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68 Command of naval and military forces |
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Current Constitution |
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The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.
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Proposed Constitution |
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[Deleted. To be replaced by s.62A(v):
62A The power to govern defined
The executive power of the Commonwealth is the power to govern the Commonwealth. It is comprised of and limited to:
(i) The administration, implementation and protection of this Constitution;
(ii) The administration and implementation of the laws of the Commonwealth;
(iii) The administration of the Government of the Commonwealth;
(iv) The power on behalf of Australia to make agreements and arrangements with, and take action with, against or with respect to, those outside Australia, and to exercise any rights conferred, and fulfill any obligations imposed, on Australia by international law;
(v) The command of such naval, military and defence forces as are established by law;
(vi) The power to engage in activities for the benefit of Australia where in the circumstances prevailing at the time of such engagement the States lack the practical power to engage in those activities;
(vii) The power to make contracts, acquire property and spend appropriated money with respect to any subject on which the Commonwealth Parliament has the power to make laws;
(viii) The power to research or conduct an inquiry with respect to any subject other than the administration of a Government or entity which is accountable to a State Parliament; and
(ix) With respect to the exercise of the above powers, such of the powers of a natural person as can be exercised by a Government.]
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All Changes Displayed |
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The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.
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Drafting Notes |
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68.1 This section will be removed as it vests the control of the military in the Governor-General as the Queen’s representative. This is inconsistent with the Advancing Democracy model. The new definition of the power to govern in proposed s.62A includes as part of the executive power given to the Government the “command of such military and defence forces as are established by legislation”.
68.2 Scenario 6 in Appendix 1 to the Rationale for the Advancing Democracy model is based on a Governor-General using the present s.68 to take an active role in military decisions which contradict decisions taken by the Government. This is not a fanciful scenario. It is based on two arguments, either one of which is sufficient:
▸ The first is that s.68 is a reserve power, where the Governor-General has the discretion to act contrary to, or in the absence of, advice from his or her Ministers. This is a controversial interpretation, but one for which there is significant support.
▸ The second, which really cannot be disputed, is that the Governor-General can use s.68 in conjunction with ss.62 and 64 to prevail over a House of Representatives majority.
Note that neither argument relies on a strictly literal interpretation s.68.
68.3 In China Navigation Company Ltd v Attorney-General [1932] 2 KB 197 the English Court of Appeal considered a submission that the Crown’s power over the disposition of the armed forces was no longer a prerogative power, but had been replaced over the centuries by statute law which did not authorise the conduct the plaintiff challenged. Three judges unanimously rejected the submission at 214-5, 227-8 and 239. In brief, the reason was that the Act 13 Charles II c.6 declared that the command and disposition of the military “is ... and ever was the undoubted right of His Majesty”. This Act declaring the existing Crown prerogative was not affected by the Bill of Rights of 1689, which referred only to the raising of an army in peace time and did not deal with the command of any army lawfully raised. When 13 Charles II was repealed in 1863, the above preamble declaring the prerogative right was retained, and Parliament never subsequently sought to affect the Crown’s right to command. If this was the position in 1932, it must also have been the position in 1901 when Australia’s Constitution came into force. At that time, through s.68, the power was elevated above the level at which it could be altered by legislation.
68.4 All of the powers usually identified by constitutional writers as reserve powers were once prerogative powers of the Crown. The significance of the China Navigation case is that it confirms the power in s.68 meets this criterion. Such powers can be distinguished from the many discretionary powers which the Constitution vests in the Governor-General, such as the power to dissolve both Houses of Parliament under s.57 and the power to put proposed Constitutional alterations to a referendum: s.128. Interpretation of former prerogative powers written into the Constitution involves consideration of the Crown’s historical powers, whereas the construction of newly created discretionary powers does not. That the Kings of England did at one time personally command the armed forces, and retained the legal power to do so right up until Federation, is a factor to be considered in the interpretation of s.68.
