lords reform. But all these proposals had
one thing in common. None of them had been thought through. Mr Blair had
made a discovery. The size of his majority gave him the power to pass laws
first and think later, if at all; legislate in haste, repent at leisure.

Scottish devolution was introduced, partly in tribute to the shade of John
Smith and partly because Tony Blair was reluctantly convinced that it was
needed, to deprive the Scottish Nationalists of political momentum. Although
there was more force in that argument than the anti-devolutionists were
prepared to concede at the time, the Holyrood Parliament has not had the
desired effect. The Nats are stronger than ever.

Equally, the West Lothian question remains unanswered, even though Tam
Dalyell first asked it more than 30 years ago. If Scotland had a devolved
Parliament, he enquired, why should the Westminster MP for West Lothian (his
seat) be able to vote on laws which would not apply to his own constituents?
That would be manifestly unfair. In time, the resulting English resentments
would threaten the Union.

That said, thoughtlessness can sometimes produce acceptable outcomes. Tony
Blair embarked on Lords reform because he found hereditary peers
aesthetically unacceptable. 12 years on, nearly a hundred of them are still
there, and the hybrid House works surprisingly well. (The same cannot be
said of regional assemblies or of the judicial reforms, both of which have
been a waste of time and money.) Recently, there have been renewed calls for
an elected second chamber. In practice, that would mean a second-rate House
of Commons. Does anyone believe that this would be a useful contribution to
British public life?

As for human rights, Mr Blair rushed another thoughtless measure through
Parliament: the Human Rights Act. David Blunkett subsequently described it
as the worst mistake of the Blair first term. Instead, the Government ought
to have been deciding whether the jurisdiction of the European Court of
Human Rights (ECHR) was compatible with the rights of the British people to
make their own laws, and to enjoy security.

Last week, British judges over-ruled the Government. Ministers wanted to
constrain the movement of individuals who are considered to be a menace to
national security. But our judges decided that foreign judges in Strasbourg,
a long way from the threat, would not approve. Sovereignty is like an
elephant. It is not easy to define; it is easy to tell whether it is there.
Salus populi suprema lex. A government which has abrogated the right to take
vital decisions on public safety is no longer sovereign.

Nor is parliament. Though all recent governments have been guilty of turning
the Commons into a legislative sausage-factory, this lot have been even
worse than their predecessors. There is a solution, which should strengthen
Parliament and improve the quality of government. The government must do
less. A smaller legislative programme would allow time for proper debates.
The Queen's government must be carried on; ministers would still be able to
use whipped majorities to enact important measures. But fuller scrutiny
would ensure better legislation.

None of this will find favour with Mr Brown. He prefers strutting vagueness
about referendums and change. If he wants a referendum, he should hold the
one that was promised, on the EU constitution. As for change, the voters
know what they want: a change of government.

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