By Omar F M’Bai
“The true strength of a constitutional democracy is measured not by the constitutional questions it confronts, but by the wisdom, restraint, dialogue and institutional integrity with which those questions are addressed”
Constitutional democracies are not defined by the absence of disagreement. Indeed, disagreement is often the inevitable consequence of a constitutional order that deliberately distributes power among independent institutions. The Executive, the Legislature, the Judiciary, constitutional commissions, professional bodies and civil society each perform distinct constitutional functions. Their perspectives will not always coincide, nor should they. The true test of constitutional governance is therefore not whether differences arise, but whether those differences are managed in a manner that strengthens rather than diminishes public confidence in the constitutional order.
A mature constitutional democracy is one in which institutions recognise that constitutional fidelity extends beyond strict adherence to legal rules. It encompasses constitutional culture, a shared commitment to mutual respect, principled engagement, institutional consistency and the rule of law. As Lord Bingham stated in The Rule of Law (Allen Lane, London 2010) page 174, the rule of law is not merely a legal doctrine but “the nearest we are likely to approach to a universal secular ideal.” It demands that public power be exercised lawfully, fairly and within constitutional limits. Yet constitutional government also depends upon how institutions relate to one another in fulfilling their respective mandates.
The Constitution creates institutions with different responsibilities because constitutional governance benefits from multiple centres of judgment. Executive institutions are entrusted with governance, legislatures with law-making, courts with interpretation of the law, and other constitutional or professional bodies with responsibilities that enrich constitutional discourse. Independence, however, should never be misunderstood as institutional isolation. Independence protects decision-making from improper influence, but it does not discourage respectful engagement where constitutional questions arise. Indeed, dialogue between institutions, conducted without compromising constitutional autonomy, often strengthens constitutional decision-making by allowing differing legal perspectives to be fully understood before positions become entrenched.
Professor AV Dicey, in Introduction to the Study of the Law of the Constitution 10th edition, page 193, identified the rule of law and equality before the law as the central tenets of constitutional government. Those principles remind us that institutions derive their legitimacy not merely from constitutional creation but from the manner in which they exercise their authority. Institutional authority is sustained by consistency, transparency and fidelity to principle rather than by the popularity of particular outcomes.
Constitutional dialogue should therefore be viewed as a constitutional virtue rather than a constitutional concession. It does not require institutions to abandon their independence or compromise their legal conclusions. Rather, it reflects a willingness to engage respectfully with differing constitutional perspectives before disagreements are amplified through public discourse. Dialogue is not the opposite of institutional independence. Properly understood, it is often its highest expression. Institutions that are secure in their constitutional mandate have little reason to fear principled engagement with one another.
Against this background, the timing and manner of public institutional interventions assume particular importance. In the present context, where concerns arose regarding a matter of constitutional significance, engagement with the Attorney General and Minister of Justice, as the Government’s Chief legal adviser, could have provided an appropriate first opportunity for clarification and direct communication of those concerns. Where necessary, that engagement could then have extended to other relevant constitutional institutions before the issuance of a formal public statement.
Such an approach would neither diminish the independence of a Bar Association nor inhibit its responsibility to speak where constitutional principle requires it. Rather, meaningful engagement before public pronouncement can strengthen the authority of an institution’s eventual position by ensuring that it is informed by the fullest possible understanding of the relevant facts and legal perspectives. A public statement may ultimately still have been considered appropriate, but it would then have followed, rather than preceded, an opportunity for constitutional dialogue. In constitutional governance, institutions should, where circumstances permit, first speak with one another before speaking about one another.
An additional consideration concerns the information upon which a formal institutional response is founded. At the time of the public intervention, there appears to have been no corresponding formal announcement or public notice from the Government or the Judicial Service Commission confirming a nomination or appointment to the office of chief justice. If that was indeed the position, an important question naturally arises: what precisely was the formal statement responding to? Was there an officially communicated decision, or was the public discourse proceeding on information that had not yet been formally confirmed? This is not a question about the merits of any constitutional concern that may have existed, it is a question about process. A respected institution speaking with the authority of the organised Bar should, ideally, be responding to an ascertainable and sufficiently established institutional act, particularly where its intervention concerns a matter of considerable constitutional significance.
Where information has not yet been formally confirmed, constitutional dialogue assumes even greater importance. Again, engagement with the Attorney General and Minister of Justice, the Judicial Service Commission, or other relevant constitutional actors could first have clarified whether a decision had in fact been taken, the precise status of any proposed appointment, and the constitutional basis upon which the process was proceeding. Such engagement would not have prevented the Bar Association from subsequently expressing an independent and principled position. Rather, it could have ensured that any public intervention followed clarification of the relevant facts and an opportunity for institutional dialogue, thereby reducing the risk of an unconfirmed matter becoming prematurely polarised in the public domain.