68.5 Beyond an origin in the prerogative, there are no broadly accepted criteria for determining whether a power may be regarded as a reserve power. However some writers have pointed out, logically enough, that they can be seen as equivalent to emergency powers, to be used only in at a time of crisis: see e.g., Federation Under Strain, Geoffrey Sawer (1977, Melbourne University Press) at p.153. The command of the armed forces is quintessentially a power which may need to be exercised in an emergency. So s.68 meets a second criterion for a reserve power.
68.6 Some may see the vesting of the power in the Governor-General, as opposed to the Governor-General in Council, as a third indicator of a personal discretion. The author takes the view that this distinction is meaningless, for the reasons set out in Notes 63.2 and 65A.4. However, some respected commentators have taken a different view, such as Geoffrey Sawer in Federation Under Strain at p.151. Mr Ellicott was prepared to use this argument to justify his party’s actions in 1975 and - a crucial point in constitutional law - they won: see Commentary by R. J. Ellicott in Evans’ Labor and the Constitution 1972-1975 (Heinemann, Melbourne 1977) at p.293. Disturbingly, Sir Gerard Brennan seems to support the view that powers not expressed to be exercisable by the 'Governor-General in Council' are reserve powers, though for no apparent reason he omits s.68 from the list of such powers: see A Pathway to a Republic, George Winterton Memorial Lecture 2011, published in Constitutional Law and Policy, Vol. 13, No.1, March 2011 (LexisNexis).
68.7 Although s.68 has occasionally been referred to by High Court judges in passing, the only case in which its interpretation was potentially determinative of the result was Lane v Morrison [2009] HCA 29. The plaintiff had contended that s.68 vests in the Governor-General the prerogative power of the Crown as understood in the United Kingdom, and therefore legislation could not establish a military court which was inconsistent with that power. French CJ and Gummow J dismissed this argument at paragraphs [55] - [59] on the basis that s.68 “is placed within the system of responsible government”; an expression usually taken as indicating that the power is exercised with the advice of the Executive Council. However, the other five judges declined to comment on this point, deciding the case on other issues. There are isolated comments by single judges in other cases to the effect that the Governor-General’s role is titular only - for example Attorney-General for Victoria v The Commonwealth (1935) 52 CLR 533, per Starke J (in dissent); The Commonwealth v Quince (1944) 68 CLR 227, per Williams J - but such throwaway lines in cases where s.68 was not in issue have no weight at all. Nor do the statements of former Governors-General take the matter further. The content of a power conferred by the Constitution is not determined by the opinions of those who have held the power. Accordingly the argument that the Governor-General retains a reserve power under s.68 to act alone or contrary to advice remains open and is supported by the two strong arguments, and one lesser argument, referred to above.
68.8 Let us nevertheless assume that, as Justices French and Gummow said, the power in s.68 must be exercised within a system of responsible government. It is accepted that probably that was the intention of the ‘founding fathers’, and various High Court judges have said responsible government permeates the Australian Constitution. This is comprehensively dealt with in section 2 of Chapter 4 of Parliament, The Executive and the Governor-General by George Winterton (1983 Melbourne University Press). Most constitutional texts, where they deal with the issue at all, state that the Governor-General’s role under s.68 is titular only; that he is only nominally in charge of the military. And though China Navigation did not concern responsible government, Lawrence LJ at 228 stated that the prerogative in respect of the military was, like other prerogatives, constitutionally subject to the advice of Ministers.
68.9 Interpreting s.68 as subject to an implication of responsible government perhaps excludes any reserve power but does not remove the possibility of independent action by the Governor-General under s.68, because responsible government does not prevent the Governor-General appointing advisers who do not have the support of the majority in the House of Representatives. Sections 62 and 64 can be used to appoint ministers prepared to advise the Governor-General to use the s.68 power as he/she wishes.
68.10 Responsible government is not the same as government by the majority. They are separate, distinct concepts, which can (and ideally should) complement each other, but which may exist independently of each other.
68.10.1 “Responsible” government means a government which is responsive to, or accountable or answerable to, the elected representatives of the people. The degree of accountability may vary. A system could meet this criterion simply by requiring ministers to report to Parliament and to attend and answer questions from Parliament. It could go further, as ours does, by providing for Parliament to withhold funds from ministers if their policies are inappropriate. In our system of responsible government, Ministers must, subject to the 3 month exception, be Parliamentarians. The term ‘responsible government’ therefore covers a range of systems, only some of which would require Ministers to be supported by a majority in the lower house.
