The Constitution of Samoa is an excellent example of what one might call a ‘minimal acceptable constitution’ based on the Westminster Export model:
* a single chamber Parliament elected by First Past the Post for five year terms
* a Prime Minister and Cabinet responsible to Parliament
* an indirectly elected ceremonial Head of State, with narrowly specified reserve powers
* a fairly minimal bill of rights (just ECHR-essentials)
* an independent judiciary headed by a supreme court with powers of constitutional review
* a few ‘fourth branch’ institutions – a public service commission, an auditor-general, an ombudsman, and a judicial service commission (but no electoral commission)
* a fairly simple amendment formula (two-thirds majority in Parliament)
The design is crudely majoritarian. A unicameral Parliament elected by FPTP allows little scope for the representation of minorities. There are few internal checks and balances, since key appointments to the judiciary and fourth branch institutions are made solely by the Prime Minister (and not, as in most other Westminster Export constitutions, in consultation with the Leader of the Opposition). Even the Speaker of Parliament, instead of being elected by the House in a secret non-partisan ballot, is in effect chosen by the Prime Minister. Moreover, many features found in more recent constitutions are absent: there are no provisions on campaign finance regulation, for example, or freedom of information. The result is a very strong executive and a rather weak, reactive Parliament – especially considering the country’s long tradition of one-party dominance.
Nevertheless, the Constitution of Samoa is an elegant and fascinating example of its genre. It is tightly and neatly drafted. It represents both (a) an efficient distillation of the essential principles of the Westminster Model into the form of a written Constitution, and (b) the intelligent adaption of those principles to a very specific context: a thriving traditional, religious, indigenous culture.
Samoa’s odd compromise between a monarchy and a republic is a good example of its adaptation of the Westminster Export model to national culture. The office of Head of State is now elective, being chosen by Parliament, but in practice and by convention one of the country’s four paramount chiefs is invariably elected to that position. Another intriguing adaptation is the electoral system, in which people vote not in their constituency of residence, but in their traditional home villages, with only traditional chiefs being eligible for election. Two seats are reserved for non-indigenous Samoan citizens, who do not fit within this structure and who have their own electoral roll.
Also notable is how the Constitution’s structural and substantive provisions, which are of a minimal, liberal-procedural nature, are paired with a rhetorical – even theological – preamble which performs some of the nation-defining, identity-proclaiming functions of a Constitution.
A ‘Samoan Model’ for Scotland?
An independent Scotland can do better than this. We need to protect proportional representation, and do more to ensure that ‘fourth branch’ institutions are not captured by the governing party. There’s also scope for more reliance on referendums (especially in the amendment process, as a mechanism of popular sovereignty), a more expansive bill of rights, and greater attention both to the exclusion of money and the inclusion of the public in the policy-making process. Yet, we could also do much worse. With a few relatively minor changes along these lines, the Constitution of Samoa might provide a template for an acceptable ‘starter constitution’ to at least get us through the first years of independence.
The relative modesty of such a Constitution would be its greatest asset, since it would meet those who oppose written Constitutions (whether on principle or through obstinate British ignorance) half way. Rhetorical preamble aside, it is a Constitution with limited ambitions. It does not set out grand sweeping visions. It doesn’t try to change the world through constitutional prescription. It leaves a lot of room for ordinary politics. It simply provides a fairly neutral institutional and legal framework in which parliamentary democracy can take place. Given that not having a written Constitution is simply not an option open to a newly independent state that wishes to be taken seriously in the community of democracies today, that should be something to which even conservatives can agree.