AUTOCHTHONY
Finally, reflecting upon the endurance qualities of the goods produced by our constitution factory, I want to say just a word about autoch- thony. Dr Wheare discusses it in his Constitutional Structure of the Commonwealth, and Professor Kenneth Robinson added his contribution in November 1961, in the first number of the Journal of
Commonwealth Political Studies.
I confess that I do not quite understand the urge to have a new constitution produced in such a way that it can claim to be an entirely local product. It is not as if independence constitutions enacted in the United Kingdom are imposed upon the country. They are always the outcome of full consultation and discussion and in the majority of cases independence constitutions have been preceded by one or more full-scale conferences. It can justly be claimed that the constitution gives the people what they ask for, remembering that by ‘the people’ one does not necessarily mean only the majority. If safeguards are provided for particular communities or minorities, that, surely, makes the constitution more one which is wanted by the people than if it contained nothing except that which would satisfy a majority? Of course, the original independence constitution may be found by experience to be in need of refashioning to fit it to unforeseen dimensions of independence and, even if it is not, one can understand that pride in the attainment of independence may engender a natural desire to have a constitution made in the country itself and not in the United Kingdom. But if autochthony takes the extreme form of deliberately creating a break in legal continuity—of producing a constitution without legal roots, which does not depend for its enactment upon the procedure laid down in the original independence constitution for amendment and revocation, then I should have thought that any urge in that direction is one which local politicians would be well advised to suppress; for a constitution produced in that way must have an insecure foundation in law. It may be that legal principle must concede that there is, in theory, some method by which a nation can give itself a constitution by a process, so to speak, of spontaneous combustion; but there are many ways in which it might be suggested that that should be done, and who can say what is a permissible method in law? It may be that the obvious procedure is for the Government which happens to be in power to produce a draft, submit it to a referendum and, if approved, adopt it. It was in that way that Ghana provided itself with a constitution, but all the prescribed legal forms were observed, the restrictions on legislative power having been lawfully repealed before a Constituent Assembly was set up by law. But suppose that had not been done. Could one assume that, as a matter of law, the Government in power and not, for example, a coalition of all political parties, would be the right people to prepare and present a draft; and that the franchise upon which the referendum is based would be found acceptable if the validity of the constitution were challenged? There seems no doubt that legalcontinuity was broken in establishing the 1937 Constitution of what is now the Republic of Ireland; in India the break is not so dear; Pakistan seems to be secure. Whether Dr Wheare’s expectation is well-founded (that Members of the Commonwealth will, as a rule, seek to achieve autochthony) and, if so, how far they will go, remains to be seen. In Malaya, the question does not appear to arise. In my opinion their constitution undoubtedly derives its legal force from the States and the Federation as well as from the United Kingdom. Nor should I think it had any relevance for Canada, Australia and New Zealand, unless the majority of the population first autochthonize their blood.
It may be, perhaps I should say it is highly probable, that the Courts would stretch many points to uphold the validity of a constitution which can be said in broad terms to have been made or approved by the people of the country; but, however strong national sentiment may be, for my part I should not have thought it worth while to take the risk
However, I am not a politician, I am only a lawyer, a retired foreman of a workshop which has performed during the last fifteen years, and is continuing to perform, a valuable service for the Commonwealth; and, taking the broad, long-term view, a valuable service for the world.