68.10.2 High Court judgments have recognised the convention that ministers must command the support of the lower house - see for example Gaudron, Gummow and Hayne JJ in Egan v Willis at [36] and [45] in relation to the New South Wales’ Constitution - but to take this further and say that majority rule is implied in s.64, such that no-one but a Minister favoured by the majority can legally be appointed, is another matter entirely. As Justice Kirby said in Egan v Willis [1998] HCA 71 at [152], 158 ALR 527 at 580:
“Care must be observed in the use of the notion of "responsible government" in legal reasoning. It is a political epithet rather than a definition which specifies the precise content of constitutional requirements. As with the notion of "representative government", it is possible to accept the words as a general description of a feature of constitutional arrangements in Australia without necessarily being able to derive from that feature precise implications which are binding in law."
Can we draw from the presence of responsible government in our Constitution an implication that no minister may be appointed unless he or she has majority support in the House of Representatives?
68.10.3 Section 64 states that ministers hold office during the pleasure of the Governor-General. The same expression is used in s.62 concerning the Federal Executive Council. There is no doubt what service at the Crown’s pleasure means: the servant may be appointed or dismissed by the Crown whenever it suits the Crown. Should authority be needed on this point it may be found in Fletcher v Nott (1938) 60 CLR 55 and more recently in Jarratt v Commissioner of Police [2005] HCA, 221 ALR 95. In the latter case Gleeson CJ said at [8]: “To say that an office is held at pleasure means that whoever has the power to remove the office-holder may exercise the power at any time, and without having to provide, either to the office-holder, or to a court examining the decision to remove, any justification of the decision.” See also the comments by McHugh, Gummow & Hayne JJ at [64] - [66], which refer to the phrase permitting termination at will. When the Constitution says ministers hold office at the Governor-General’s pleasure, which has a precise and accepted meaning, it is not possible to imply a specific limitation on this power, such that only those who have majority support may be appointed, from general notions of responsible government. To do so would contradict the section and impose a different rule.
68.10.4 Further, if as Justices French & Gummow did in Lane v Morrison, it is permissible to consider contributions to the debates of the founding fathers, it must also be permissible to consider their decisions on what not to include in the Constitution. Such decisions were made by majority vote and should carry more weight than statements from individual participants. The awkward truth is that the founding fathers expressly rejected Sir Henry Parkes’ proposal at the Sydney Convention of 1891 that the Constitution establish:
“An Executive, consisting of a governor-general and such persons as may from time to time be appointed as his advisers, such persons sitting in Parliament, and whose term of office shall depend upon their possessing the confidence of the house of representatives, expressed by the support of the majority.”
See Quick & Garran (1901), where the resolution is set out in full at p.125, and the decision to remove the requirement for Ministers to sit in Parliament and to have the confidence of the House is recorded at p.128.
68.10.5 Accordingly it cannot be said that Australia’s Constitution contains a legal rule that Ministers must always have majority support in the House. We have responsible government in that if the Government does not have support of the lower house, it loses the co-operation of that house and will soon find it difficult to govern. Legislation will not pass, and money for government may not be forthcoming. But the ministry is nevertheless legally entitled to remain in office if that is the ‘Governor-General’s pleasure’.
68.11 It follows that any requirement for s.68 to be exercised in accordance with the requirements of responsible government could be met by the Governor-General finding, either within or outside Parliament, persons who are prepared to join the Federal Executive Council and advise him or her how he or she wishes to be advised. In this way, the Governor-General can control the military. Lack of funds from Parliament may make this a short term option only, but in a crisis it is the short term which counts. Neither lack of funds nor the Governor-General’s ultimate dismissal of his additional advisers necessarily reverses the steps taken in the meantime, which are legally valid.
68.12 If Australia wants a genuinely democratic Constitution, it will have to create one. We cannot rely on judges doing the job for us, by implying into the Constitution words and principles which simply are not there. The democratic base in the present Constitution is insufficient to sustain further, more democratic implications. |
Current Constitution |
|
The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.
