What is the secret sauce? What are the 7 herbs and spices that contribute to a well functioning democracy and civil society? Some suggest that it is a robust and rigorous constitution and frequently point to the US Constitution. I myself frequently like to quote the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
These are beautiful sentiments expressed beautifully. The Fourth Amendment is also pretty good in my opinion:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Is it just the constitution? Great Britain does not have a written constitution. And consider for example the following from a constitution of a different nation:
- … citizens of XXXX are guaranteed freedom of speech, of the press, and of assembly, meetings, street processions and demonstrations. Exercise of these political freedoms is ensured by putting public buildings, streets and squares at the disposal of the working people and their organisations, by broad dissemination of information, and by the opportunity to use the press, television, and radio.
- The privacy of citizens, and of their correspondence, telephone conversations, and telegraphic communications is protected by law.
How about from a different constitution of yet a different nation:
- Citizens are guaranteed freedom of speech, of the press, of assembly, demonstration and association. The State shall guarantee conditions for the free activity of democratic political parties and social organizations.
- Citizens are guaranteed inviolability of the person and the home and privacy of correspondence. No citizens can be placed under control or be arrested nor can their homes be searched without a legal warrant.
Sound pretty good. But does anyone want to venture a guess where these came from? The former is from the Constitution of the United Soviet Socialist Republics (USSR) and the later is from the Constitution of the Democratic People’s Republic of Korea (North Korea).
- The separation of powers between the legislature, the executive and the judiciary.
- The law is made by representatives of the people in an open and transparent way.
- The law and its administration is subject to open and free criticism by the people, who may assemble without fear.
- The law is applied equally and fairly, so that no one is above the law.
- The law is capable of being known to everyone, so that everyone can comply.
- No one is subject to any action by any government agency other than in accordance with the law and the model litigant rules, no one is subject to any torture.
- The judicial system is independent, impartial, open and transparent and provides a fair and prompt trial.
- All people are presumed to be innocent until proven otherwise and are entitled to remain silent and are not required to incriminate themselves.
- No one can be prosecuted, civilly or criminally, for any offence not known to the law when committed.
- No one is subject adversely to a retrospective change of the law.
The pages of Catallaxy Files are littered with tales of the capricious and arbitrary exercise of executive power; from passage of retrospective laws, to confiscation of property and property rights without due process or due compensation to administrative agencies being given quasi judicial powers.
The Australian constitution does not need to be changed for our liberties and freedoms to be taken away (even though I would still prefer a bill of rights). Our liberties and freedoms are slowly being taken by an ever expanding administrative state, creeping into every nook of our lives. We swim along like boiling frogs.
And it is not just the exercise of power. It is asymmetric warfare. Can any individual or a small business really compete in the courts against the state in a judicial process designed for and by the state?
Has Australia passed the point of where the marginal benefits of regulations need to be greater than the marginal costs? Are we now at a point where the beast is so big and voracious that measured marginal costs are no longer costs to the citizens but costs to the state?
There needs to be a better way, because the current pathway leads to a our own Glorious Leader.
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