The subsequent movement of the debate into social media also raises a broader question of professional responsibility and institutional confidence. Lawyers are, of course, entitled to hold differing interpretations of the Constitution and to contribute to public legal discourse. That freedom is an important feature of an independent legal profession. Yet where a sensitive constitutional matter remains unsettled, lawyers, particularly those whose professional standing may cause their views to be associated, rightly or wrongly, with the position of the organised Bar, should exercise particular care in the manner and forum in which competing legal opinions are expressed. A proliferation of conflicting legal conclusions on social media can transform a question requiring careful constitutional interpretation into a contest of personalities and positions, potentially generating public confusion rather than legal clarity.
Professional restraint in such circumstances should not be mistaken for silence. Nor should constitutional dialogue be mistaken for avoidance of difficult questions. The better objective is to ensure that constitutional concerns are addressed first through informed engagement, verified facts and appropriate institutional channels, while preserving the right of lawyers and professional bodies to speak independently where circumstances ultimately require it. Public confidence in the legal profession and the administration of justice is strengthened when legal disagreement is characterised by deliberation, consistency and institutional responsibility rather than unnecessary polarisation. Constitutional dialogue, at its best, allows difficult questions to be examined without turning constitutional difference into institutional division.
The importance of institutional consistency cannot also be overstated. Public confidence depends upon the belief that constitutional principles are applied consistently regardless of personalities, circumstances or prevailing public sentiment. Institutions inevitably earn respect not only through the correctness of individual decisions but through the consistency with which they defend constitutional values over time. Consistency transforms constitutional advocacy into constitutional credibility. On the contrary, inconsistency, however well intentioned, risks creating uncertainty regarding the principles by which institutions are guided.
Constitutional democracies should also remain capable of recognising and celebrating national excellence. Every nation benefit when its citizens distinguish themselves through scholarship, public service, professional achievement or contributions to the administration of justice. Such recognition promotes national pride and inspires future generations. Yet constitutional admiration and constitutional compliance are not competing ideals. A mature constitutional order is fully capable of celebrating distinguished achievement while ensuring that appointments and public office continue to be governed by constitutional processes. Merit and constitutional fidelity are complementary, not contradictory.
One of the greatest strengths of constitutional government is institutional humility. No constitutional institution is infallible. Constitutions themselves recognise this reality by establishing checks, balances and mechanisms of accountability. The willingness to listen, to explain, to engage and, where appropriate, to reconsider reflects confidence rather than weakness. As Justice Robert H. Jackson of the United States Supreme Court wisely remarked in Brown v Allen 344 U.S Supreme Court (1953), “we are not final because we are infallible, but we are infallible only because we are final.” The observation underscores that constitutional legitimacy rests not upon claims of perfection but upon faithful adherence to constitutional responsibilities.
The common law has long recognised that public confidence depends as much upon the appearance of fairness as upon fairness itself. In R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256, Lord Hewart CJ articulated one of the enduring principles of public law:
“Justice should not only be done but should manifestly and undoubtedly be seen to be done.”
Although directed to judicial impartiality, the principle has broader constitutional significance. Public confidence in constitutional institutions depends not only upon lawful outcomes but also upon transparent, principled and respectful constitutional processes.
The digital age presents new challenges to constitutional governance. Social media has transformed constitutional debate into an immediate and often polarised public conversation. Constitutional questions that might once have benefited from measured institutional engagement now frequently unfold before millions of observers in real time. Transparency remains indispensable in any democracy, yet institutions should also recognise that constitutional issues often benefit from careful reflection before public positions harden. Where opportunities exist for respectful institutional engagement, dialogue may clarify misunderstandings, narrow differences and strengthen public confidence without compromising independence. Public communication and constitutional dialogue are not mutually exclusive for each has an important place within a healthy constitutional democracy.
Comparative constitutional experience demonstrates that enduring democracies are characterised less by the absence of constitutional disagreement than by the constitutional character with which disagreement is managed. Institutions that engage one another respectfully, apply constitutional principles consistently and remain faithful to their constitutional mandates contribute not only to sound governance but also to the development of a constitutional culture worthy of public trust.
Ultimately, constitutions endure because institutions place constitutional principle above institutional pride and the public interest above institutional rivalry. Offices change hands, governments come and go, and those entrusted with constitutional responsibilities inevitably pass the torch to others. Institutions alone remain. Their enduring legacy will not be measured solely by the decisions they make but by the integrity, restraint and constitutional maturity they display in making them.
Constitutional dialogue is therefore not an optional courtesy. It is an essential attribute of constitutional governance. Institutional consistency is not merely desirable, it is indispensable to public confidence. Respectful engagement is not a sign of institutional weakness but of constitutional strength. Above all, constitutional democracies flourish when institutions remember that their highest duty is not to vindicate themselves, but to preserve the constitutional order they have been entrusted to serve.
In the final analysis, the strength of a constitutional democracy is measured not only by institutions it establishes, but by the constitutional culture it cultivates, one founded upon dialogue, institutional respect, consistency, integrity and enduring fidelity to the rule of law.
About the Author
Omar FaFa M’Bai is a Legal Practitioner, a governance advocate, and a parent based in Dubai, UAE. He writes regularly on institutional integrity, leadership, and education across Africa, Middle East, and Asia.