< Previous section Next section > |
Proposed Constitution |
|
[Deleted. To be replaced by s.62A(v):
62A The power to govern defined
The executive power of the Commonwealth is the power to govern the Commonwealth. It is comprised of and limited to:
(i) The administration, implementation and protection of this Constitution;
(ii) The administration and implementation of the laws of the Commonwealth;
(iii) The administration of the Government of the Commonwealth;
(iv) The power on behalf of Australia to make agreements and arrangements with, and take action with, against or with respect to, those outside Australia, and to exercise any rights conferred, and fulfill any obligations imposed, on Australia by international law;
(v) The command of such naval, military and defence forces as are established by law;
(vi) The power to engage in activities for the benefit of Australia where in the circumstances prevailing at the time of such engagement the States lack the practical power to engage in those activities;
(vii) The power to make contracts, acquire property and spend appropriated money with respect to any subject on which the Commonwealth Parliament has the power to make laws;
(viii) The power to research or conduct an inquiry with respect to any subject other than the administration of a Government or entity which is accountable to a State Parliament; and
(ix) With respect to the exercise of the above powers, such of the powers of a natural person as can be exercised by a Government.]
< Previous section Next section > |
All Changes Displayed |
|
The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.
|
Drafting Notes |
|
68.1 This section will be removed as it vests the control of the military in the Governor-General as the Queen’s representative. This is inconsistent with the Advancing Democracy model. The new definition of the power to govern in proposed s.62A includes as part of the executive power given to the Government the “command of such military and defence forces as are established by legislation”.
68.2 Scenario 6 in Appendix 1 to the Rationale for the Advancing Democracy model is based on a Governor-General using the present s.68 to take an active role in military decisions which contradict decisions taken by the Government. This is not a fanciful scenario. It is based on two arguments, either one of which is sufficient:
▸ The first is that s.68 is a reserve power, where the Governor-General has the discretion to act contrary to, or in the absence of, advice from his or her Ministers. This is a controversial interpretation, but one for which there is significant support.
▸ The second, which really cannot be disputed, is that the Governor-General can use s.68 in conjunction with ss.62 and 64 to prevail over a House of Representatives majority.
Note that neither argument relies on a strictly literal interpretation s.68.
68.3 In China Navigation Company Ltd v Attorney-General [1932] 2 KB 197 the English Court of Appeal considered a submission that the Crown’s power over the disposition of the armed forces was no longer a prerogative power, but had been replaced over the centuries by statute law which did not authorise the conduct the plaintiff challenged. Three judges unanimously rejected the submission at 214-5, 227-8 and 239. In brief, the reason was that the Act 13 Charles II c.6 declared that the command and disposition of the military “is ... and ever was the undoubted right of His Majesty”. This Act declaring the existing Crown prerogative was not affected by the Bill of Rights of 1689, which referred only to the raising of an army in peace time and did not deal with the command of any army lawfully raised. When 13 Charles II was repealed in 1863, the above preamble declaring the prerogative right was retained, and Parliament never subsequently sought to affect the Crown’s right to command. If this was the position in 1932, it must also have been the position in 1901 when Australia’s Constitution came into force. At that time, through s.68, the power was elevated above the level at which it could be altered by legislation.
68.4 All of the powers usually identified by constitutional writers as reserve powers were once prerogative powers of the Crown. The significance of the China Navigation case is that it confirms the power in s.68 meets this criterion. Such powers can be distinguished from the many discretionary powers which the Constitution vests in the Governor-General, such as the power to dissolve both Houses of Parliament under s.57 and the power to put proposed Constitutional alterations to a referendum: s.128. Interpretation of former prerogative powers written into the Constitution involves consideration of the Crown’s historical powers, whereas the construction of newly created discretionary powers does not. That the Kings of England did at one time personally command the armed forces, and retained the legal power to do so right up until Federation, is a factor to be considered in the interpretation of s.68.
68.5 Beyond an origin in the prerogative, there are no broadly accepted criteria for determining whether a power may be regarded as a reserve power. However some writers have pointed out, logically enough, that they can be seen as equivalent to emergency powers, to be used only in at a time of crisis: see e.g., Federation Under Strain, Geoffrey Sawer (1977, Melbourne University Press) at p.153. The command of the armed forces is quintessentially a power which may need to be exercised in an emergency. So s.68 meets a second criterion for a reserve power.
68.6 Some may see the vesting of the power in the Governor-General, as opposed to the Governor-General in Council, as a third indicator of a personal discretion. The author takes the view that this distinction is meaningless, for the reasons set out in Notes 63.2 and 65A.4. However, some respected commentators have taken a different view, such as Geoffrey Sawer in Federation Under Strain at p.151. Mr Ellicott was prepared to use this argument to justify his party’s actions in 1975 and - a crucial point in constitutional law - they won: see Commentary by R. J. Ellicott in Evans’ Labor and the Constitution 1972-1975 (Heinemann, Melbourne 1977) at p.293. Disturbingly, Sir Gerard Brennan seems to support the view that powers not expressed to be exercisable by the 'Governor-General in Council' are reserve powers, though for no apparent reason he omits s.68 from the list of such powers: see A Pathway to a Republic, George Winterton Memorial Lecture 2011, published in Constitutional Law and Policy, Vol. 13, No.1, March 2011 (LexisNexis).
68.7 Although s.68 has occasionally been referred to by High Court judges in passing, the only case in which its interpretation was potentially determinative of the result was Lane v Morrison [2009] HCA 29. The plaintiff had contended that s.68 vests in the Governor-General the prerogative power of the Crown as understood in the United Kingdom, and therefore legislation could not establish a military court which was inconsistent with that power. French CJ and Gummow J dismissed this argument at paragraphs [55] - [59] on the basis that s.68 “is placed within the system of responsible government”; an expression usually taken as indicating that the power is exercised with the advice of the Executive Council. However, the other five judges declined to comment on this point, deciding the case on other issues. There are isolated comments by single judges in other cases to the effect that the Governor-General’s role is titular only - for example Attorney-General for Victoria v The Commonwealth (1935) 52 CLR 533, per Starke J (in dissent); The Commonwealth v Quince (1944) 68 CLR 227, per Williams J - but such throwaway lines in cases where s.68 was not in issue have no weight at all. Nor do the statements of former Governors-General take the matter further. The content of a power conferred by the Constitution is not determined by the opinions of those who have held the power. Accordingly the argument that the Governor-General retains a reserve power under s.68 to act alone or contrary to advice remains open and is supported by the two strong arguments, and one lesser argument, referred to above.
68.8 Let us nevertheless assume that, as Justices French and Gummow said, the power in s.68 must be exercised within a system of responsible government. It is accepted that probably that was the intention of the ‘founding fathers’, and various High Court judges have said responsible government permeates the Australian Constitution. This is comprehensively dealt with in section 2 of Chapter 4 of Parliament, The Executive and the Governor-General by George Winterton (1983 Melbourne University Press). Most constitutional texts, where they deal with the issue at all, state that the Governor-General’s role under s.68 is titular only; that he is only nominally in charge of the military. And though China Navigation did not concern responsible government, Lawrence LJ at 228 stated that the prerogative in respect of the military was, like other prerogatives, constitutionally subject to the advice of Ministers.
68.9 Interpreting s.68 as subject to an implication of responsible government perhaps excludes any reserve power but does not remove the possibility of independent action by the Governor-General under s.68, because responsible government does not prevent the Governor-General appointing advisers who do not have the support of the majority in the House of Representatives. Sections 62 and 64 can be used to appoint ministers prepared to advise the Governor-General to use the s.68 power as he/she wishes.
68.10 Responsible government is not the same as government by the majority. They are separate, distinct concepts, which can (and ideally should) complement each other, but which may exist independently of each other.
68.10.1 “Responsible” government means a government which is responsive to, or accountable or answerable to, the elected representatives of the people. The degree of accountability may vary. A system could meet this criterion simply by requiring ministers to report to Parliament and to attend and answer questions from Parliament. It could go further, as ours does, by providing for Parliament to withhold funds from ministers if their policies are inappropriate. In our system of responsible government, Ministers must, subject to the 3 month exception, be Parliamentarians. The term ‘responsible government’ therefore covers a range of systems, only some of which would require Ministers to be supported by a majority in the lower house.
68.10.2 High Court judgments have recognised the convention that ministers must command the support of the lower house - see for example Gaudron, Gummow and Hayne JJ in Egan v Willis at [36] and [45] in relation to the New South Wales’ Constitution - but to take this further and say that majority rule is implied in s.64, such that no-one but a Minister favoured by the majority can legally be appointed, is another matter entirely. As Justice Kirby said in Egan v Willis [1998] HCA 71 at [152], 158 ALR 527 at 580:
“Care must be observed in the use of the notion of "responsible government" in legal reasoning. It is a political epithet rather than a definition which specifies the precise content of constitutional requirements. As with the notion of "representative government", it is possible to accept the words as a general description of a feature of constitutional arrangements in Australia without necessarily being able to derive from that feature precise implications which are binding in law."
Can we draw from the presence of responsible government in our Constitution an implication that no minister may be appointed unless he or she has majority support in the House of Representatives?
68.10.3 Section 64 states that ministers hold office during the pleasure of the Governor-General. The same expression is used in s.62 concerning the Federal Executive Council. There is no doubt what service at the Crown’s pleasure means: the servant may be appointed or dismissed by the Crown whenever it suits the Crown. Should authority be needed on this point it may be found in Fletcher v Nott (1938) 60 CLR 55 and more recently in Jarratt v Commissioner of Police [2005] HCA, 221 ALR 95. In the latter case Gleeson CJ said at [8]: “To say that an office is held at pleasure means that whoever has the power to remove the office-holder may exercise the power at any time, and without having to provide, either to the office-holder, or to a court examining the decision to remove, any justification of the decision.” See also the comments by McHugh, Gummow & Hayne JJ at [64] - [66], which refer to the phrase permitting termination at will. When the Constitution says ministers hold office at the Governor-General’s pleasure, which has a precise and accepted meaning, it is not possible to imply a specific limitation on this power, such that only those who have majority support may be appointed, from general notions of responsible government. To do so would contradict the section and impose a different rule.
68.10.4 Further, if as Justices French & Gummow did in Lane v Morrison, it is permissible to consider contributions to the debates of the founding fathers, it must also be permissible to consider their decisions on what not to include in the Constitution. Such decisions were made by majority vote and should carry more weight than statements from individual participants. The awkward truth is that the founding fathers expressly rejected Sir Henry Parkes’ proposal at the Sydney Convention of 1891 that the Constitution establish:
“An Executive, consisting of a governor-general and such persons as may from time to time be appointed as his advisers, such persons sitting in Parliament, and whose term of office shall depend upon their possessing the confidence of the house of representatives, expressed by the support of the majority.”
See Quick & Garran (1901), where the resolution is set out in full at p.125, and the decision to remove the requirement for Ministers to sit in Parliament and to have the confidence of the House is recorded at p.128.
68.10.5 Accordingly it cannot be said that Australia’s Constitution contains a legal rule that Ministers must always have majority support in the House. We have responsible government in that if the Government does not have support of the lower house, it loses the co-operation of that house and will soon find it difficult to govern. Legislation will not pass, and money for government may not be forthcoming. But the ministry is nevertheless legally entitled to remain in office if that is the ‘Governor-General’s pleasure’.
68.11 It follows that any requirement for s.68 to be exercised in accordance with the requirements of responsible government could be met by the Governor-General finding, either within or outside Parliament, persons who are prepared to join the Federal Executive Council and advise him or her how he or she wishes to be advised. In this way, the Governor-General can control the military. Lack of funds from Parliament may make this a short term option only, but in a crisis it is the short term which counts. Neither lack of funds nor the Governor-General’s ultimate dismissal of his additional advisers necessarily reverses the steps taken in the meantime, which are legally valid.
68.12 If Australia wants a genuinely democratic Constitution, it will have to create one. We cannot rely on judges doing the job for us, by implying into the Constitution words and principles which simply are not there. The democratic base in the present Constitution is insufficient to sustain further, more democratic implications. |
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